Director of Public Prosecutions v Campbell
[2023] VSC 691
•24 November 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0266
| DIRECTOR OF PUBLIC PROSECUTIONS | Crown |
| v | |
| BYRON LISTER JAMES CAMPBELL | Accused |
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JUDGE: | Jane Dixon J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 5 June, 3 August and 17 November 2023 |
DATE OF SENTENCE: | 24 November 2023 |
CASE MAY BE CITED AS: | DPP v Campbell |
MEDIUM NEUTRAL CITATION: | [2023] VSC 691 |
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CRIMINAL LAW – Sentence – Conduct endangering life – Male victim died following neck compression applied in process of pulling victim away from female during fight between victim and female – Offender made initial attempts at resuscitation and requested call to triple zero – Offender later attacked by associates of victim – Plea of guilty – Worboyes factors – Delay – Bugmy factors – Some Verdins considerations – 50-year-old offender suffers from epilepsy and poor mental and physical health – 249 days’ imprisonment and CCO for 18 months – Crimes Act 1958 (Vic) s 22 – Sentencing Act 1991 (Vic) ss 5, 6AAA, 8A, 18(1), 36, 45(1), 48A, 48D, 48E, 48K, 48L, 72.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms C Parkes | Office of Public Prosecutions |
| For the Accused | Mr A Chernok | Melinda Walker |
HER HONOUR:
Introduction
Byron Campbell, you have pleaded guilty to one charge that on 15 December 2019 without lawful excuse you recklessly engaged in conduct that placed Mark Joseph Cooper in danger of death, namely by applying compression to his neck on two occasions rendering him unconscious. The charge is brought pursuant to s 22 of the Crimes Act 1958 (Vic) and the maximum sentence for that offence is 10 years’ imprisonment.
Documents tendered by the Crown
At the plea hearing the Crown tendered:
(a) A summary of prosecution opening for plea;[1]
[1]Dated 10 February 2023 (Exhibit P1) (‘SPO’).
(b) Outline of prosecution submissions on sentence;[2]
[2]Dated 30 May 2023 (Exhibit P2).
(c) The victim impact statement of Vickie (Mark’s mother);[3]
[3]Dated 24 May 2023 (Exhibit P3).
(d) Transcript of earlier sentencing remarks of Judge Lawson;[4]
(e) Earlier sentencing remarks of Judge Smallwood;[5] and
(f) Further outline of prosecution sentencing submissions.[6]
[4]Dated 15 October 2003 (Exhibit P4) (‘Judge Lawson Sentencing Remarks’).
[5]Dated 18 March 2004 (Exhibit P5) (‘Judge Smallwood Sentencing Remarks’).
[6]Dated 8 November 2023 (Exhibit P6).
Defence plea documents
A number of reports were obtained in relation to you, in the lead-up to my sentencing of you, including:
(a) Two Court Integrated Services Program (‘CISP’) reports authored by Fiona Devlin, being an Intake Report dated 11 March 2022 and a Final Progress Report dated 17 May 2022;[7]
[7]Exhibits D3 and D4.
(b) Two letters from Dr Andrew Haines of the Ashburton Medical Clinic dated 1 May 2018 and 25 July 2021;[8]
(c) Neuropsychological report of Dr Loretta Evans dated 27 April 2023;[9] and
(d) Forensic psychological report of Carla Ferrari dated 12 October 2023.[10]
[8]Exhibits D5 and D6.
[9]Exhibit D2 (‘Evans Neuropsychological Report’).
[10]Exhibit D9 (‘Ferrari Report’).
Further documents tendered on your behalf included:
(a) Urine toxicology screening results;[11]
[11]Dated 16 July 2021 (Exhibit D7).
(b) A bundle of course completion certificates from Kangan TAFE;[12]
(c) Outline of Defence submissions for plea;[13] and
(d) Supplementary outline of Defence submissions on plea.[14]
[12]Exhibit D8.
[13]Dated 21 May 2023 (Exhibit D1).
[14]Dated 31 October 2023 (Exhibit D10).
Additionally, a pre-sentence report was obtained from Ringwood Community Correctional Services regarding your suitability for a community correction order (‘CCO’):
(a) Department of Justice and Community Safety, Extended Pre-Sentence Assessment – Outcome Report dated 10 July 2023.
Background to the offence
You were 46 years of age at the time of the offence before the Court.[15] Mark Cooper, whom I will refer to in these sentencing reasons as Mark, was aged 33.[16] Mark had a long history of mental health issues as disclosed in the records produced by Eastern Health. In 2012 he attempted suicide by hanging and suffered a hypoxic brain injury, which impacted his cognitive functioning. He suffered from impaired mental health,[17] and was on several prescribed medications at the time of his death.[18] Mark also had problems with substance abuse.[19]
[15]The accused’s date of birth is 17 February 1973.
[16]Mark’s date of birth was 21 January 1986.
[17]Including schizophrenia, anxiety and depression: SPO (n 1) 2 [4].
[18] Including Diazepam, Olanzapine, Prozac, Seroquel and Thiamine Hydrochloride: SPO (n 1) 2 [4].
[19]Mark had a long history of drug abuse through his teen years and into adulthood, as well as issues with excessive alcohol consumption and abuse of prescribed medication: SPO (n 1) 2.
In 2017, Mark was receiving weekly support from a community mental health clinic.[20] One of his support workers thought that he was reducing his alcohol intake and ‘doing really well’ in the six months prior to his death.
[20] Hawthorn Community Mental Health Clinic.
Mark was in an on-and-off again relationship with Kim.[21]
[21] I will not use Kim’s full name (or that of any other unrelated third party) in these reasons for sentence.
Mark and Kim had known one another since high school, for about 30 years, but had been intimate partners since 2018. Kim was a tenant in a DHHS apartment building in Ashburton, but in the latter months of 2019 was mainly living with Mark in his apartment.
The relationship between Mark and Kim was volatile, including verbal and physical violence between the two. They would frequently break up and then get back together. One of Mark’s support workers observed the pair arguing in mid-September 2019 and needed to de-escalate the incident by taking Mark outside the property due to concerns about their behaviour.
After that incident, Kim had asked you to come to her home and stay with her as protection. However, by 26 September 2019 Mark and Kim had reconciled, and were back living together in Mark’s home. This pattern of the pair separating and then reconciling continued through October and November 2019. On 28 November 2019, they had separated once more, but by 5 December 2019 they had reconciled again. In the weeks leading up to the incident in question, neighbours had noticed that Kim was also spending time in your company.
