Director of Public Prosecutions v Castner
[2015] VCC 1666
•19 November 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT BALLARAT
CRIMINAL JURISDICTIONCase No. CR-15-01603
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JAKE CASTNER |
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| JUDGE: | JUDGE MCINERNEY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 21 October and 12 November 2015 |
| DATE OF SENTENCE: | 19 November 2015 |
| CASE MAY BE CITED AS: | DPP v Castner |
| MEDIUM NEUTRAL CITATION: | [2015] VCC 1666 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Plea of guilty to charges of theft, armed robbery, obtain property by deception, burglary and others – young offender
Legislation Cited: Criminal Procedure Act 2009 (Vic), Sentencing Act 1991 (Vic)
Cases Cited:R v Ibbs [1987] 163 CLR 447, R v Hall [2010] VSCA 349, R v Hill [1996] 2 VR 496, R v Verdins [2007] 16 VR 269, R v Fotios & Kastanis (unreported, VSCA, No.25/26 of 1997), R v Bainbridge, Cullen & Ludowicki (1995) 74 A Crim R 265, Azzopardi & Orsv The Queen [2011] VSCA 372
Sentence:Convicted and sentenced to 3 years and 11 months imprisonment with a non-parole period of 2 years and 6 months imprisonment
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J. Lewis | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr J. Westmore (Plea) Mr S. Kenny (Sentence) | Mike Wardell Barrister & Solicitor |
HIS HONOUR:
1Mr Castner, you can remain seated. There is an amount of material I have got to go through necessarily, because of the plea put to me by Mr Westmore on your behalf, and that was tendered. I note that Disability Services representatives are here as well, which I appreciate again.
2Also the important point, Mr Castner, is that the remarks that I am about to make are recorded so that such is on the public record as the reasons for the sentenced pronounced. And of course, should it ever be required to be looked at by any another Court in due course, that can be set out. So I will go through those details, and when I pronounce the sentence on you, I will ask you to stand up.
3Mr Castner, you pleaded guilty on 21 October 2015 in this Court to the charges in Indictment No.F11269397. That Indictment contains 19 charges. Further, pursuant to s.145 of the Criminal Procedure Act 2009 (Vic), the Court was asked to take into account two summary charges, one being a charge of committing an offence, which effected a breach of bail, and one of resist police.
4Remarkably, all of these crimes occurred from 29 March 2015 to 11 April 2015. Further, it seems to be more so remarkable that they were committed by Mr Castner who is 19, having been born on 21 January 1996.
5Your counsel, Mr Westmore, represented you on both plea days, and Mr Castner is today represented by Mr Kenny. Mr Westmore correctly described the behaviour set out in this Indictment, including the summary matters, as a binge of criminality.
6Exhibit A is the prosecution summary, which was accepted by Mr Westmore as representing the facts upon which I am to sentence you, Mr Castner. Objectively each of these crimes satisfies the epitaph of "serious".
7Unfortunately, when you committed those crimes you were also on a Community Correction Order for a period of 12 months, which had been imposed by the Ballarat Magistrates' Court, that is in this building, on 24 February 2015, only weeks prior to this binge of criminality. You had been giving that Community Correction Order after having been on remand for a series of similar charges to which I am sentencing you, for apparently a period of 189 days, or nearly six months.
8That also was, as I understand, in adult prison. So effectively, you have had six months in; you get out after being sentenced with 16 similar matters. Within five weeks, you are committing this binge of criminality again. I noticed in the charges that were dealt with on 24 February 15 that one of them again involved another police chase.
9To say the least, your criminal history at the young age of 19 is certainly not good, and it is necessary to look at that background. Prior to getting that Community Correction Order that I spoke about, in April of 2014, you were sentenced to three months' detention in a Youth Training Centre for again similar charges: Thefts, possession of weapons, car thefts, drug problems, and a robbery charge.
