Director of Public Prosecutions v Christie
[2021] VCC 24
•21 January 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR 20-01042
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| ELLIOT CHRISTIE |
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JUDGE: | HER HONOUR JUDGE LEWITAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 November 2020 | |
DATE OF SENTENCE: | 21 January 2021 | |
CASE MAY BE CITED AS: | DPP v CHRISTIE | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 24 | |
REASONS FOR SENTENCE
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Subject:Aggravated burglary, causing injury intentionally, robbery, commit indictable offence whilst on bail
Cases Cited:DPP v Bourke [2020] VSC 130; Brown v The Queen [2020] VSCA 212; DPP v O'Neill [2015] VSCA 325; Glen Brown (aka James Davis) v The Queen [2020] VSCA 60;
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr L. Harrison (For Plea) | Abbey Hogan, Solicitor for Public Prosecutions |
| Mr J. Hurley | ||
| (For Sentence) | ||
| For the Accused | Mr A. Moloney | Victorian Legal Aid |
HER HONOUR:
1 Elliot Christie, you have pleaded guilty before me to one charge of aggravated burglary for which the maximum penalty is 25 years' imprisonment, one charge of causing injury intentionally, for which the maximum penalty is 10 years' imprisonment and one charge of robbery, for which the maximum penalty is 15 years' imprisonment.
2 You have also consented to this court dealing with the summary offence of commit indictable offence whilst on bail, for which the maximum penalty is three months' imprisonment.
3 At 4.22 on Sunday, 18 May 2020 the victim, Zi Hao Ng, was within the 7‑Eleven convenience store at 197 Russell Street, Melbourne (the 7-Eleven). The victim was working the night shift alone. The door was locked, as required by his employer. The victim stood near the glass entry door with a tray of pies as he restocked the pie warmer.
4 You walked to the locked glass entry door and stood there waiting for the victim to unlock the door. The victim saw you and walked to the front door, using the manual door release to open the door and allow you to enter.
5 You walked into the store carrying an empty paper cup. You asked the victim where the hot water was. The victim showed you to the coffee machine and assisted you with it to enable you to get hot water, as you appeared to be having trouble with it. Once you had the hot water, you walked away from the machine and towards the service counter of the store, placing your cup of hot water on the hot drinks counter. The victim followed and engaged in a conversation with you, pointing you back to the hot water you had just placed down.
6 You then pushed the victim once to the shoulder and then to the chest and face, causing the victim to run from you down the aisle of the 7-Eleven back towards the entry door. You followed the victim and you completed a lap of the 7-Eleven with the victim facing you but trying to move away from you.
7 You continued to chase the victim who again backed down the aisle towards the entry door. When you were both close to the entry door, you swung two punches at the victim, who turned and ran down the aisle to get to the secure service area of the store. You went back down the other aisle also heading towards the secure service door.
8 The victim opened the door and managed to close and lock it before you could enter. You attempted to push against the door before standing in front of the service area. The victim pressed the duress alarm and showed you that he was doing so. He also showed you his phone and told you that he was calling the police.
9 You lifted the lowest set of the security wires and plastic and attempted to get your foot under the wires. The victim pushed back and attempted to stop you from gaining entry. You then started pulling on the plastic sheets until they came free.
10 The victim saw this and again pressed a duress alarm and put his phone to his ear to call police. You stood on the counter and grabbed the safety wire to lift yourself up. The victim tried to stop you, but you stepped through the wire and into the secure area of the store (Charge 1, aggravated burglary).
11 The victim attempted to protect himself before you pulled him into a wall and started punching the victim to the face. The victim tried to protect himself by covering up and you kneed him before punching him a number of times.
12 You grabbed the victim and moved behind him, putting the victim in a choke hold. The victim slumped to the ground and attempted to pull your hair to force you to let go. When that did not work, he grabbed a nearby ladder and attempted to hit you with it; however, you again did not release the hold.
13 After 40 seconds the victim slumped to the floor and put his hands up. You then released the hold. You continued to kneel over the victim for around 20 seconds before getting up and standing over the victim yelling 'You attacked me', while the victim was seated on the floor and putting his hands up to you.