Circumstances of the offence
In the few days preceding the incident in question, Mark and Kim were sleep-deprived and suffering the effects of methamphetamine use. On 15 December 2019, you were present at Mark’s apartment visiting the pair. Sometime during the afternoon, Kim observed that Mark appeared to be drowsy, and accused him of stealing her medication. She had also found messages on Mark’s phone from his ex-girlfriend and suspected he was cheating on her. A verbal argument erupted between the pair and Mark demanded that Kim leave. The argument between the two became physical and Mark began throwing things at Kim, including a drawer from a side table. The pair began to wrestle one another.
You told them to stop, to no avail. Eventually, in order to try and break up the fight, you intervened, putting your right arm around Mark’s neck, placing him in a headlock and pulling him backwards by the neck. The effect of neck compression caused Mark to briefly lose consciousness. Mark recovered and stumbled backwards before he again approached Kim to continue the physical altercation with her. You performed the same manoeuvre as before, pulling Mark backwards by the neck a second time and applying compression to his neck, which again led him to lose consciousness. Mark stumbled backwards and fell face down onto the floor.
You placed Mark into the recovery position, but noticed that his lips were starting to turn blue. You told Kim to call an ambulance. According to what you told police, you also tried to do chest compressions to revive Mark.
Kim’s first call to 000 was terminated, but she got through when she called again. Meanwhile, Kim told you to leave. You collected some of her belongings and left prior to the arrival of police and paramedics.[22] When Kim was on the phone to the 000 operator, she said that Mark had taken her medication and that he had a chain around his neck that was tight and he was ‘hooked up and all blue’. The operator guided her through CPR instructions which she complied with.
[22]CCTV cameras from outside the building captured your departure.
At 5.44pm, a paramedic arrived on the scene but found the deceased lying on the floor, unresponsive and without a pulse. He unsuccessfully attempted CPR. Further emergency service workers who attended were unable to revive Mark and he died at the scene at 6.22pm.
When questioned at the scene by attending police, Kim gave a partly false account about what had happened and about who was present when Mark lost consciousness. Police observed her to be erratic and drug-affected.[23] She was found unfit for interview by police when seen in the early hours of the next morning. Notwithstanding her compromised condition, at 8.12pm Kim had made a written statement for police in which she gave another incomplete and partly false account. She gave some further oral information claiming she and Mark were fighting and that she had him in a headlock.
[23]Kim received scratches and bruising when wrestling with Mark: SPO (n 1) 5 [29].
Returning to your actions: after leaving Mark’s apartment, you went to a neighbouring apartment occupied by Kane. You told him some brief details about what had happened to Mark, including that you had put Mark in a chokehold when intervening between Mark and Kim. Kane left and you went to see another neighbour whom I shall refer to as Sharon. You mentioned to her that you had needed to choke Mark a couple of times to protect Kim. Sharon shared that information with other residents of the apartment building. You stayed at Sharon’s house for a number of hours and listened to what was happening outside. Part of your reason for avoiding police was said to be because of an outstanding arrest warrant.
Between 9.00pm and 10.00pm two unidentified men attended Sharon’s home and severely assaulted you, including punching you to the face, after having heard about what happened to Mark. As a result of that assault you were bleeding from the mouth and quite distressed. You fled the premises through a window and went to Alamein Railway Station, arriving there at 10.58pm. You approached two protective services officers (‘PSOs’) and told them that you were being chased and had been assaulted.
You were arrested on an unrelated matter and put into a holding cell. You were subsequently examined by paramedics at 12.06am, early on 16 December 2019. Later, when you were in the custody of the Homicide Squad, you gave an account of the events of that night.
Although Kim was found unfit for interview in the early hours of 16 December, a forensic doctor examined her a bit later that day, and observed bruising and abrasions to her arms consistent with the assault upon her by Mark. At 6.38pm that day Kim was interviewed, and gave varying versions of events. She ultimately admitted that there had been a physical altercation between herself and Mark, and that you had intervened by placing Mark in a headlock and pulling him off her twice to stop Mark assaulting her.
Forensic pathologist Dr Victoria Francis performed a post-mortem examination of Mark’s body and found facial and periorbital petechiae, as well as bruising along multiple layers of the anterior neck muscles, haemorrhage surrounding a fracture of the left greater thyroid horn cartilage and a fracture of the left hyoid bone. Taken together, those findings were in keeping with neck compression.[24] Toxicological analysis showed the presence of amphetamines, benzodiazepines, olanzapine, quetiapine, pregabalin and fluoxetine (along with its metabolite norfluoxetine). There was also evidence of cannabis consumption.
[24]Dr Francis made the following observation in her autopsy report (refer SPO (n 1) 14 [76]):
The mechanism of death in cases due to mechanical compression of the neck may be due to obstruction of the airway, obstruction of the major blood vessels (arteries and veins) supplying and draining blood from the head and also ‘carotid body’ stimulation which may cause significant changes/abnormalities in blood pressure and the heart rate and rhythm, or as a result of a combination of one or more of these mechanisms.
The pathologist found that the cause of death was neck compression in the setting of the combined substances referred to above.[25]
[25]The pathologist, Dr Francis, also said that ingestion of the combination of substances found in Mark’s body may be sufficient to cause death in some individuals, depending on the individual’s tolerance to the substances as well as other factors: SPO (n 1) 15 [76].
Arrest and interview
During your formal police interview, you gave an account that Mark was ‘off his face’ and had consumed Kim’s medication. You referred to the altercation between Mark and Kim leading to Mark assaulting Kim near the front door of the unit. You gave an account of your intervention broadly consistent with what has been described earlier.[26] You said that, after your second intervention, you placed Mark in the recovery position so that you and Kim could perform CPR. You said an ambulance was called, and that Kim continued to perform CPR. You said you left the premises and were assaulted in another apartment in the same building. You then gave an account of what happened in the lead-up to your arrest. The account you provided to police has not been challenged by the Crown.
[26]You said you grabbed Mark over the shoulder and around the neck with your right arm and pulled him backwards away from Kim. Mark then fell backwards half on the floor, got up and began physically assaulting Kim again. You then grabbed Mark over the shoulder and around the neck a second time to pull him backwards, and that on this occasion Mark fell backwards and fell face down on the floor: SPO (n 1) 16–7 [86].