10In May of 2014 again, theft and driving charges. One month Youth Training Centre. In August of 2013, you got one month for theft of cars, drugs, resist police and burglary. In January of 2013, theft, assault police, drugs. Eight months' Youth Training. December of 2013, a robbery charge. Two months' Youth Training. June of 2011, theft and robbery, six months' Youth Training. October of 2011, burglary, assault police, theft. Again, Youth Training, three months.
11In August 2011, after being appealed to the Magistrates' Court in this Court, 12 months' youth supervision for burglary, theft, criminal damage charges. July 2010, burglaries and theft with a youth residential order of eight months. February of 2010, assault police, criminal damage, burglary. Youth residential order of 14 days.
12Despite your young age, that recital produces a very disturbing pattern. Such offences have been committed primarily when you were a child, and subsequently when you became a young offender. It appears throughout that time, all attempts to rehabilitate you appear to have been to no avail.
13I stress that the recital of such history is not, Mr Castner, in order that you should be sentenced again for any of those crimes. That is not the reason. They are already done, and you do not come up for sentence of those again. But a recital of that pattern illustrates that when a person continues to offend, albeit that you are still only 19, there are unfortunately imposed limitations on the options that a Court has.
14Indeed, Mr Westmore did not dispute that given the objective seriousness of these offences which I am dealing with, there is no option for this Court but to impose a confinement order upon you. The sole issue before this Court was where you should serve that period of confinement.
15Apart from looking at your background, it is necessary to look at the offences themselves. One is required by High Court authority of R v Ibbs [1987] 163 CLR 447 [45] and R v Hall [2010] VSCA 349 [22] to [24] to objectively analyse all the charges, to demonstrate its level of seriousness on the scale of heinousness of crimes. In my view, having analysed all such matters, the following crimes can be classified as between serious and very serious on the scale of heinousness relevant to such crime, that is, charges 1, 2, 4, 6, 8, 9, 10, 11, 12, 15, 16, 17 and 18.
16Coming to them specifically. The first charge is theft of car from a residential address. That took place during the night on 27 March 2015. This car was valued at $15,000 and was burnt out - you are not charged for that, I stress - but fortunately the victim had insurance, that is one of the s.86 of the Sentencing Act orders that I am making.
17On 29 March 2015, two days later, you rob a person in a suburban street in this city. That robbery is effected by the use of a knife, and that person is also assaulted. It is hard to comprehend persons committing an offence of such seriousness when the results they obtain is $20 cash, the person's debit card, and his Myki card. It is to be remembered that armed robbery carries with it a maximum sentence of 25 years. Again, there was an order made, and has been made and signed by me under s.86 of the Sentencing Act to pay back to Mr Lowe the $50 that was lost to him when you ultimately used the debit card.
18Charge 3, which is not in the more serious category, that I have analysed, is a use of that debit card to get credit.
19We then come to 1 April 2015. On that day at about 2.50 am, you steal a Volkswagen from a person's premises while he was asleep. Thereafter you are involved in theft of gloves at a shop. In regard to this particular car, fortunately that was recovered undamaged.
20We then go to 8 April 2015. Again at 12.10 pm in the day you stole a car from a residence. Then again a not so serious charge, although it is still theft, you steal items from a store.
21Still on 8 April 2015, you go to the address of Michelle Reynolds in Gordon in the afternoon, and you burgle her home. Not only do you burgle, but once in you steal from her home. You steal what are irreplaceable items. Firstly her wedding and engagement ring. Secondly a hard drive of photographs relating to her family, which are irreplaceable. Suffice to say, none of these items have been recovered. The cost to Ms Reynolds, is estimated, at $30,000. None of those items have been received back. Fortunately she had insurance, however of course those losses, when one talks about having insurance, are losses borne by the whole community.
22Her victim impact statement, Exhibit B, is heart rendering indeed. The loss of these personal items and the feelings of unease, and the need to put in alarms in country premises, which they have never had to do before, has all been caused by your criminality.