14 Eventually you turned to leave the secure area and the victim opened the door for you (Charge 2, intentionally causing injury).
15 You walked back behind the victim and turned to the victim again, pointing to your own shirt, which had blood on it, and said, 'You attacked me, my shirt cost 170 and now there's blood on it'. The victim was bleeding from his face and you were bleeding from your left hand.
16 The victim convinced you to leave the secured area and locked the door behind you. You went back to the front of the counter and pointed aggressively at the victim and again said, 'You attacked me, my shirt cost 170 and now there's blood on it'.
17 You grabbed a packet of Eclipse mints from the counter and pointed at the cigarette cabinets and demanded the victim give you a packet of Marlboro Red cigarettes. The victim refused, but you continued to make demands for the cigarettes. You grabbed the security wire, threatening to enter the console again. The victim complied and gave you the cigarettes.
18 You continued to threaten and speak with the victim for a further minute before leaving. On the way out of the 7-Eleven, you took a bottle of sports drink from a refrigerated display (Charge, 3 Robbery).
19 At approximately 4.35 am police attended the 7-Eleven and spoke to the victim, who gave them a description of you. Police used that description to have the Melbourne Safe City CCTV checked, which confirmed that you had left the 7-Eleven approximately five minutes before the police arrived. They tracked you to a nearby location.
20 The police found you at the nearby location and placed you under arrest. During a search of your pockets they found the packet of Marlboro Red cigarettes and Eclipse mints.
21 You were transported to Melbourne West police station for interview at approximately 5.30 am. You were aggressive while in police custody, hitting the walls of your cell. As a result, no police interview was conducted.
22 The victim suffered the following injuries:
a. Fracture of the left eye socket with some evidence of soft tissue injury but no injury to the eye; and
b. Bruising to the neck on the left side under the muscle layers.
23 The facts in this case are very serious and disturbing. The offences were committed upon a soft target working alone in the early hours of the morning. It was a terrifying ordeal for the victim. At the time of offending you were on bail, being bailed from the Moonee Ponds police station on 12 May 2020 for allegedly committing criminal damage. At the time of committing the offending before this court, you had been in the community for seven days, having already allegedly committed an offence one day after release.
24 There is a victim impact statement in this matter.[1] I have read that statement and take its contents into account in determining an appropriate disposition. I accept that the victim suffered considerably in the manner described in that statement as a result of this matter. The victim feels scared at work and has had to reduce his work hours. His studies have been interrupted. Your crimes have affected his sleep and your offending affects him daily. He has stopped socialising with his friends and sees a counsellor to teach him strategies to deal with the trauma of your crimes. The defence concedes that the offending would have been terrifying for the victim.
[1] Exhibit E.
25 As has been pointed out by your counsel, there are, however, some mitigating factors. You have pleaded guilty. You are entitled to have that fact taken into account in your favour and I do so. The community has, by your plea, been spared the time and cost of a trial. Witnesses have been spared the ordeal of giving evidence upon your trial. Further, I take it into account in your favour that you intimated your intention to plead guilty to these charges at the earliest opportunity. Your plea of guilty carries a greater utilitarian value at the present time, given the current public health concerns regarding the COVID‑19 virus, which may have impacted on the practical management of a jury trial if the matter had not resolved.[2]
[2]DPP v Bourke [2020] VSC 130, [32].
26 I am not satisfied that you have shown remorse for your actions. A report dated 16 November 2020 by Elizabeth Treston,[3] psychologist, has been tendered. She assessed you on 24 October 2020. She stated that you appeared justified in your punching of the victim. You told her that 'The guy was so rude – he was the one who assaulted me'. I accept Ms Treston's evidence that you did not display a capacity to empathise with victim and did not display empathy for this attack. [4]
[3] Exhibit .
[4] Exhibit 2, [65].
27 I have been told something of your personal history and your circumstances. You were born on 25 May 1991 and are 29 years old. At the time of the offending you were 28 years old.
28 You grew up in Perth and are the eldest of a sibship of three boys. You have two younger brothers aged 20 and 24. Your parents separated prior to your first birthday and you lived with your mother until you were 14 years old. Whilst living with your mother you - - -
29 You grew up in Perth and are the eldest of a sibship of three boys. You have two younger brothers aged 20 and 24. Your parents separated prior to your first birthday and you lived with your mother until you were 14 years old. Whilst living with your mother you describe the environment as volatile, as your mother was unpredictable and consistently yelled at you. You subsequently moved in with your father, but that relationship also broke down.