Mr Chernok submitted that it was a matter weighing in your favour that – after the incident, and before you left – you attempted to perform chest compressions and then directed Kim to call an ambulance. I accept that submission. Mr Chernok also submitted that you left the premises because there was an outstanding warrant for your arrest. I consider that that was probably only part of the reason you left after the call to 000.
Mr Chernok also referred to the aforementioned incident in which you were set upon by associates of Mark prior to your arrest and had your front teeth knocked out and received other injuries.[27] He described it as a form of extra-curial punishment. He noted that, soon after your arrest, you cooperatively gave an account of the night’s events to the PSOs at the railway station, and that you subsequently gave a full account to the Homicide Squad detectives. He informed the Court that you have expressed shame and distress about your actions and about what happened to Mark.
[27]As revealed by body-worn camera footage and details in the attendance register from 16 December 2019: refer, eg, SPO (n 1) 9 [54].
Nature and gravity of the offending
Mr Chernok submitted that the objective gravity of your conduct is lessened by the fact that your intervention in the fight between Mark and Kim was aimed at protecting Kim from Mark and stopping the violence. I accept that your concern to protect Kim was genuine and mitigates the objective gravity of your actions, bearing in mind the lack of opportunity for calm reflection in the context of the unfolding events. I note the absence of some features that are found to exist in other cases of reckless endangerment, such as the use of a weapon or the driving of a motor vehicle in a reckless manner.
Mr Chernok also submitted that you cannot be sentenced as if Mark’s death was an element of the offence. Whilst Mark’s death resulted from the danger your conduct placed him in, this is only relevant to the assessment of the level of risk created. I accept that Mark’s death is only relevant to an appreciation of the seriousness of the danger to which you exposed him.[28] It demonstrates that the risk created by your actions was not artificial or hypothetical.[29] The two applications of neck compression were inherently dangerous acts, even if Mark’s loss of consciousness and subsequent death were partly the result of the cocktail of drugs in his system at the time.
[28]Judicial College of Victoria, Victorian Sentencing Manual (4th ed, 2023) 410 [26.2.3].
[29]Ibid citing DPP (Vic) v Majok [2017] VSCA 135, [44] (Priest, Kyrou and Kaye JJA) (‘Majok’) and R v Natale [2019] VSC 30, [22]–[23] (Taylor J).
Mr Chernok argued that an objective factor in your favour was that you tried to perform chest compressions when Mark began to turn blue, and that you directed Kim to call an ambulance and provide CPR. Whilst I accept this tells in your favour, that finding is tempered by the fact that you then left before the paramedics and police arrived.
On the other hand, you cooperated with police, and made admissions to the actions you took. As I have already noted, the Crown do not dispute the account you gave in your record of interview.
Procedural history
You were not charged over this incident until 6 April 2021, some sixteen months after the incident. You unsuccessfully applied for bail in September 2021. You were committed to this Court and later made a further application for bail, which was ultimately granted by me on 15 March 2022.
Kim was cross-examined during preliminary hearings in May and October 2022, and a plea offer was made on your behalf on 19 December 2022.[30] The matter resolved with your plea offer being accepted on 20 January 2023, and you were arraigned on 24 January 2023.
[30]Following a directions hearing on 12 December 2022.
Victim Impact Statement
I have received a victim impact statement in this matter from Mark’s mother, Vickie, and I have taken this into account in sentencing you.[31] Vickie indicates that when she was told of Mark’s death she initially felt numb, like she was dead inside. She said that the timing of learning of Mark’s death in the lead-up to Christmas was very distressing, and that every Christmas will be marked with heartache for her and her family. She has found the legal process very difficult and wishes to remember Mark as he lived, not as he died.
[31]However, as discussed by Croucher J in R v Majok [2017] VSC 72, when dealing with this offence in circumstances where a charge of reckless endangerment was reduced from one of manslaughter: you are not to be sentenced for an offence involving causation of Mark’s death. I note that the judgment of Croucher J was unsuccessfully appealed in Majok (n 29).
Personal history and past offending
I was able to glean details of your personal history from the plea materials tendered on your behalf, including the sentencing remarks of Judge Lawson in 2003.[32] The report of forensic psychologist Carla Ferrari was particularly enlightening. I also had some recollection of hearing from your mother at the bail application in the current proceeding.[33] Ms Ferrari described your upbringing as dysfunctional and erratic, with exposure to violence and alcoholism and indications of parental neglect and emotional invalidation. She said all of this would have affected your development and personality formation and predisposed you to mental health difficulties.
[32]Including from the submissions of Mr Chernok as well. The sentencing remarks of Judge Lawson on 15 October 2003 related to an earlier time when you were sentenced in the County Court.
[33]Application for Bail by BLC [2022] VSC 128.
It seems that you grew up in the Camberwell area, and you have one sister who is two years older than you and does not have any criminal history. Your parents split up when you were young, and you were mainly brought up by your maternal grandmother. Your father was a chef by occupation.
Despite your mother and grandmother inheriting enough money to buy a large house in Camberwell, your upbringing was marred by your father’s violent alcoholism and his erratic presence in your life. You have said that your mother lacked maternal instinct and it seems that you felt rejected by her. Your parents reportedly sent you and your sister to live with your maternal grandmother from a young age. You have described her as a person who hated men and claim that she was often violent towards you and your sister, stating she ‘completely lacked compassion’. You were subjected to physical, emotional and verbal abuse from your grandmother whilst residing with her from prep to Year 8. Nevertheless, as the matriarch in the family and carer for you and your sister, your grandmother was a central figure in your life.
Mr Chernok submitted that many of your difficulties in life appear to stem from conflict with your father. He inflicted regular beatings on you, and on one occasion turned on your maternal grandmother and assaulted her violently, causing you to intervene. At that point, you began to realise the inappropriateness of your father’s behaviour.
Both your father and grandmother are now deceased.
You lacked positive attachment to both of your parents during your childhood, and you felt that you and your sister were often left to fend for yourselves. At the age of 10, you suffered an overdose on benzodiazepines, resulting in a medical coma at the Austin Hospital.[34]
[34]According to Ms Ferrari, medical staff believed this to be a suicide attempt, though you denied this to be the case: Ferrari Report (n 10) 4 [42].