23We then come to 9 April 2015, the burglary upon Mary Phipps' home in Napoleons. This apparently happens during the day. You were able to find $700 cash, which she has had inside a Bible next to her bed, of which for some months she has been saving. Again, a heart rendering victim impact statement. I stress, this is a person who is a cleaning lady, who works very hard for her money, and as she said she had saved for many, many months to be able to save $700, she was hoping to reach $1,000 so she could make a payment off the capital sum, which she owed on her car.
24Again, I have made an order in regard to that $700 under s.86 of the Sentencing Act. I should say that of course the reality is, none of these orders will ever be paid by you.
25Again, in the victim impact statement one reads of the results of the crime committed by you. She has been required now to keep all her windows shut. Again, a circumstance that never was required by her living in the country. Fortunately, she has got plenty of pluck and character, and as she says, she is getting on with her life.
26We then come to the offences committed somewhere between 9 April and 10 April 2015. Again, you steal a car from a person's residence, Charge 12, between four and 5 am. Fortunately, by the time the police issue a warrant and catch you at your home, you still have the car and that has not been torched thankfully. Also the items stolen subsequently in regard to charges 15 and 16 are found.
27There are charges 13 and 14, two thefts. Again, serious matters, but not of the serious order as I have identified. One from a supermarket in Creswick, and then again simply driving away with fuel from a general store.
28Charge 15 again is a burglary, and Charge 16 is theft, again committed upon a residential address. In this instance, you see fit to steal not only the football awards of the victim, but his war medals. You also steal a firearm. In total, all these goods are valued at some $1,500. The firearm is the firearm that you subsequently discharge and that is found in your car on the day that you are apprehended, fully loaded. Fortunately, because of good police work, that gentleman's medals and sporting memorabilia that he had accumulated over his life were recovered.
29You are, shortly after discharging a firearm in public, for which you are not charged, subsequently chased by the police. That is Charge 18. The police, correctly, it seems to me, do not pursue you because of the danger, as at the last report, you have travelled up to 120 kilometres, but when they stop the chase, you are travelling at 110 kilometres in a 60 zone, in a residential area.
30The final charge of course is what seems to be your pattern, theft from a garage where you simply walk out without paying, as though you feel you are entitled to such property.
31Given your prior history that I have recounted, the circumstances of the offending, and in particular the individual seriousness of the charges that I have highlighted, there is no doubt objectively that the acknowledgement by your counsel that such behaviour is worthy of incarceration cannot be disputed.
32The authorities of course relevant to sentencing, require a Court to consider the subjective factors relevant to you. And such factors are significant in your case. In this regard, Mr Westmore tendered firstly Exhibit 1, chronology and outline of submissions dated 2 October 2015; Exhibit 3, further submissions dated 12 November 2015; Exhibit 2, psychological report of Dr Cunningham, dated 15 October 2015; and Exhibit 4, the letter from Mr West who is in Court, in particular setting out Disability Services operations and the information as to DFAT services provided.
33Coming firstly to Exhibit 2, that is the report of Dr Cunningham, there is no doubt that you have suffered from a deprived background. Within your family, unfortunately, you have been subject to observations of abuse, beatings of your mother, and neglect.
34Both your mother and father have had difficulties with addiction to drugs. Fortunately it would seem that your mother has recovered somewhat in regard to that addiction, is very close to you now, is a person who is of great assistance to you, and has stayed with you by way of support. However, these early times have not been good insofar as the consequences for you. In particular, such led to your early exit from home at the age of 14, nearly 15.
35You have for some time been on a disability support pension. You really have no work history, albeit that your disabilities services providers are trying to assist you in this regard. You have also been subject to polysubstance drug abuse from the age of 14 to 15.
36Given such history, it was appropriate for Dr Cunningham to provide a report, and I go firstly to p.2 of this document. In regard to your mental state assessment, he says this: "He reported feelings of depression, anxiety, stress and anger". This was the date that he saw you in Port Phillip Prison, being 13 October 2015.
