Director of Public Prosecutions v Cairney
[2018] VCC 282
•14 March 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-17-02018
Indictment No. H10616107
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DEAN CAIRNEY |
---
JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 7 March 2018 | |
DATE OF SENTENCE: | 14 March 2018 | |
CASE MAY BE CITED AS: | Director of Public Prosecutions v Cairney | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 282 | |
REASONS FOR SENTENCE
---
Subject: CRIMINAL LAW
Catchwords: Sentence – one charge of aggravated burglary – one charge of criminal damage
Legislation Cited: Crimes Act 1958, s77, s197(1); Sentencing Act 1991
Cases Cited:Hogarth v R (2012) 37 VR 658; DPP v Meyers (2014) 44 VR 486; Bradshaw v R [2017] VSCA 273; Boulton v R; Clements v R; Fitzgerald v R (2014) 46 VR 308; Gale v R [2014] VSCA 168; Filiz v R [2014] VSCA 212 and Anderson v R [2014] VSCA 255
Sentence: Total effective sentence 9 months imprisonment; 72 days PSD; Community Correction Order of 2 years with conditions. 6AAA declaration 18 months imprisonment.
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms N Burnett | Solicitor for the Office of Public Prosecutions |
| For the Offender | Ms P Chaya | Victoria Legal Aid |
HIS HONOUR:
1 Dean Cairney, you have pleaded guilty to the following offences:
· Charge 1: the Director of Public Prosecutions charges that you, at Melbourne in Victoria on 26 December 2016, entered as a trespasser, a building situated at 121 Marshall Road, Airport West, Victoria, with intent to commit an offence involving intentional damage without lawful excuse, of property belonging to another therein and knew that a person was then so present, or was reckless as to whether or not a person was then so present.
The offence of aggravated burglary is contrary to s.77 of the Crimes Act 1958 and carries a maximum penalty of twenty-five years’ imprisonment.
· Charge 2: the Director of Public Prosecutions charges that you, at Melbourne in Victoria on 26 December 2016, intentionally and without lawful excuse, damaged a television belonging to Nathan Robertson.
The offence of damaging property is contrary to s.197(1) of the Crimes Act 1958 and carries a maximum penalty of ten years’ imprisonment.
The circumstances of the offending
2 The prosecution has provided a document headed “Prosecution Opening on Plea”, which provides a written summary of the circumstances surrounding your offending. Such summary has been marked as an exhibit (Exhibit 2) and has been accepted by you and your counsel as an appropriate representation of the offending. The important matters of such summary are:
· You were born on 14 May 1992 and was twenty-four years old at the time of the offending. You are now twenty-five years old. At the time of the offending you were living at 1/65 Parer Road, Airport West, with a friend and his friend’s mother. The complainant is Nathan Robertson, who, at the time of the offending, was thirty years old.
· On Monday 26 December, at approximately 12.20am (that is, twenty minutes into Boxing Day after Christmas day), you went to the rear yard of the complainant’s home at 121 Marshall Road, Airport West. The complainant lives at that address with his mother and stepfather.
· You went to the Western wing of a sunroom at the rear of the premises and found the complainant asleep on a couch in the sunroom. You opened the window and climbed into the sunroom (constituting Charge 1 – aggravated burglary).
· The complainant heard the sound of the window sliding open and then heard you say “hello”. The complainant recognised your voice, as you had known each other for approximately ten years.
· You then commenced to damage the complainant’s television, causing the complainant to run into the living room where his mother, Heather Holden (“Holden”) was watching television. The complainant told Holden to call the police and then the complainant took Holden’s mobile and called 000.
· The complainant went to the front door and observed you running down the driveway along Sexton Street, causing the complainant to yell to you: “Yeah, that’s it run”. At that time you stopped, turned around and looked at the complainant, but then continued running along Sexton Street.
· At the time of the offending, the complainant observed you to be wearing a black singlet, black-coloured shorts with white-coloured stripes, white runners, and a black hat.
· Police attended the home of the complainant who provided a description of you to the police.