You attended Canterbury Primary School until Year 3, and then Preshil for Year 5.[35] You then went to Trinity Grammar from Years 6 to 8, but were truant from school and were expelled after a physical altercation with your peers. You subsequently attended Windsor Technical School in Year 9, but continued to be truant at times. Ms Ferrari reports that you admit struggling with attention and behaviour at school, becoming easily bored. You briefly attended Mansfield High School for part of Year 10 because your father was then working in that region, but you left before completing the year and entered the workforce.
[35]You instructed your counsel that you went straight into Year 5 instead of Year 4, not as a result of any acceleration, but purely by circumstance: Transcript of Proceedings, The King v Byron Lister Campbell (Supreme Court of Victoria, S ECR 2021 0266, Jane Dixon J, 5 June 2023) 25 [20]–[24] (‘Plea Transcript’).
During adolescence you developed a lifelong interest in skateboarding as a distraction from negative emotions, and have continued that activity despite broken limbs and accidents over the years.
At the age of 17, your paternal uncle took an interest in you and found you work in steel welding and with a swimming pool construction company. You describe your uncle as something of a father figure, although he exposed you to associates who were motorcycle gang members leading you to view the world as a violent place. You attempted to obtain rigging qualifications but did not complete the final assessments.
You appeared before an adult court for the first time in 1990, and were placed on a good behaviour bond for possession and use of cannabis at the age of 17. In 1992 you commenced a building construction course at Holmesglen TAFE. You have been self-employed over the years and worked sporadically, depending on other factors in your life such as drug addiction and mental health difficulties.
You committed a number of driving offences between 1993 and 1996, when you were aged 20 to 23. In late 1995, you were convicted of unlawful assault, criminal damage and a bail offence leading to you being placed on a community-based order for 12 months. It was around this time that you commenced a relationship with Ms Barnes. Ms Barnes was a heroin user and you reported to Ms Ferrari that your heroin use commenced during your relationship with Ms Barnes.[36]
[36]Ferrari Report (n 10) 7 [67]; Plea Transcript (n 35) 27.
You left Victoria to get away from the drug scene, but upon learning that Ms Barnes was pregnant you returned to Melbourne and lived together with her in the Camberwell area from about 1995. Both of you engaged in heavy drug use throughout your relationship. Despite this, you and Ms Barnes had three children between 1996 and 2001.[37] Your oldest child from that relationship, Eddie Lee, is now 27 years of age and currently lives with you and your mother in Camberwell.
[37]Judge Lawson Sentencing Remarks (n 4) 13.
By May 1998, your offending was worsening, and you were sentenced to a short term of imprisonment for burglary and related offences.[38] Later that year, and in the following two-year period, you received further short terms of imprisonment for similar offending or for breaching court orders. In the interim periods between those short sentences, you undertook labouring work and landscape gardening and made some desultory attempts at drug rehabilitation.
[38]On 15 May 1998, you were sentenced for charges of burglary, go equipped to steal/cheat and unlawfully on premises/precinct, for which you received 6 months on each charge (concurrent) with 3 months of the sentence suspended for 18 months.
You were dealt with in 2001 and 2002 for some further dishonesty and theft offences when you were aged 28 and 29.[39] In conjunction with Ms Barnes, your heroin addiction and the nature of your offending escalated. You faced the County Court at the age of 30, on charges of armed robbery, attempted armed robbery and intentionally cause serious injury, arising from serious offending committed between 2001 and 2002 at two pharmacies and a dry cleaning store. Ms Barnes was the driver of a getaway car and was jointly charged with you. You were sentenced by Judge Lawson to a total effective sentence of six years and six months’ imprisonment with a non-parole period of four years and six months.
[39]On 17 January 2001, you were convicted for theft and obtain property by deception, and sentenced to a 12 month Community Based Order (‘CBO’). On 13 June 2001, you were convicted for failure to comply with that CBO, and sentenced to 1 month imprisonment (wholly suspended for 6 months). On 18 December 2002, you were convicted of burglary and theft, and fined.
On 18 March 2004, Judge Smallwood sentenced you for an outstanding charge of armed robbery and car theft that related to offending which pre-dated the offences dealt with by Judge Lawson. A further period of two years and six months’ imprisonment was imposed by Judge Smallwood, leading to a variation of your total effective sentence and non-parole period following orders for cumulation and concurrency.[40]
[40]The new sentence imposed by Judge Smallwood was 7 years 6 months, with a new non-parole period of 4 years 9 months (commencing 15 October 2003): Judge Smallwood Sentencing Remarks (n 5) 3.
You had already served nearly two years on remand by the time you were sentenced by Judge Lawson. Ms Barnes had entered Odyssey House, and due to the extent of her rehabilitation and caring responsibilities she received a wholly suspended sentence. Your relationship with Ms Barnes ended around this period, although it seems that nowadays you are on amicable terms with her.
Whilst you were in prison, serving the above-mentioned lengthy sentence, you were introduced by a fellow inmate over the phone to Claire. You married her whilst still in Beechworth Prison, and the relationship continued after you were released and resulted in four children. There were some further dishonesty offences between 2011 and 2017 but you did not receive any immediate custodial sentences for that offending.[41]
[41]In 2011, you were fined for possession of cannabis. A fine was then imposed for shop theft (less than $600) in 2012; and then in May 2015 a sentence of 4 months’ imprisonment was imposed (but wholly suspended) for 93 charges of obtaining property by deception. In June 2015, a sentence of 3 months’ imprisonment was also imposed (but wholly suspended) for the offence of handle/receive/retention stolen goods.
Your relationship with Claire was conflictual and you claim that her attitude to you fluctuated from one day to the next. Ultimately, family violence intervention orders (‘FVIOs’) were made in her favour, and in July 2017 you were sentenced to a six-month CCO for breach of those orders along with other offending.[42] In November 2017, you were fined for FVIO breaches and theft.[43] Mr Chernok reminded the Court of the context of some of the FVIO contraventions that were put before the Court during your bail application.[44]
[42]On 26 July 2017 you were sentenced for charges of burglary, two charges of contravene FVIO, and charges of breach suspended sentence order (imposed on 12 June 2015), for which the sentence imposed was a six-month CCO.
[43]On 10 November 2017, you were sentenced for charges of persist contravention of FVIO and theft, and fined $250 and $1,000 with conviction.
[44]It seemed that the attitude of the protected person was at times ambivalent.