"He stated that all of his emotions led to anger. He's self-harmed in the past. He suffers panic attacks and lashes out violently when afraid. He reported significant paranoia. He believes that people are trying to stab him. He sourced weapons in the community due to his fear of being attacked. He has visual hallucinations in regard to his grandfather who committed suicide in 2008-2009. Mr Castner apparently discovered his grandfather. He continues to have reflections of those, and he reports anger when he feels abandoned.
37Insofar as your formal diagnosis, Dr Cunningham considered you met the DSM-V criteria for post-traumatic stress disorder. He states as follows on p.3:
"In meeting the criteria of post-traumatic stress disorder, Mr Castner was exposed to significant violence in his childhood home. He did not feel safe, was abused by his stepfather. He has distressing recollections from his childhood violence. He presents with negative alterations in cognitions and mood in the form of feelings of worthlessness and mistrust of others. He presents with marked arousal in the form of sleep disturbance; hypervigilance; irritability and outbursts of anger; reckless and self-destructive behaviour; and difficulty concentrating. His overall thinking and reasoning skills were in extremely low range. This places Mr Castner in the intellectually disabled range of intellectual functioning."
38Dr Cunningham then described your behaviour and the criminality, and said at the bottom of p.4, with which I totally agree: "In my opinion, Mr Castner's offence behaviour occurs in the context of his drug abuse."
39Dr Cunningham then spoke on p.5 of the context of your intellectual impairment; how you would struggle to have insight into your distortions of thinking and source methods for rehabilitation. He suggested that in the context your intellectual impairment, "Mr Castner would have impaired judgment with respect to his offence behaviour and their consequences.” I will come back to that, but that is a statement that I do not accept.
40Dr Cunningham then talks in the last paragraph of the issues and effects upon you if you continue to remain untreated, as to how your intellectual makeup and post-traumatic stress disorder would weigh heavily upon you. He said that you would benefit particularly from disability and mental health management, and you need engagement and ongoing mental health and disability case management to improve your prospects for rehabilitation.
41In addition to that material, I received at the last hearing the joint report on management of Disability Services. That document provided the Court with an explanation of DFAT's services in Victoria, and I note in particular the reference therein to the specialist support services that are provided at both Youth Justice and prisons.
42I do not know the current figure, but I think it is somewhere, if I remember the last assessment by Justice Callum, I think it is something like 60 per cent of the current prisoners in gaol have mental issues. It obviously is a situation where DFAT services are most important in the treatment of our prison population, and the specialist services provided are most important.
43These explanations, of course, are of great general assistance to the Court, but no order under s.82AA of the Sentencing Act was sought by Mr Westmore, and indeed in the last hearing, such was specifically disavowed, despite paragraph 11 of the submission in Exhibit 3.
44At the first day of the plea, I perused Exhibit 1, being Mr Westmore's submission, and as a result thereof I sought a report, which I am required to do when I am contemplating the placement of a young offender, as you are, in a Youth Training Centre. That report was required under s.32 of the Sentencing Act.
45I of course take into account all of the factors of mitigation set out by Mr Westmore which he spoke to, but in particular which he sets out in paragraph 13 of Exhibit 1. That is, his first submission. As he stressed, Mr Castner is classified under the Sentencing Act as a young offender.
46Unfortunately, given the report that was sought, it was determined by the authorities, that is Exhibit D in the report dated 10 November 2015, that you are a person in their opinion, who is unsuitable to be placed in a Youth Training Centre. In particular, at p.9 as to suitability, "the writer", that is Kristin Mende said:
"Spoke with Rick Madigan, operations manager at Malmsbury Youth Centre on Tuesday 3 November 2015. Previously Jake had been found unsuitable for a Youth Justice Centre sentence on two separate occasions. On 28 April 2014, Mr Castner was found unsuitable, but was sentenced to a Youth Justice sentence, and on 9 December 2014 was again found unsuitable and subsequently received a 12 month Community Corrections Order on 24 February 2015. Mr Castner breached this Community Corrections Order by reoffending on 7 March 2015, less than two weeks after being released from custody."