30 You left Western Australia in late 2019 and moved to Melbourne. You now have no contact with any member of your family and are socially isolated in Victoria. Whilst living in Melbourne, you have spent the majority of your time either in custody or homeless.
Education
31 You were educated at Scotch College in Western Australia. You completed Year 9 but were expelled in Year 10 for fighting and substance use.
Employment
32 You originally wanted to work as a bricklayer. You completed a pre-apprenticeship early into your 20s but left your subsequent apprenticeship within three to four months due to substance use. You have not held substantial employment since that time. You are not currently working while in custody.
Alcohol abuse
33 You began drinking at the age of 11 and had progressed to binge drinking by the age of 14. Your alcohol consumption continued to increase and during the period leading up to the offending you were consuming two bottles of wine daily. In relation to alcohol and the day of the offending you told Ms Treston that:
'He reported being under the influence of alcohol at the time to the point of nearly passing out (approximately three bottles of wine). He said he remembered walking down the street with [a friend] and then "falling into a side alley then just passed out". He reported that when he awoke his friend had gone. He described being confused and "a bit disorientated" at the time. He said he noticed he was out of cigarette papers and went into the 7‑Eleven to get some'.[5]
[5] Exhibit 2, [60]-[61].
Drug abuse
34 You reported using up to one and a half grams of methamphetamine daily and up to 10 mls of GHB per day up to three times a week.[6] You started using cannabis when you were 14 years old and have continued to use it.
[6] Exhibit 2, [53].
Criminal history
35 You have admitted before me to prior convictions. In Western Australia you have received 40 convictions involving 17 appearances between October 2010 and May 2019. Those convictions include two charges of aggravated burglary, one charge of aggravated assault occasioning bodily harm and several breaches of conditional suspended imprisonment order. You received an intensive supervision order in 2014 and conditional suspended imprisonment orders in 2017 and 2019. You breached all of those orders.
36 On 11 May 2020 you were released from custody following completion of the sentence received on 7 April 2020 for one charge of intentionally destroy property, one charge of affray, one charge of intentionally cause injury and one charge of commit indictable offence whilst on bail. You received a total effective sentence of five months' imprisonment. The intentionally causing injury contained in the 7 April 2019 sentence occurred while you were on bail for other offences. While intoxicated, having one bottle of wine in the morning and another at lunchtime, you assaulted a passenger on a train who was unknown to you. You kicked the victim to the face and then punched him in an unprovoked assault. The victim was taken to hospital for medical attention with a broken nose and a black eye. The defence concedes that your criminal history includes relevant matters of violent offending.
The application of the principles in R v Verdins[7] (Verdins)
[7] (2007)16 VR 269.
37 In Verdins the Court of Appeal stated that impaired mental functioning is relevant to sentencing in at least six ways:
(i) The condition may reduce the moral culpability of the offending conduct, as distinct from the offender's legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
(ii) The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
(iii) Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
(iv) Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.
(v) The existence of the condition at the date of sentencing or its foreseeable recurrence may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
(vi) Where there is a serious risk of imprisonment having a significant adverse effect on the offender's mental health, this will be a factor tending to mitigate punishment.[8]
[8] (2007) 16 VR 269, 276.
38 The defence submitted that the nexus drawn in Ms Treston's report between the impact of anxiety and post-traumatic stress disorder (PTSD) in relation to the offending is able to satisfy the requisite nexus for the applications of limbs 1 to 6 of the Verdins principles.
Verdins principle 1: Was your moral culpability reduced?
Anxiety disorder
39 Ms Treston acknowledged your past diagnosis of anxiety.[9] When testing you through the Depression Anxiety Scale, Ms Treston recorded results in the extremely severe range for anxiety.[10]
[9] Exhibit 2, [84].
[10] Exhibit 2, [76].