By that time you had met Janet,[45] whom you refer to as the love of your life. Janet was not a drug user, but had a troubled background, and unfortunately took her own life in September 2019 – overdosing on prescription medication – leaving you distressed and heartbroken. This tragic event occurred only a few months before the offending that brings you before this Court.[46]
[45] Sometimes referred to as ‘J’.
[46]See, eg, Plea Transcript (n 35) 29.
Plea of guilty & remorse
It was submitted on your behalf that the Court should give substantial weight to your plea of guilty, which was relatively early given the way these proceedings unfolded, as discussed earlier. The guilty plea was submitted to be valuable and worthy of a substantial discount given the triable issues between the parties, with a possible defence of lawful justification that could have been put forward.[47]
[47]Based on defence of another.
It was further submitted that your plea indicates significant remorse, as reflected by your cooperation with the police after the incident and your candour during your dealings with them. Indeed, the Crown did not dispute that there was a degree of remorse. During the plea hearing, Mr Chernok publicly expressed on your behalf your regret for what happened to Mark.
Mr Chernok referred to the Worboyes[48] ‘discount’ due to the time your plea was entered and the ongoing impacts of the COVID-19 pandemic on the administration of justice at that time. During your time on remand in this matter you were subjected to the onerous COVID-19 restrictions within the prison system that were operating at that time.
[48]Worboyes v The Queen (2021) 96 MVR 344 (‘Worboyes’).
Reports of Carla Ferrari and Dr Loretta Evans
Forensic psychologist Ms Carla Ferrari conducted an assessment of you on 12 September 2023, including conducting a range of psychometric tests and diagnosing you in accordance with DSM-5-TR criteria. She found the presence of the clinical disorders of Major Depressive Disorder, recurrent moderate Adjustment Disorder with mixed anxiety and depressed mood and attention-deficit/hyperactivity disorder (‘ADHD’) (combined type). She did not find evidence of personality disorder, although she felt you display traits of avoidance. There was an existing Cannabis Use Disorder, and there were other substance use disorders that were in sustained remission.
Ms Ferrari noted your medical conditions of epilepsy and arterio-venous malformation (‘AVM’).
Ms Ferrari opined that your childhood experiences exposed you to poor modelling of coping mechanisms, and predisposed you to mental health issues including depression, anxiety, trauma and a sense of rejection from your parents, particularly your mother. She found your education and employment history to be highly suggestive of ADHD. She considered that – in addition to the attentional and executive functioning problems common to ADHD, which are consistent with your academic and employment profile – you have also exhibited impulsivity, mood instability and low self-control, which have been proposed as core symptoms of ADHD, and which would have predisposed you to criminal offending. Ms Ferrari reported that:
The presence of an undiagnosed and untreated ADHD is also a likely explanation for Mr Campbell’s longstanding history of offending behaviour since adolescence, with limited compliance with CCOs and other Orders or ability to appreciate the consequences of his conduct, with apparent reduced effectiveness of deterrents not due to antisocial tendencies, but as a result of his impulse control issues and potentially executive functioning problems.[49]
[49]Ferrari Report (n 10) 15 [146].
Ms Ferrari opined that ADHD could be considered in the context of the subject offending in the case before the Court due to the impacts of ADHD on emotional regulation, executive functioning and impulse control at the time of the conduct in question.[50] It was noted that the deficits caused by your ADHD would be amplified by stressors and any decompensation in your mental state, such as the depressive symptoms and unresolved grief you were likely experiencing in the lead-up to the offending.[51]
[50]Ibid 15 [145].
[51]Ibid 16 [152].
Ms Ferrari highlighted that ADHD sufferers are more likely to self-medicate with substances, as has occurred in your case.
She opined that you would be more likely to experience prison as being more onerous than for someone without your psychiatric profile. In particular, she noted that:
In individuals with ADHD, there is more potential for significant mood fluctuation and the volatile nature of the prison environment can further exacerbate his symptom profile and risk of decompensation.[52]
[52]Ibid 20 [165]:
Mr Campbell’s mental health condition, ADHD, places him at higher risk of inappropriate or disproportionate responses due to poor emotional regulation and impulsive behaviour, which can result in unintentional sanctions and higher vulnerability to experiencing issues with other offenders or with staff.
Ms Ferrari also considered that your medical conditions, namely your epilepsy and AVM, would make prison more onerous for you in terms of medical management. In particular, she noted the difficulty of maintaining low stress levels in a prison environment so as not to increase your risk of seizures. If you were to be involved in a physical altercation, any sustained injury to your head would place you at a significantly higher risk of seizure and further brain bleeds, which could be fatal given your higher susceptibility compared to someone without your medical conditions.[53]
[53]Ibid 20 [166].
Ms Ferrari also opined that prison and other sentencing dispositions have not been effective in the past, due to key criminogenic factors not being addressed in the prison system, and due to your mental health not being adequately treated in the past. She considered that you need multimodal treatment, including both pharmacological and psychological interventions, to allow you to develop adaptive coping skills and improve your functioning.
Ms Ferrari made a number of recommendations depending on the disposition imposed by the Court, noting the limitations on specialised therapeutic treatment in custody. She highlighted the importance of the formulation of a treatment plan with your GP, which ideally would include referral to a psychiatrist with expertise in treating ADHD, and referral for psychological counselling for alcohol and other drug treatment[54] and to deal with unresolved grief, depression and other issues. You admitted to Ms Ferrari that in the past you have found it hard to connect with counsellors, but you agreed that you need treatment following the death of your partner.[55]
[54] To encourage abstinence from illicit substances.
[55]Ferrari Report (n 10) 9 [93].
Ms Ferrari applied the HCR-20-Version 3 risk assessment tool and found that you pose a moderate to high risk of future violence but a low risk of imminent violence. You require a moderate to high level of supervision, intervention and resources to manage the risk.
A neuropsychological report[56] was obtained from Dr Evans, and summarised that your epilepsy began after you were diagnosed with a cerebral right temporal AVM in 2004. You were first referred to Dr Michael Dally in March 2000[57] for management of possible brain AVM in the context of drug addiction and a history of ‘multiple fractures as a result of various accidents’. You underwent stereotactic radiosurgery for right choroidal fissure AVM in June 2004 and required repeat stereotactic radiosurgery in April 2007.
[56]Prepared by Dr Loretta Evans of Community Health Partners.
[57]A Principal Specialist Radiation Oncologist at Alfred Health.