47Those matters are not matters that I am concerned with. They are matters that you are currently before the Magistrates' Court on.
"Mr Castner meets many of the indicators under the Sentencing Act 1991 s.32(1)(b) of being impressionable, immature, or likely to be subject to undesirable influences in the adult prison. However, given Jake's long history of poor compliance with Youth Justice and support services, and his pattern of chronic offending, Youth Justice believe under s.32(1)(a) of the Sentencing Act, his prospects of rehabilitation are extremely poor, and these outweigh his vulnerability."
48It is also necessary to read comments that were made in this report at p.5. This talks about your involvement prior to this time in the justice system itself.
"Mr Castner has extensive prior history and offending, and has been subject to two Community Based Justice Orders and six custodial sentences since relocating to Ballarat in 2009. Mr Castner's engagement with Youth Justice and service providers has been poor, and all of his Victorian Youth Justice orders have been breached by noncompliance or reoffending."
"Mr Castner was released from Port Phillip Prison on 24 February 2015 and placed on a 12 month Community Corrections Order after serving 189 days on remand. This was Mr Castner's first time in adult custody. Mr Castner was originally remanded at the Metropolitan Remand Centre in September 2014 and was placed in the Management Unit of the centre after receiving threats from other prisoners.
"Mr Castner was moved to the Marlborough Unit at Port Phillip Prison on 3 December 2014. This is a unit that specifically has trained staff who can provide suitable support for persons who have intellectual disability."
49I have already spoken about the assistance of Disability Services in this matter.
"Correspondence from Michelle Enbom, Disability Unit Coordinator at Port Phillip Prison advised that Mr Castner was removed from this unit just prior to his release in February 2015, as he continued to bully lower functioning prisoners. She reports that Mr Castner presented himself as much higher functioning than the cohort on the disability unit, and was often noncompliant with programs or rules. However, she acknowledges that Mr Castner struggles in the mainstream units of Port Phillip Prison.
"He is currently remanded in the Matilda Unit at Port Phillip Prison. An email from Ian Crayson, Supervisor, Matilda Unit, outlines that Mr Castner is somewhat vulnerable in the unit, stating he has been involved in a number of incidents where he has put his hand up and accepted responsibility for offence he may not have committed. However, Mr Crayson also reports that when Mr Catner feels anxious or stressed, his “default position” is to get angry and make threats. Another supervisor, Steve Biram, Matilda Unit, described Mr Castner as manipulative. He acknowledged that Mr Castner has been stood over and bullied at times, but reports that such is no more or less than any other inmate.
50All of that makes for pretty unhappy reading for the Court, I must say. I am of course not bound by that report, and have on occasions made orders imposing Youth Justice Centres upon people, despite the views obtained from the s.32 report.
51Mr Westmore lodged a supplementary submission dated 12 November 2015, being Exhibit 3, in consequence of the report. I accept Mr Westmore's submission of the law as detailed in paragraph five thereof, that one is not involved in a balancing process in making an assessment under s.32(1) of the Sentencing Act.
52I do not think it is necessarily a criticism of the report, it is just that they have balanced those two factors against each other and concluded that your noncompliance, and continued failure to rehabilitate, and poor prospects of such, mean that despite the vulnerabilities that have been explained, you are not suitable.
53Clearly, I accept Mr Westmore's submission on law that when a Court is looking at this option, either of those factors are sufficient if a Court takes the view that it is appropriate to detain you in a Youth Training Centre. Either would be sufficient to make such an order.
54Mr Westmore argued that your vulnerability, when taken together with your intellectual deficit, your post-traumatic stress disorder, your family background, is such that I should confine you in a Youth Training Centre, and given the seriousness of the crimes, I should exercise the "device" spoken by the Court of Appeal in R v Hill [1996] 2 VR 496, in particular at 505, and utilise the full provisions of s.32(3)(b) and not take the step detailed in s.35, therefore effectively disregarding the presentence determination of - how many days is that at today's date? Is that agreed?