40 Dr Khan formed a different view when she examined you on 21 February 2020 in connection with the offences you committed on 26 October 2019. In Dr Khan's opinion:
'Mr Christie's history of anxiety symptoms does not meet the diagnostic criteria for anxiety disorders. His descriptions of anxiety states appear to be related with his persistent substance use, in particular, alcohol consumption. It is not unusual for individuals who are dependent on alcohol to experience high levels of anxiety, which they try to treat by increasing the consumption. Alcohol withdrawal states can also lead to experience of anxiety'.[11]
[11] Exhibit C, [39].
41 There is no evidence of an anxiety disorder at the time of this offending in May 2020. As noted by defence in their submissions and in the report of Ms Treston, the testing completed by Ms Treston of the Depression Anxiety Stress Scale (DDAS) relates to the symptoms in the week preceding the testing.[12]
[12] Exhibit 2, [74].
42 The prosecution submitted that you had not previously been diagnosed as suffering from anxiety.
43 When cross-examined, Ms Treston agreed that the withdrawal of alcohol in custody increased your anxiety. She also said that, given you first started drinking alcohol when you were ten or eleven years old, you are in a cycle of alcohol anxiety.[13]
[13] Transcript p 23.
44 In Brown v The Queen[14] the Court of Appeal approved the emphasis by the Court in DPPv O'Neill[15] that:
'Careful consideration needs to be given to whether the evidence establishes that mental capacity has been impaired and which of the circumstances set out in Verdins are engaged. It requires a rigorous evaluation of the evidence'.
[14] [2020] VSCA 212, [62].
[15] [2015] VSCA 325, [68].
45 I accept the prosecution's submission that the testing conducted by Ms Treston is limited and cannot be used to show that you were suffering from anxiety and depression at the time of the offending. I am not satisfied on a balance of probabilities that your symptoms of anxiety at the date of assessment by Ms Treston were causally connected with the commission of the offences.
Post-traumatic stress disorder
46 Ms Treston gave oral evidence. Ms Treston interviewed you for two hours via video link on 24 October 2020. In her report dated 16 November 2020[16] Ms Treston reported that you were the victim of a home invasion during your early 20s. You were held at knifepoint and robbed during this altercation. In Ms Treston's opinion you have experienced post-traumatic stress disorder and have symptoms consistent with the disorder.[17] In Ms Treston's opinion:
'His PTSD symptoms are relevant to the offending; they can fluctuate in intensity and frequency, however are particularly prone to exacerbation under situations of extreme stress or in comorbidity with other mental health issues or substance use'.[18]
[16] Exhibit 2, [40].
[17] Transcript p 8.
[18] Exhibit 2, [96].
47 I have also had regard to a psychiatric report dated 21 February 2020 by Dr Sobia T. Khan.[19] Ms Treston did not consult or speak to Dr Khan.[20] In Dr Khan's opinion:
'At the time of this examination, the most appropriate description for Mr Christie's psychiatric presentation would be mental and behavioural disorders due to multiple drug use and use of other psychoactive substances, mainly alcohol, opioids and stimulants'.[21]
[19] Exhibit C
[20] Transcript p 18.
[21] Exhibit C, [38].
48 Ms Treston carried out testing and diagnosed alcohol use disorder and stimulant-use disorder. Ms Treston stated:
'It appears that there are a number of factors outlined above which are linked to Mr Christie's offending behaviour and impaired functioning. Whilst his acute intoxication with alcohol contributed to actual commission of the offences, his complex hypersensitivity to perceived threats, lack of coping strategies and emotional reaction to conflict have played a significant role in the assault and somewhat explain the elevated level of violence committed'.[22]
[22] Exhibit 2, [100].
49 Ms Treston stated that aggression is one of the most common risk factors for PTSD.[23] In Ms Treston's opinion:
'Mr Christie's complex profile is further complicated by his history of alcohol use, inferred to have developed as a form of self-medication for his anxiety and the loss of his best friend. His self-medication with alcohol after this period appears to have heightened his risk of engaging in impulsive and reckless behaviour, further impairing insight, decision-making and judgement, as well as worsening underlying mental health issues. Alcohol abuse can impair cognitive ability and result in emotional dysregulation, disinhibited and poorly considered behaviour, increasing the risk of criminal misconduct as in Mr Christie's case.[24]
'It appears that there are a number of factors outlined above which are linked to Mr Christie's offending behaviour and impaired functioning. Whilst his acute intoxication with alcohol contributed to actual commission of the offences, his complex hypersensitivity to perceived threats, lack of coping strategies, and emotional reaction to conflict, have played a significant role in the assault and somewhat explain the elevated level of violence committed'.[25]
[23] Exhibit 2, [90].