· On Monday, 26 December 2016 at approximately 9.55am, police executed a search warrant at your address and located and seized the following items: black coloured shorts with white-coloured stripes, white-coloured Nike runners and a black-coloured singlet.
· You were arrested and conveyed to the Moonee Ponds Police Station for interview. During your record of interview, you denied any involvement and gave the following answers: –
– “Wasn’t there.” (Question and Answer 87);
– “It wasn’t me.” (Question and Answer 87);
– “It wasn’t me.” (Question and Answer 90);
– “Look, online yeah said some nasty things so we got a bit upset at each other. I don’t know, maybe that’s why he’s trying to blame me.” (Question and Answer 96).
·You were released pending summons and subsequently latent fingerprints located on the window at the premises of the complainant matched your fingerprints.
3 Counsel for the prosecution tendered several photographs contained in a booklet of photographs (see Exhibit 3).
4 Counsel for the prosecution set out a chronology and I note that you were charged on 15 February 2017. A filing hearing took place on 10 March 2017, a committal mention on 5 June 2017 and the matter was resolved prior to a committal on 6 October 2017. Counsel for the prosecution accepts that the plea of guilty was an early plea.
5 In particular, it is agreed that you have spent seventy-two days in custody from 3 September 2017 to 15 November 2017 (inclusive), when you were bailed for these offences.
6 Application is also made for a forensic sample order and a disposal order, both of which I was informed by your counsel were not opposed.
Your criminal history
7 Your Victoria Police Criminal History Report was tendered (Exhibit 1). I note the following:
(a)On 22 September 2010 at the Mansfield Children’s Court, you were found guilty of careless driving of a motor vehicle and learner driver driving a vehicle without an experienced driver; and sentenced, without conviction, to an aggregate fine of $200;
(b)On 23 October 2015 at the Broadmeadows Magistrates’ Court, you were convicted of a variety of offences, including learner driver driving a vehicle without experienced driver; committing an indictable offence whilst on bail; possessing counterfeit money; driving without L-Plates displayed; trafficking Cannabis; possessing anabolic steroids; dealing with property suspected to be proceeds of crime and the possession of Cannabis. You were primarily sentenced to a community correction order for twelve months, commencing on 23 October 2015 and having the following conditions beyond the core conditions:
– supervision
– treatment and rehabilitation for drug abuse or dependency and a mental health assessment;
(c)On 6 October 2016, you were convicted of possessing a drug of dependence (not named),committing an indictable offence whilst on bail, failing to answer bail; driving whilst authorisation suspended; possessing cannabis, and a licence holder, failure to notify change of residential address, and again sentenced to a community correction order for nine months, commencing on 6 October 2016 and having the following conditions, beyond the core conditions:
– supervision
– treatment and rehabilitation of drug abuse or dependency
– the attendance at any offending behaviour programs as directed.
8 I was informed by your counsel that on 28 June 2017, you pleaded guilty to offences which occurred on 5 November 2016: recklessly causing injury and criminal damage, together with breaches of the two community corrections orders already referred to. At that time you were sentenced to six months’ imprisonment, which ran from 5 March 2017 and ended on 4 September 2017. However, you continued to be in remand for a further 72 days on the subject charges, until you were bailed on 15 November 2017. As I say, it is agreed that you have spent 72 days in pre-sentence detention in relation to these offences.
Your personal circumstances and background
9 Your counsel tendered the following material:
(a) Outline of Defence Plea Submissions (Exhibit A);
(b) Letter from Odyssey House, dated 1 March 2018 (Exhibit B);
(c)A Certificate of Achievement relating to harm-reduction programs, dated 26 July 2017 and a certificate relating to the Relapse Prevention Treatment Program, dated 29 August 2017, together with the results of a urine sample test on 14 March 2017, which was reported as negative for drug taking (see Exhibit C).
10 Based on such material, and the various submissions made by your counsel, I note the following:
·You were born and raised in the Essendon area of Melbourne, with your biological father separating from your mother before you were one. Apparently you had no further contact with your father until you were about ten years old and since then contact has been infrequent.