55MR LEWIS: Sorry, I'll have to look, Your Honour.
56HIS HONOUR: But anyway, disregarding the presentence determination, which I will detail in due course, and therefore imposing the maximum term that can be permitted by a Court for detention in a Youth Justice Centre.
57I accept that your intellectual quotient and your psychological condition, being the post-traumatic stress disorder, paranoia, and your anger state call for this Court to give particular and special consideration to sentencing in your case.
58However, I do not accept that the first three principles set out in R v Verdins [2007] 16 VR 269 ‘Verdins’ are applicable here. Insofar as this spree of offending is concerned, the answer lies, as expressed by Dr Cunningham himself, which I have referred to.
59This offending occurred, as he remarks at p.4 of his report, and as you reported to him, in the context of your drug abuse. He points out on the same page that you have told him that you were abusing methamphetamine throughout such offending, which you were aware that such significantly increases your paranoia, your violence, and your aggressive behaviour.
60To the extent on p.5 that Dr Cunningham suggests impaired judgment as to offensive behaviour and consequences, I would reject same as in any way justifying or bringing about a Verdins determination. Your history demonstrates a full understanding, in my view, of your offence behaviour and its consequences. Of course, the principles in Verdins as to the impact upon you of a gaol sentence must be taken into account, given your disability assessment and your mental condition, and the issues that I have referred to, and I do so.
61There was consideration of this issue that I am to determine in R v Fotios & Kastanis (unreported, VSCA, No.25/26 of 1997), which has handed down on 21 May 1997. In that matter, the two young men of 17 years had been involved in an orgy of destruction where they had used a big loader to smash through a building site and cause extensive damage. I point out that both of those two were younger than you, being 17, and neither had any priors.
62The issue for the Court in that case was whether, given their age and the fact that they had no priors, there should be any immediate detention imposed at all. In considering that consideration, the then Calloway JA said as follows: "It was not so much the value of the property damage but the nature of the conduct itself". Such consideration is very important in your case.
63The then Phillips CJ referred to a Queensland Court of Appeal judgment, R v Bainbridge, Cullen & Ludowicki (1995) 74 A Crim R 265, where he said as follows: "There are of course some cases which are so serious that notwithstanding youth and the absence of prior conviction, the offender must go to gaol".
64Here in Mr Castner's case, we are talking about not a first offender or a 17-year-old, but a person who has had a significant legal history concerning essentially the same crimes. A person who committed these offences one month after being given the opportunity of a Community Correction Order, after serving six months in an adult prison, again for similar offences, and who has the history I have recounted.
65At all times in sentencing a young offender, the following principles have to be adhered to, as set out by Redlich JA in Azzopardi & Orsv The Queen [2011] VSCA 372. At [30] to [34] he discussed the sentencing principles relevant to youth, and in particular at [44] he said:
"The general propositions which flow from these authorities is that, where the degree of criminality of the offences requires the sentencing objectives of deterrence, denunciation, just punishment and protection of the community to become more prominent in the sentencing calculus, the weight to be attached to youth is correspondingly reduced. As the level of seriousness of the criminality increases, there will be a corresponding reduction in the mitigating effects of the offenders youth, but only in the circumstances of the gravest criminal offending, and where there is no realistic prospect of rehabilitation may the mitigatory factor of youth be viewed as all by extinguished."
66I make it very clear that all of the matters that I have referred to about you and your youth are certainly matters that I take into account by way of mitigation of this sentence. I accept Mr Westmore's reference to the important case of R vMills [1998] 2 VR 235 and the relevance of the principles therein.
67As I say, at the time you committed these offences, you were already on bail for a series of offences apparently committed within two weeks of being released, again of similar types of matters. These matters certainly are not priors in regard to this, because you have had no convictions. However, they are and were breaches of your Community Correction Order, and as I understand they are currently awaiting determination. I am further advised, the Magistrate has decided not to impose a sentence in the matter until I have imposed a sentence on you in this case.