You were reviewed by Dr Mark King[58] in February and November 2013, and he made a number of changes to your anti-epileptic medication although noting your poor compliance. Dr King saw you again in 2014 and 2015 in the context of treating your epilepsy but also observing that you were self-medicating with heroin for chronic lower back pain, following spinal and leg injuries received in a motorcycle accident.[59]
[58]A Consultant Neurologist at the Epilepsy Clinic.
[59]Evans Neuropsychological Report (n 9) 5.
By January 2017 you were continuing to report epileptic seizures, and hyper-density was observed in the right occipital-temporal region that had remained unchanged since 2011 and was consistent with known right temporal lobe AVM. You were admitted for 24-hour observation and discharged with outpatient follow-up.
When Dr Evans performed her assessment of you she formed some unfavourable views about you, noting that you presented as increasingly erratic and labile over the course of the interview. She also described you as extremely verbose and difficult to interrupt or redirect. These observations need to be seen in the context of the later report of Ms Ferrari who diagnosed you with ADHD. Also, Mr Chernok submitted that your ability to remain focused, and give proper instructions, can be ’significantly marred’ when you have recently suffered a seizure, compared to when you have not recently had a seizure.[60] You told Dr Evans that you had last had a seizure a few days earlier.
[60]Plea Transcript (n 35) 22–3.
I accept that you are badly affected by epileptic seizures, and that you are somewhat in denial about the adverse impact they are having on you and about what you need to do to improve your prognosis. Indeed, your epilepsy was an important consideration in granting you bail in this matter.
Your GP, Dr Haines, said in his July 2021 report that the long-term prognosis for your epilepsy is partly dependent on your compliance with treatment. You have had seizures when you have missed medication, been sleep-deprived or under stress. Ongoing seizures, particularly of the grand mal type, are likely to lead to further brain damage and worsen your long-term outlook. Your current condition means you cannot drive, and it is difficult for you to work.[61]
[61]Letter of Dr Andrew Haines, Ashburton Medical Clinic dated 25 July 2021 (Exhibit D5).
Consideration of mental and physical health on disposition
Although the Crown doubted whether your dysfunctional background enlivened Bugmy[62] principles, I am prepared to make allowance for Bugmy factors based on your emotionally impoverished childhood and adolescence which have contributed to your psychological makeup. You have battled poor mental health and substance addiction for most of your life, due in part to a disrupted upbringing and emotional neglect. It is now apparent from Ms Ferrari’s report that your behaviour and lack of stability may also have also been partly a product of your undiagnosed ADHD.
[62]Bugmy v The Queen (2013) 249 CLR 571 (‘Bugmy’).
Mr Chernok was careful not to place full reliance on Verdins[63] to reduce moral culpability or mediate general and specific deterrence based on your ADHD and other psychological conditions.[64] He conceded that it was difficult to determine the true extent to which your condition contributed to the offence in this case.[65] However, he correctly submitted that there are other factors – such as your background of deprivation – that go towards moderating the punitive and deterrent aspects of sentencing, noting that it could not be said that your clinical disorders have no relevance in the instinctive synthesis. They help explain your background and criminal history, and your involvement in the offending in a broad sense. I accept that your medical and psychological profile is relevant to the disposition to be imposed in the current case, especially in light of the time you have already served on remand in the current proceeding. Moreover, it is significant that you were in custody for almost a year[66] during the height of the pandemic in conditions that would have been acutely onerous for you given your health.
[63]R v Verdins (2007) 16 VR 269.
[64]As diagnosed in the Ferrari Report (n 10).
[65]Supplementary outline of defence submissions on plea dated 31 October 2023 (Exhibit D10), 3 [6].
[66]Ultimately 92 days of that period became presentence detention for an outstanding matter.
During the process of the part-heard plea, I was invited to obtain a pre-sentence report under s 8A of the Sentencing Act1991 (Vic) (‘Sentencing Act’), with the necessarily lengthy delay that that entailed.[67] You were not found suitable for a CCO. I accept that you have a history of poor compliance with CCOs (whether imposed for fine defaults or otherwise) as described in that report; although on the other hand, you complied with your only episode of parole for 33 months between 2006 and 2009. I otherwise found the tendentious tone of the pre-sentence report rather unhelpful. Since the receipt of the pre-sentence report, a further assessment was obtained from Ms Ferrari, who is a forensic psychologist with many years’ experience in diagnostic assessment of offenders for criminal matters before the courts. It is possible that – if Ms Ferrari’s report had been obtained and made available to the authors of the pre-sentence report – a different approach may have been taken to the preparation of that report.
[67]The report was prepared on 10 July 2023, and filed in advance of a part-heard plea date in August 2023.
Current circumstances
Regarding your current situation, Mr Chernok submitted that your epilepsy continues to be a dominant factor in your physical and psychological wellbeing. You have relatively frequent seizures which would make you more vulnerable in custody, as was borne out by your last period in custody. It was submitted that although you do not always comply with medical management of your epilepsy to the extent that you should, it cannot be ignored that your long-term health prognosis is not good.
Mr Chernok pointed out that you have turned 50 this year, but that you have made it to that age in a quite vulnerable condition. Favourably to you, he submitted that your use of hard drugs has ceased. You hope, when you have served any sentence for the current offence, to recreate your life in a rural setting.
At the time that you were arrested for the current matter, there was an outstanding warrant[68] for burglary and theft. Mr Chernok told the Court that this appearance related to offending committed on 6 October 2019, when you reached through a security grate at a bottle shop in Wheelers Hill to steal alcohol valued at approximately $1,000.[69] You were dealt with for those charges on 29 September 2021 and sentenced to 92 days’ imprisonment, with that period being declared as time already served because you were in custody due to your remand for the current offending.
[68]Plea Transcript (n 35) 40.
[69]Informant Luscombe.
I note that at the time of the present offending, you were subject to a CCO referable to a sentence imposed on 27 September 2018.[70]
[70]Having been sentenced to an 18-month CCO with the order being in force until 25 March 2020
Delay
There has been significant delay in the current proceeding, in that you were charged on 6 April 2021, 16 months after the incident before the Court. You were ultimately released on bail on 15 March 2022, having served 249 days in custody as pre-sentence detention in this matter, and having had 92 days accounted for as pre-sentence detention on the unrelated matter I have already referred to. That 92-day period is relevant for totality reasons, insofar as it meant that you actually spent a continuous period of nearly 12 months behind bars. The delay up to the point of being charged – and the further delay in this case being finally determined – is largely not attributable to any fault of yours. The case finally resolved to a less serious charge than that which had originally been laid, and it is now nearly four years since the incident before the Court.