·When you were about four years of age, your mother married a police officer in 1996, and from that relationship came two half-brothers born respectively, in 1997 and 2000. You describe your relationship with your half-brothers at that time to be good.
·Your mother then separated from that stepfather in 2002, when you were about ten years of age. Your then stepfather, assumed full custody of your stepbrothers and you have had little contact with them since, which still upsets you. At that stage, your mother became depressed and addicted to alcohol and prescription medication and was abusive when she was substance-affected.
·When you were fourteen years of age, your mother was admitted to long-term psychiatric care for six months, during which time you lived with your aunt and uncle.
·In around 2009, your mother re-partnered and married your present stepfather, John Conyn and a further half-brother was born from that relationship, who is now nine years old.
·Your mother died from a drug overdose in 2013, when you were twenty-one years of age, and although the relationship had been difficult, you instructed your counsel that you loved your mother and struggled to cope with her death. You maintain a close relationship with your stepfather, John Conyn, who is your primary support.
·You attended high school but, according to you, “struggled academically” and missed much school as a result of being depressed, with your home life impacting on your school work during your teenage years. You stopped attending school at the end of Year 10.
·Although you experienced episodes of depression during your teenage years, you did not engage with any treatment. When you mother died, you were engaged with Headspace for three to four sessions, but was not yet ready to deal with your grief. Since July 2017, when in custody, you commenced treatment on Effexor for your depression.
·You worked casually at McDonald’s when you were in secondary school and after leaving school began to work in casual labour-hire jobs in the construction industry. When you were aged 19, you worked full time in mining at Woods Point for a year, before returning to Melbourne.
·At the time of the subject offending you were working casually as a labourer and a jockey, delivering produce. You have advised your counsel that you would like to return to work as soon as possible, pending the outcome of this proceeding.
·You instructed your counsel that you began abusing alcohol and cannabis from when you were fourteen, to cope with depression. Substance use spiralled out of control when your mother died and you dabbled with Methylamphetamine.
·Your primary addiction was alcohol and you attended some treatment sessions as a part of your earlier community correction order, but did not detox fully until your arrest and detention in custody from March 2017.
·One of the terms of your bail in November 2017 was that you take up residence in Odyssey House, where you remained until February 2018. You instruct your counsel that you have remained substance free since your exit from Odyssey House on that date.
Circumstances surrounding offending
11 At the time of the subject offending, you informed your counsel that you were heavily abusing substances, including alcohol, cannabis and methylamphetamine. In particular, you found Christmas Day 2016 and your birthday, to be particularly difficult after your mother’s death. On 25 December 2016, you chose to isolate yourself from your stepfather and invited a few friends over to your premises, where you drank well into the evening when your friends left.
12 In a state of heavy intoxication, you left your house on foot and went to the property where the complainant was living. You instructed your counsel that you and the complainant had had an argument a few days before. You cannot remember the details and have little recollection of the offending.
13 Since your release from custody, you undertook an intensive in-house rehabilitation program at Odyssey House. Since the completion of that program, you have been staying with your stepfather in Woods Point and have remained substance free. You have not had any contact with the complainant since the offending.
Mitigating circumstances relied on by your counsel
14 It was submitted by your counsel that the following matters are relevant in mitigation of sentence:
(a)There was an early plea of guilty entered following negotiation. The plea is of significant utilitarian value, as it obviates the need for a trial (and a committal was not required) and it also obviates the need for the complainant to give evidence at a trial of this matter;
(b)When in custody, in part, on remand for these offences, such experience was a “powerful wake-up call”, about how your substance use was spiralling out of control;
(c)There are no prior convictions for violent offending or criminal damage, and this offending, seemingly, was out of character;
(d)Although being affected by alcohol is not a mitigating factor, it does help explain the context of the offending;
(e)That you have good prospects of rehabilitation, effectively undergoing eight months’ of detoxification in custody and three months’ of in-house rehabilitation at Odyssey House following your release on bail. Furthermore, on your instructions, you are keen to find employment;
(f)In distinction to times past, there is family support. You are now living with your stepbrother and stepfather, together with extended family. You get on well with your stepfather and he is agreeable to you staying there.