68Mr Castner, I must tell you, after anxious consideration I have determined that owing to the nature of these offences, in the senses as referred to by Callaway CJ, and your character and past history, in particular referred to in s.32(2) of the Sentencing Act, that despite your young age and the potential for some undesirable inferences in an adult prison, I might say I am not necessarily certain that you are not yourself a potential undesirable influence if I did put you in a Youth Training Centre. But that is not a question for me.
69There is no doubt potential for undesirable inferences upon you in an adult prison, and I accept the principles of Verdins insofar as you will be a person who, sentenced in an adult prison will no doubt do it harder than others in the community would. However, given the considerations that I have just referred to in s.32(2) of the Sentencing Act, I have concluded that it is not appropriate to order you to serve a period of detention in a Youth Training Centre.
70The totality of the matters that I have referred to lead me to a conclusion which I think is inescapable. You must, and will serve your sentence for these crimes in an adult prison. Would you stand, please.
71On the first charge, you will sentenced to a period of imprisonment of 15 months.
72On the second charge, a period of imprisonment of 12 months.
73On the third charge, a period of imprisonment of one month.
74On the fourth charge, a period of imprisonment of 12 months.
75On the fifth charge, a period of imprisonment of one month.
76On the sixth charge, a period of imprisonment of 15 months.
77On the seventh charge, a period of imprisonment of one month.
78On the eighth charge, a period of imprisonment of two years.
79On the ninth charge, a period of imprisonment of 15 months.
80On the tenth charge, a period of imprisonment of two years.
81On the eleventh charge, a period of imprisonment of 12 months.
82On the twelfth charge, a period of imprisonment of 15 months.
83On the 13th charge, a period of imprisonment of one month.
84On the 14th charge, a period of imprisonment of one month.
85On the 15th charge, a period of imprisonment of two years.
86On the 16th charge, a period of imprisonment of 13 months.
87On the 17th charge, a period of imprisonment of one year.
88On the 18th charge, a period of imprisonment of nine months.
89And on the 19th charge, a period of imprisonment of one month.
90Despite the provisions of s.16(3C) of the Sentencing Act, as I have discussed with the prosecutor this morning, which decrees the Parliamentary intention that each of those sentences should be served cumulatively, without in any way undermining the intention of Parliament, it is clear in my view, as put by the learned prosecutor that upon the principle of totality, it is not possible to carry out the Parliamentary edict, given the number of sentences and their degree.
91I do therefore intend to cumulate a portion of those sentences. The rest will be served concurrently. The cumulation will be as follows: The head sentence will be the sentence imposed on Charge 8, being a sentence of two years. To be served concurrently with that sentence and with each other, I will order that cumulatively you will serve six months upon that sentence in regard to Charges 10 and 15, making an additional period of one year.
92Also, you will serve cumulatively upon that sentence and with the other matters that I referred to, a period of three months in regard to Charge 2, that is the armed robbery. And finally, one month in regard to eight charges, being in regard to Charges 1, 4, 6, 9, 11, 12, 16 and 18, making a total of eight months.
93That means therefore that to the head sentence of two years is to be added firstly a sentence of one year, being the two six months on Charges 10 and 15; three months being the cumulative sentence from Charge 2, and eight months of the eight charges that I have referred to, making a total effective sentence, Mr Castner, of three years and eleven months.
94In regard to the summary offences, Charge 47 being the breach of bail, I will impose a sentence of one month imprisonment, and in regard to Charge 48, the resist matter, a sentence of two months imprisonment.
95Insofar as the total effective sentence of three years and eleven months, I have determined that you not be eligible for parole until you have served a period of two-and-a-half years' gaol.