Delay is therefore an important matter in mitigation of sentence; both because the matter has been hanging over your head for such a long period, and because you have not reoffended in the intervening period.[71]
[71]See, eg, Tones v The Queen [2017] VSCA 118.
It was further submitted that, whilst on bail, you were largely compliant with CISP requirements, and you have not been charged with any further offences. You have been living with your mother, you son and your aunt at the address in Camberwell, and you have been keeping to yourself. Earlier this year, you instructed Mr Chernok that you were experiencing seizures approximately fortnightly or monthly whilst sometimes having a series of them. In August this year, Mr Chernok said that – on your best estimate – at that time the seizures were occurring weekly or fortnightly, and sometimes seemed to happen while sleeping.[72]
[72]Transcript of Proceedings, The King v Byron Lister Campbell (Supreme Court of Victoria, S ECR 2021 0266, Jane Dixon J, 3 August 2023) 51.
Prospects for rehabilitation
I accept that you are remorseful for your offence, as is evident from the admissions you made to police as to what took place, and the expression of regret put forward on your behalf during the plea hearing, along with the fact of your plea of guilty. Ms Ferrari described you as extremely remorseful for your actions.[73]
[73]Ferrari Report (n 10) 18.
You have been on bail since 15 March 2022, and you have not been charged with any offences since that time. I accept that this represents progress towards rehabilitation, and that you have tried to avoid harmful associations and the use of hard drugs. Notwithstanding the Crown’s submission that your prospects for rehabilitation should be seen as guarded, I consider that – with appropriate support and management of your physical and mental health, including your previously undiagnosed ADHD and major depressive disorder – your prospects for rehabilitation are reasonable. Your age and currently stable living circumstances are relevant to my views in this regard, along with the absence of criminal offending over the last four years.
Parties’ submissions as to disposition
Mr Chernok pointed out that there are no strongly comparative cases that the Court can look to in this case, noting that this type of offence is usually constituted by reckless use of firearms or reckless driving that leads to the endangerment of a person (although the case of Majok[74] was suggested as having some comparative value). Ms Parkes also conceded there were no clearly comparable cases,[75] noting that the charge before the Court is one that is usually dealt with in the lower courts.
[74](n 29).
[75]I note, however, that I have had regard to the following comparative materials: Sentencing Advisory Council, SACStat offence summary – Reckless conduct endangering life – Crimes Act 1958 (Vic) s 22, Magistrates’ Court, 1 July 2018 to 30 June 2021; Sentencing Advisory Council, SACStat offence summary – Reckless conduct endangering life – Crimes Act 1958 (Vic) s 22, Higher Courts, 1 July 2016 to 30 June 2021; Judicial College of Victoria, VSM Case Summaries – 05 – Other offences against a person (online at 23 November 2023).
Mr Chernok argued that the time served on remand for this matter caters to the objective gravity of the offending and the necessary punitive aspects of sentencing: just punishment, general and specific deterrence, and denunciation. The remaining question concerned how to give proper effect to your rehabilitation into the future. He initially suggested that a sentence which combined imprisonment equating to the period already served with a CCO would be an appropriate outcome. When the CCO pre-sentence report was unfavourable, he submitted that – if the Court were not minded to impose a CCO – an adjourned undertaking with conviction under s 72 of the Sentencing Act, along with treatment conditions and judicial monitoring, could meet the purposes of sentencing. This would be sufficient if the Court paid regard to the period spent in custody on remand. Concern was expressed by Mr Chernok that – if the Court imposed a CCO, despite the tenor of the CCO report – it would be setting you up for failure.[76]
[76]Reference was made to the tenor of the pre-sentence report which suggested, inter alia, that you had repeatedly been successful in using your medical and mental health issues to seek a more favourable outcome at sentencing.
Ms Parkes submitted to the contrary that an adjourned undertaking, even in conjunction with recognition of the time spent on remand, would fail to reflect the seriousness of the offending and the punitive, denunciatory and deterrent purposes of sentencing. Further, she referred to the risk assessment conducted by Ms Ferrari, and argued that conditions attached to an adjourned undertaking would not be stringent enough to satisfy Ms Ferrari’s recommendation for intensive support and treatment in order to effect change. She maintained her submission that imprisonment should form part of the sentence, but suggested that it could be combined with a CCO[77] despite the unfavourable CCO report. She submitted that the treatment conditions suggested by Ms Ferrari could be included as part of the CCO.
[77](Noting the period of pre-sentence detention).
Consideration
The sentencing exercise in your case presents a unique concatenation of facts and circumstances. The matters favourable to you must be balanced against the objective gravity of the offence, whilst also taking into consideration your antecedent history as it bears on your prospects for rehabilitation.
All of the purposes of sentencing set out in s 5(1) of the Sentencing Act are relevant – although I consider that community protection and rehabilitation will be best served by putting in place a regime that focuses on treatment and supervision. I otherwise consider that general and specific deterrence, punishment and denunciation can be regarded as moderated to some degree because of the factors referred to below,[78] leading me to view the time already served in prison as adequately catering to those requirements. In arriving at a just sentence. the instinctive synthesis involves consideration of all the matters referred to below.
[78]Including Bugmy (n 62) factors and, to a lesser extent, your mental health condition.
First, despite the fact that Mark lost his life in the aftermath of two episodes of the neck compression inflicted by you, the charge you have pleaded guilty to does not involve sentencing you for causing Mark’s death. The circumstances of your offence make this case of reckless endangerment less grave than many other examples of that offence. You were responding to Mark’s assault on Kim, and did not have the opportunity for calm reflection before reacting as you did. You also made some efforts to resuscitate Mark, and you took steps to ensure that an ambulance was called.
Secondly, I accept that your plea of guilty is especially valuable, given that you had reasonable prospects of defending the Crown case and thus can realistically be said to have foregone the chance of an acquittal. I also note the value for the justice system of the avoidance of a trial at a time when the Court was under significant strain due to COVID-19 backlogs.[79] I accept that you cooperated with police after the incident before the Court and gave a full account of what took place. I accept that your plea of guilty is accompanied by genuine remorse and regret over your conduct.
[79]See, eg, Worboyes (n 48).