15 Your counsel accepted that general and specific deterrence are relevant and also, she submitted, community protection is a relevant factor. However, in general terms, she submitted that those factors should be moderated to account for your still youthful years and prospects of rehabilitation.
16 Your counsel also acknowledged that the offence of aggravated burglary is a serious offence as, in this case, it involves you entering a private dwelling and, in particular, entering the room where the complainant was sleeping. However, your counsel did highlight the following matters:
·The aggravating feature is the presence of a victim, as opposed to any use of a weapon.
·The co-offending was criminal damage, as opposed to any assault or any physical harm inflicted on any victim.
·There was no pre-planning or, indeed, any attempt to disguise your presence, as clearly, the complainant recognised your voice and your features.
·The extent of the damage is limited to one television.
17 Your counsel submitted that a sentence of seventy-two days’ (served as pre-sentence detention) is within range. In the alternative, she submitted that a term of imprisonment in combination with a community correction order, with conditions of mental health treatment, drug and alcohol counselling, community work and an Offender’s Behaviour Program, is also within range. In particular, she referred to the well-known decision of Boulton v R; Clements v R; Fitzgerald v R (2014) 46 VR 308 and notes that the requirements of general deterrence and just punishment could be adequately accommodated through the added conditions to the core conditions attached to a community correction order.
18 In essence, it was submitted that although accepting that the offence of aggravated burglary is a serious offence, the circumstances of this matter are far from the most serious example of such offence for the reasons which have already been outlined by your counsel earlier.
The response of the prosecution
19 Although accepting that no physical injuries occurred, nor any type of weapon involved, counsel for the prosecution notes that would have been still frightening for the complainant. The nature of the offending was still a confrontational aggravated burglary by definition and it is for the Court to assess the objective seriousness of the case.
20 Counsel for the prosecution also noted your attitude to prior sentences of community corrections orders, both of which have been breached and, of course, you did perform criminal damage once you had gained entry.
21 I was informed by counsel for the prosecution that her instructions were that there should be an immediate term of imprisonment. I should also add, I was recently informed those instructions have been formalised that indeed it would be inappropriate for a sentence to be limited to time served.
Community correction order
22 I directed that you be assessed to determine your suitability for a community correction order. Such assessment occurred on 8 March 2018, and I have received a report from Ms Joyce Valacos, a Community Corrections officer.
23 In that report Ms Valacos advised that you had been assessed as suitable for a community correction order, with the following conditions recommended: treatment and rehabilitation for drug use, treatment and rehabilitation for alcohol use, treatment and rehabilitation in relation to mental health treatment and rehabilitation in relation to programs reducing reoffending, and supervision.
24 I do note that Community Correctional Services have assessed you as being “high risk of reoffending” pursuant to the Level of Service/Risk assessment tool.
Conclusion
25 As is made clear in Hogarth v R (2012) 37 VR 658, the offence of aggravated burglary has the potential to be a very serious offence, as made manifest by the maximum penalty of 25 years’ imprisonment. It is important to assess the object seriousness of such offending and I refer to the Court of Appeal decision of DPP v Meyers (2014) 44 VR 486, wherein the Court of Appeal (consisting of Maxwell P, Redlich and Osborne JJA) stated:
“As recent decisions of this court have confirmed,[1] Hogarth is not to be viewed as if it established a carefully-defined zone of ‘exemption’ from current sentencing practices, such that a judge imposing a sentence for aggravated burglary would have to decide whether the particular case fell within the scope of ‘confrontational aggravated burglary’ as defined by the SAC. [2]
Rather, the decision in Hogarth should be viewed as having removed the constraint of CSP for aggravated burglary in all of its more serious forms. As can be seen from the SAC definitions set out above, there is a great degree of overlap between the essential features of ‘confrontational’ aggravated burglary, on the one hand, and ‘intimate relationship’ aggravated burglary on the other. Properly analysed, the latter is a subset of the former. Both are essentially grievance-driven; both involve confronting the person against whom the grievance is held; and, in both cases, the aggravated burglary is typically accompanied by violence or threats of violence.”[3]
[1]Reference was made to v Gale v R [2014] VSCA 168; Filiz v R [2014] VSCA 212 and Anderson v R [2014] VSCA 255; Hogarth v R (op cit)
[2]This is the 2011 report of the Sentencing Advisory Council (“SAC”).