[24] Exhibit 2, [99].
[25] Exhibit 2, [100].
50 The prosecution submitted that mental impairment causally linked to the offending is not mitigating if the offender knew or should have known self-induced intoxication would cause or contribute to his offending.[26] The prosecution submitted that you should have been aware that your alcohol consumption would have contributed to your offending.
[26]R v Martin [2007] VSCA 291, [15]-[53].
51 It is clear from the letter dated 15 November 2016 by the team coordinator, Continuing Care, Osborne Park at Headspace[27] that in 2016 you engaged in counselling around the issues underlying trauma and substance misuse. The prosecution submits that owing to previous treatment you should have been aware that alcohol intake was a matter that would affect your mental health and give rise to offending behaviour.
[27] Exhibit 3.
52 Ms Treston considered that the level of alcohol abuse is sufficient to meet the criteria of an alcohol use disorder[28] and that your level of drug abuse is such that you fall within the high-risk range for drug-related harm at the time of the offending. [29]
[28] Exhibit 2, [85].
[29] Exhibit 2, [80].
53 Having considered the whole of the evidence, I am satisfied on a balance of probabilities that while your acute intoxication with alcohol contributed to the actual commission of the offences, there is some evidence that your symptoms of PTSD contributed to your role in the assault and the elevated level of violence committed.
54 Although I accept that there should be some reduction in your moral culpability as a result of the post-traumatic stress disorder, I still regard you as being significantly culpable for your offending conduct.
Verdins principle 2: Should your mental condition have bearing on type of sentence and conditions?
55 I accept the defence submissions that you would benefit from a substantial period of support and supervision in the community after you are released from custody.
Verdins principle 3: Should general deterrence be moderated?
56 I accept the prosecution's submission that general deterrence is an important consideration in offences of this kind against soft targets who are vulnerable late at night or in the early hours of the morning. In my view, general deterrence should be moderated to a limited extent in this case.
Verdins principle 4: Should specific deterrence be moderated?
57 Specific deterrence is an important factor in sentencing you, even allowing for your mental condition, due to the repeated attacks on the victim and the imposition of previous sentences, including imprisonment and community-based dispositions. In these circumstances, specific deterrence will be moderated to a limited extent.
Verdins principles 5 and 6: Will a custodial sentence weigh more heavily on you than it would on a person in normal health? Is there a serious risk that imprisonment will have a significant adverse effect on your mental health?
58 The defence submits that principles 5 and 6 of Verdins are enlivened, given that you were suffering from elevated levels of depression and anxiety, to a severe and extremely severe range respectively while in custody.[30] In Ms Treston's opinion your 'Mental health is likely to be exacerbated by a period of imprisonment given your previous psychological vulnerabilities and previous diagnoses'.[31]
[30] Exhibit 2, [76].
[31] Exhibit 2, [108].
59 The prosecution conceded that the results of the testing evidences that you, at the time of the testing, were suffering from elevated levels of depression and anxiety while in custody. The prosecution conceded that this evidence may satisfy the fifth and sixth limbs of Verdins.
60 I am satisfied on a balance of probabilities that a custodial sentence will weigh more heavily on you than it would on a person in normal health.I am also satisfied that there a serious risk that imprisonment will have a significant adverse effect on your mental health. I have taken these matters into account in sentencing you.
Rehabilitation
61 Your prospects for rehabilitation remain guarded and will depend on your ability to refrain from using alcohol and taking drugs and your motivation to engage in drug and alcohol treatments. Ms Treston said that you now recognize the need for treatment to 'Improve your future prospects and create circumstances conducive to a positive life'.[32]
[32] Exhibit 2, [101].
The impact of the COVID-19 pandemic
62 The defence further submits that your remand in a period of COVID-19 confinement has placed a further burden on you because of additional stress and restrictions imposed by the prison authorities.