96Pursuant to provisions of s.18 of the Sentencing Act, to be deemed as period of service of that sentence is the period you have already served in gaol, which is now agreed to be 220 days. So that is something in the order of seven months. So of that minimum two-and-a-half years, Mr Castner, the seven months that you already served will be taken off. So your balance will be something like a year and nine months to be served before you are eligible for parole.
97Pursuant to provisions of s.6AAA of the Sentencing Act to the extent that they can possibly be applicable in a case like this, but in order to comply with the Parliamentary requirement, which I think is a difficult Parliamentary requirement for all Judges, but we try our best, had you not pleaded guilty I would have sentenced you to a period of five years and two months, with a minimum parole period of three years and four months.
98With this sentence will go both the report under s.32 of the Sentencing Act and the report of Dr Cunningham. It is most important that you get appropriate treatment in gaol, as has been indicated, to assist you in effecting your rehabilitation. I would hope that the Disability Services that have been explained to me that are available in gaol are accessed by you, because you are a person who needs assistance not when you are about to leave gaol, but now. And somehow we have got the ensure in our community that people in our gaols who have the problems that you have, get assistance when they are in gaol, not when they are about to leave. Let us hope those comments are of some assistance.
99I am also required to, because of firstly Charge 18 and the charges of theft, 1, 4, 6 and 12 impose a cancellation of your driving license, which I do for a period of 12 months. Fortunately, that means that when you come out you are entitled to get your license, all right, so there are no problems.
100I have also made the restitution orders sought, which was originally $47,250. However, it now makes up only the three that I have indicated. I think it is $15,000, $700 and $150. Mr Prosecutor, is there anything else I need to attend to? I suppose they are already signed, are they, forensic orders. They were not sought, anyway.
101MR LEWIS: No, they weren't sought, Your Honour. Just excuse me for a second. No, we don't require that, Your Honour.
102HIS HONOUR: Mr Castner, in layman's language which you will understand, on the top you have got three years and eleven months, all right? You have got a minimum period of two-and-a-half years. And of that, you have served seven months. So essentially it is a year and eleven months.
103What you have got to make sure of is that you get back into that Marlborough Unit, and that means you have got to behave in prison. Because that is where you can get some assistance, all right? So behave yourself. You are not allowed to bully people. I know it is hard to keep yourself safe in prison, but it is important that you get assistance with your problems, because the way you are going, you are going to spend the rest of your life in gaol, and you have got to do something about it.
104And I know it is not easy for you, with your problems, but certainly it does not give any joy to this Court to send a 19-year-old boy like you to a gaol for such an extensive period. But you unfortunately, because of the seriousness of these crimes, leave the Court with no option. But you have got to try and break the cycle. Yes, thank you. You can take the prisoner away.
105Thank you for your assistance, Mrs Castner. We understand the difficulties in your life.
106VOICE (from the body of the Court): Yep. I'm fine, thank you, Your Honour.
107HIS HONOUR: No, you are right. We try our best.
108VOICE: Yep.
109HIS HONOUR: I should say formally, of course, I have taken into account the document that was filed today, which is the letter I read as well in setting out Mr Castner's current appreciation of his issues, and the circumstances in gaol.
110MR LEWIS: Yes, and I think Your Honour actually didn't announce it formally, but the summary matters are concurrent with the other matters.
111HIS HONOUR: Yes, well, I do not have to do, do I? Well, I suppose I do, because they are not concurrent. Anything that I have not ordered cumulatively is to be concurrent.
112MR LEWIS: Yes, thank you.
113HIS HONOUR: I suppose I have to make that order, don't I, because of the provisions of s.16(1A).
114MR LEWIS: I think that may be right, under 16, yes.
115HIS HONOUR: So formally, then, we will make the order that despite the provisions of s.16(1A), except to the extent that I have ordered cumulation, all other offences will be concurrent on the basis of totality.
116MR LEWIS: Thank you, Your Honour.
117HIS HONOUR: Thank you both for your assistance.
118MR LEWIS: Thank you, Your Honour.
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