[3]DPP v Meyers (op cit) at paragraphs [36]-[37]
26 I also refer to that part of the decision headed “Assessing the seriousness of a particular incidence of aggravated burglary” where the Court of Appeal stated:
“Determining the sentence to be imposed for any particular offence of aggravated burglary will in large part depend on a careful assessment of the (relative) seriousness of the offence. There was argument on the appeal about how the gravity of this particular instance of aggravated burglary should be assessed.
In our view, the following considerations will ordinarily be relevant to such an assessment:
• the offender’s intent at the point of entry (whether to steal or commit assault or cause damage);
• the mode of entry (e.g., by forcing a door or breaking a window);
• whether the offender was carrying a weapon;
• whether the offender was alone or in company;
• the time of day at which the burglary took place;
• whether the offender knew or believed about who would be inside and/or about where the person(s) would be; and
• whether the offender was someone of whom the victim was particularly frightened.”[4] (Footnote omitted.)
[4](Op cit) at paragraphs [47]-[48]
27 I do accept that the circumstances of this matter are a type of confrontational aggravated burglary, where the mode of entry was opening a window to enter a room where you knew the complainant was sleeping. Such entry occurred within the very early hours of Boxing Day, 26 December 2016, when you were drunk. You were neither carrying a weapon, nor in company of others, but did criminal damage to the television in the room.
28 I also refer to the recent Court of Appeal decision of Bradshaw v R[5] and, in particular, at paragraph 46FF, where the Court (consisting of Warren CJ, Kyrou and Redlich JJA) stated:
[5][2017] VSCA 273
“The learned judge recognised that Hogarth provided guidance as to the principles and sentencing standards that should apply to aggravated burglaries of the objective gravity with which Hogarth was concerned. As we have said, in relation to ground 1, his Honour was not in error in viewing the appellant’s conduct as falling within that category. The learned judge rightly viewed the sentencing standard for aggravated burglary, as uplifted following Hogarth, as relevant to the appellant’s offending. But his Honour did not approach his task on the basis that the sentencing range that the Court stated would have been appropriate in the case of Hogarth applied in the present case.”
Later, at paragraphs 49 to 52, the court went on to state:
“Parsimony requires sentencing judges to give proper consideration to non-custodial options. As this Court stated in Boulton, a CCO provides a flexible mechanism for imposing a sentence that is both punitive and rehabilitative, which can be fashioned to address the particular circumstances of the offender and the causes of the offending and to minimise the risk of re-offending by promoting the offender’s rehabilitation. As the order of seriousness of offending conduct increases, so the likelihood that such a disposition will be appropriate diminishes, but it may remain an option that is open, even in cases of very serious offending. The error which his Honour made, with respect, was to view the gravity of the offending to be of such an order that the sentencing range could only include an order that involved confinement of the applicant.
There were factors present that could have led the judge to conclude that the purposes of sentencing could be met without an order of confinement. It is rare to encounter an offender with such strong prospects for rehabilitation. The judge, who recognised this, characterised them in his sentencing reasons as ‘excellent’. Further, as a youthful offender, promotion of rehabilitation became a primary purpose of sentencing. It follows that in cases where rehabilitation is of paramount importance consideration of a CCO will take on greater significance.
It is evident, however, that his Honour treated offending of this gravity as precluding the possibility that a CCO could be imposed for this category of the offence of aggravated burglary. His Honour also dismissed the possibility that the principles discussed in Boulton, that a CCO could be appropriately punitive while achieving the broader purposes of sentencing, could extend to the appellant’s circumstances.