Thirdly, I accept that the delay of almost four years since the incident is a lengthy period to have had the matter hanging over your head. Over that time, your rehabilitation has progressed, and you have not been charged for any further offences over that period. I accept your counsel’s submissions as to the relevance of delay in this case.[80] You participated in an episode of CISP upon being granted bail, and you have managed to live peaceably with family members whilst on bail despite your disturbed family background. You seem to have reached a state of reconciliation with your mother. You have tried to avoid hard drugs, and you have avoided anti-social associations during your time on bail. For the most part, the delay in this case being finalised has not been attributable to you, because there was a long delay in charging you, and you ultimately resolved the case on a lesser charge than that which you originally faced, once pre-trial hearings were concluded.
[80]Referring to R v Kane [1974] VR 759, 767 (Gowans, Nelson and Anderson JJ); R v Merrett, Piggot and Ferrari [2007] 14 VR 392, 400–1 [35]–[37] (Maxwell P, Chernov JA and Habersberger AJA agreeing); R v Schwabegger [1998] 4 VR 649, 659–60 (Vincent AJA).
Fourthly, I accept that you were beaten up on the night of the incident by associates of Mark, and that your front teeth were knocked out during that attack. That is an aspect of extra-curial punishment.
Fifthly, I accept that Bugmy considerations are relevant to you for the reasons expressed earlier. This is an important matter, because it enables the Court to view the whole of your criminal history through the lens of a person whose formative years were significantly disrupted and lacking parental attachment.
Sixthly, I accept that the recent diagnoses of you as suffering from ADHD and major depressive disorder are highly significant. Until the report of Ms Ferrari, you had not previously been diagnosed or treated for ADHD. The ADHD diagnosis is important to understanding your past criminal history and other aspects of your seemingly chaotic lifestyle over many years. I accept that Ms Ferrari’s report provides a basis for finding that your experience of incarceration on remand would have been more burdensome and risky for you because of your psychological conditions. This aspect is even more significant when considered in the context of your AVM and your epilepsy. Any future period of imprisonment would be more burdensome for the same reasons.
Seventhly, I consider that the requisite punitive, denunciatory and deterrent[81] aspects of sentencing in this case can be regarded as adequately reflected in the time you spent in custody on remand, taking into account the onerous nature of that confinement (given the COVID-19 restrictions for prisoners at that time) and your own physical and mental health conditions. Worboyes considerations are relevant in this regard.
[81]Meaning both specific and general deterrence.
Eighthly, I accept that currently your physical and mental health are significantly compromised. You have a potentially dangerous medical condition that means you cannot drive, and that makes it difficult for you to work. You remain distressed by the death of your partner Janet, and you have unmet treatment needs regarding your mental health. It is in your favour that whilst awaiting sentence in this matter, you have obtained a mental health care plan from your GP clinic, and you are beginning to take more concrete steps to deal with those aspects of your life.
I am also mindful of the principle of parsimony enshrined in s 5(3) of the Sentencing Act.
In all the circumstances before the Court, it does not appear desirable that I impose any additional period to be served in prison. Indeed, Ms Parkes did not urge that I do so. However, on considering the content of Ms Ferrari’s report closely – along with all the other material before the Court – I am not convinced that a s 72 undertaking would provide sufficient supervision of your rehabilitation of the kind recommended by Ms Ferrari. Instead, I have decided to impose a CCO with conviction with conditions requiring supervision, treatment and rehabilitation and judicial monitoring of you during the currency of the order. It is my intention that the conditions attached to the proposed CCO will address your specific needs, as well as the causes of offending, and promote the required changes in your life that are needed to reduce the risk of reoffending.
This of course depends on you consenting to the imposition of a CCO. I understand that your lawyers have explained to you the nature and effect of the conditions of this order, the length of this order, and the consequences of breaching any conditions of this order.
Do you consent to the order?
Sentence
Mr Campbell, please stand.
On the charge of conduct endangering life, you are convicted and sentenced to 249 days’ imprisonment in combination with a CCO for 18 months. Pursuant to s 18(1) of the Sentencing Act, I declare that you have already served the 249 days by way of pre-sentence detention under this sentence, and I order that this declaration be noted in the records of the Court.
The CCO commences today and will include conditions for your assessment, treatment and rehabilitation,[82] supervision,[83] and judicial monitoring.[84]
[82]Sentencing Act 1991 (Vic) s 48D.
[83]Ibid s 48E.
[84]Ibid s 48K.
In imposing the CCO and these conditions, I have taken into account the pre-sentence report and the principle of proportionality, the purposes for which a sentence may be imposed as set out in s 5 of the Sentencing Act, and the purpose of a CCO as set out in s 36.[85]
[85]Ibid s 48A
The mandatory conditions apply to the CCO as set out in s 45(1) of the Sentencing Act, and having regard to the matters set out in s 48D(2), I will attach conditions relevant to your treatment and rehabilitation, including for:
(a) Assessment and treatment (including testing) for drug abuse or dependency;[86]
(b) Mental health assessment and treatment including psychological or psychiatric treatment;[87] and
(c) Participation in a program that addresses factors relating to your offending behaviour.[88]
[86]Ibid ss 48D(3)(a), (b).
[87]Ibid s 48D(3)(e).
[88]Ibid s 48D(3)(f).
Having regard to the recommendations of Ms Ferrari and the pre-sentence report, I will include a supervision condition pursuant to s 48E of the Sentencing Act that you be supervised, monitored and managed as directed by the Secretary for a period of 12 months, running from the commencement date of this order.
Further, I consider it beneficial for the Court to review your progress and compliance with the CCO, so I will attach a judicial monitoring condition pursuant to s 48K, requiring that:
(a) You appear before this Court on 14 February 2024 at 4.15 pm (or such other date as may be fixed by the Court) for a review under s 48L of your compliance with the order, and further appear on any other dates that this Court appoints during the course of this order; and
(b) A report be provided by the Secretary in the course of each review under s 48L.
I should warn you that if you fail to reappear for Court in accordance with the terms of this judicial monitoring condition, a warrant may be issued for your arrest.
You will be required to report within two clear working days from today to Box Hill Community Correctional Services located at 703 Station St, Box Hill, VIC 3128.
Pursuant to s 6AAA of the Sentencing Act, I declare that, but for your plea of guilty, I would have imposed a sentence of 18 months’ imprisonment.
Disposal order
I will make the disposal order sought by the Crown.
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