We thus accepted the submissions of both parties, that his Honour misconceived the objective gravity of the offence as precluding a sentencing disposition that did not involve confinement and as excluding the reach of Boulton. That is not to say that it would not have been open to the judge to have considered that confinement was necessary and that youth justice detention was the appropriate disposition, having regard to the objective gravity of the offence and matters personal to the appellant. … .” (Footnotes omitted and emphasis added.)
29 What must be borne in mind is how frightening it must have been for the complainant, who was asleep in the room when you entered through the window and said hello to him and thereafter commenced to damage the complainant’s television. It is unclear why this event even occurred, however, it would appear that you and the complainant had had some type of altercation some days earlier. What is clear enough is that when you entered the room in the early hours of Boxing Day you saw fit to smash the television. I accept that you were probably drunk and probably had little memory of the circumstances surrounding the offending. Of course, while your drunkenness may well explain what occurred, this is, in no way, an excuse for your offending.
30 I also accept that you did not go armed, or in company with any other person, and clearly you did not try to assault the complainant, but rather damaged the television.
31 Furthermore, I accept the submission that the offending probably had very little planning and was on the spur of the moment in the early hours of Boxing Day 2016. You made no attempt to disguise yourself and indeed spoke to the complainant, who immediately recognised your voice, having known you seemingly for about 10 years.
32 In mitigation, I do accept that you have made an early plea, and that indeed you have made some strides to overcome your alcohol problem.
33 I am informed that you were “dry” when on remand for these offences and for other offences. Furthermore, and importantly, you agreed to be bailed on the condition that you enter into the course conducted by Odyssey House, which you did in November 2017 and remained there until February 2018. You have informed your counsel that you have remained substance-free since your exit from Odyssey House in February 2018.
34 Prior convictions to your offending do not involve violence. I also note that the report from Ms Valacos (the Community Corrections officer) reports that you had been the subject of two previous community corrections orders in 2016, both of which were breached by non-compliance and further offences over the period, as I have already indicated, which caused you to be sentenced to a period of six months’ imprisonment from 5 March 2017 to 4 September 2017.
35 I also accept that you have work experience, and at the time of the subject offending were working casually as a labourer and a jockey (presumably truck jockey) delivering produce. You have indicated that you would like to return to work as soon as possible. Furthermore, you are now living with your stepfather, John Conyn, and a further half-brother who was born from the relationship between your mother and John Conyn. I was informed that you could continue to live with him after any period of imprisonment.
36 Generally, I do accept that you have made and are making attempts to overcome your substance abuse problem; but, bearing in mind your breaches of previous community correction orders and indeed the assessment of Community Corrections that you are at a “high risk of reoffending”, I consider that it is early days to come to a firm view about your prospects of rehabilitation, and put them no higher than “guarded”.
37 I do consider that the objective seriousness of such offending is towards the lower end of such offending, given the lack of you being armed, any attack on the complainant, the duration of the offending and indeed the seeming lack of any planning about such offending.
38 I consider that the major factors in coming to an appropriate sentence are generally to deter people from being involved in aggravated burglaries, and in particular to denounce this type of offending. Furthermore, to a lesser extent, specific deterrence is also important, to make sure that you will not commit this offence again.
39 The criminal damage, although no doubt frightening when it occurred, was limited to a television set and indeed I am of the view that this offending is far from the worse of this type of activity.
40 I have come to the view that an appropriate sentencing disposition is to consist of a period of imprisonment, followed by a community correction order. Such a sentence, although satisfying general deterrence, denunciation and specific deterrence, also has the advantage that it can be structured to assist you on release from prison in overcoming your substance abuse problem and general offending.
41 Please be upstanding.
(a) In relation to Charge 1, you are convicted and sentenced to eight months’ imprisonment. This is the base sentence.
(b) In relation to Charge 2, you are convicted and sentenced to two months’ imprisonment: one month of such imprisonment is to be served cumulatively with the term of imprisonment ordered on Charge 1.
(c) The total effective sentence is nine months imprisonment.
(d) I further declare that the period that you have been in custody in respect of these offences, namely 72 days, be reckoned as a period of imprisonment already served under this sentence, which is to be deducted administratively.
42 Furthermore, on completion of your period of imprisonment, you are sentenced to a community correction order for a period of two years. You must attend the Wangaratta CCS within two clear working days of being released from prison. In addition to the mandatory terms, there will be the following conditions:
(a) Pursuant to s.48D(3)(a) of the Sentencing Act 1991 you are to undergo assessment and treatment (including testing) for drug abuse or dependency;
(b) Pursuant to s.48D(3)(b) of the Sentencing Act 1991 you are to undergo assessment and treatment (including testing) for alcohol abuse or dependency;
(c) Pursuant to s.48D(3)(f) of the Sentencing Act 1991 you are to attend any program that addresses factors related to your offending behaviour;
(d) Pursuant to s.48D(3)(e) of the Sentencing Act 1991 you are to undergo assessment and treatment (including testing) for any mental health conditions;
(e) Pursuant to s.48E of the Sentencing Act 1991 you are to be supervised, monitored, and managed, as directed by the Secretary to the Department of Justice and Regulation, for the duration of the order;
(f) I will also make an order for a forensic sample and a disposal order, both of which I was informed by your counsel is not opposed.
(g) Further, in relation to s.6AAA of the Sentencing Act 1991, I declare that, save for your pleas of guilty to these offences, I would have ordered a period of imprisonment of 18 months.
Mr Cairney, as you hopefully understand, no doubt your counsel will explain it to you further, but I've ordered you to undergo some further prison time. The offence which you committed of aggravated burglary, although not the most serious type I've ever come across, is something the community will just not tolerate. I hope, from your point of view, that you do continue with the attitude made to get over your problems and indeed, being in prison, which is less the 72 days you've already had, maintain that position that you do the courses, keep off alcohol and drugs and then when you come out, you'll undergo the courses which will be for your benefit.
You must bear that in mind that the community correction order is for two years and during that time, you will be required to undergo courses and testing for alcohol and drugs and the like. That is in part for your benefit. That is to get you over the problems that you have had for many years, because if you don't get over those problems, you'll keep on coming back to court and things will be getting worse and worse and worse. So now is the time. You're still a young man. Now is the time to sort yourself out as you have been doing. I don't want to belittle that at all, but you have to keep on going with that. You must keep on being very disciplined about that, because you get over the drugs and alcohol problems, life's in front of you, it really is. I think your counsel talked about earlier because of the substance abuse problems, your life is spiralling out of control. Well, you don't want that to occur again and this is the way to sort it out. So, I wish you the best for that endeavour. Yes, counsel wish to raise anything?
MS BURNETT: Your Honour, there's just one matter. In respect to the pre-sentence detention, it was from 4 September 2017. The previous term of imprisonment expired on 3 September 2017.
HIS HONOUR: Well, how many days is it?
MS BURNETT: Seventy-two days, Your Honour.
HIS HONOUR: But I said what?
MS BURNETT: You said that the sentence expired on 4 September. In fact, it expired on 3 September - - -
HIS HONOUR: I see.
MS BURNETT: - - - and pre-sentence detention should be taken from 4 September 2017.
HIS HONOUR: No doubt the 72 days is right?
MS BURNETT: Is right, Your Honour, that's - - -
HIS HONOUR: Yes, anything else?
MS BURNETT: No, thank you, Your Honour.
HIS HONOUR: Anything to raise?
MS CHAYA: No, Your Honour.
HIS HONOUR: Yes. Mr Cairney, you have to sign for these orders. I'll allow your counsel to approach the dock while that's been done - - -
MS CHAYA: Thank you.
HIS HONOUR: - - - and just explain anything that has to be explained to your client. Yes, very well, take the prisoner. Thank you. Yes, we'll adjourn sine die.
- - -
0
7
0