63 In Glen Brown (aka James Davis) v The Queen[33] the Court of Appeal (Priest and Weinberg JJA) accepted that the COVID-19 pandemic is 'Causing additional stress for prisoners and their families'. The impact of the COVID-19 pandemic is a matter I take into account in your favour in mitigation of sentence.
[33] [2020] VSCA 60, [48].
64 As well as those matters personal to you to which I have referred, including your prospects of rehabilitation, I must also take into account such matters as deterrence, especially general deterrence, which is of considerable importance in a case such as this. I must also consider the question of the protection of members of the community from you and bear in mind the likelihood of your reoffending. I am called upon by the Sentencing Act to manifest the community's denunciation of your conduct and generally to impose a just punishment.
Gravity of the offending
65 While no weapon was used and you were not in company with offenders, the prosecution submits that this is a serious example of an aggravated burglary. This was a confrontational aggravated burglary of a person in their place of work with the intention of assaulting them. You used a level of physicality to enter an area the victim believed to be safe while the victim attempted to stop you. In my view the objective gravity of the offending in this case is in the middle range for this type of offending.
66 This is a serious example of intentionally cause injury. The injuries suffered by the victim were a fracture to the left eye socket and deep bruising of the neck. The victim was required to be in hospital for one night following the assault. This was a protracted assault on the victim. The CCTV footage of the offence shows the victim in a choke hold for an extended period after you punched him repeatedly.[34] The length and strength of the hold caused bruising to develop under the muscle tissue of the victim's neck. The CCTV shows that the physical assault lasted over two minutes and the period of time between you first pushing the victim to your leaving the secure area was over three minutes in length.
[34] Exhibit D.
Sentencing submissions
67 The defence conceded that a term of imprisonment is clearly open to the court.
68 Your counsel referred to Boulton v The Queen (Boulton)[35] and submitted that a community correction order may be appropriate even for serious offences that might previously have attracted a medium term of imprisonment. Your counsel submitted that a combination sentence is within range.
[35] [2014] VSCA 342.
69 Your counsel submitted that although s.44 of the Sentencing Act allows only twelve months' iprisonment to be imposed in combination with a community correction order, it still allows the court to impose a sentence of approximately 18 months' imprisonment being the time already served to be followed by a community correction order. The defence submitted that it would be to your benefit and the benefit to the community if you served a lengthy period of supervision on a community correction order.
70 In the alternative your counsel submitted that the court should impose a longer period on parole so that alcohol, drug and psychological interventions can take place.
71 The prosecution submitted that community protection is a significant factor in the sentencing exercise before the court. You have a history of committing offences of this nature with your last two offences being committed against members of the public without provocation.
72 The prosecution contended that the sentence submitted by the defence involving a combined sentence of imprisonment and a community correction order is outside the range of appropriate sentences in all the circumstances, particularly having regard to the seriousness of the offending, your prospects of rehabilitation, your prior offending and the need for community correction. The prosecution submitted that a period of imprisonment with a non-parole period would be best suited to allow for rehabilitation rather than a community correction order.
73 In my view this is serious offending. I have considered s.5(4C) of the Sentencing Act. Having considered the whole of the evidence and the submissions made by counsel, a term of actual imprisonment is required. The purpose or purposes for which the sentence is imposed cannot be achieved by imprisonment to be followed by the imposition of a community correction order, to which one or more of the conditions referred to in s.48F to J are attached. The imposition of a community correction order in this case would not give sufficient effect to the purposes of general and specific deterrence, the protection of members of the community from you, the community's denunciation of your conduct and the need to impose a just punishment.
74 In paragraph 140 of Boulton v The Queen [36], the Court of Appeal stated:
'There will, of course, be cases where the sentencing court concludes, after engaging in the deliberation now required by s.5(4C), that certain sentencing purposes – typically, just punishment, denunciation and/or deterrence – cannot be sufficiently served by the making of a CCO, even with onerous conditions. Consistently with the principle of parsimony, the court would then impose the shortest term of imprisonment consistent with the achievement of those purposes.
[36] [2014] VSCA 342, [140].
75 In all the circumstances, I have no alternative to the imposition of custodial sentences. I propose to record convictions on all charges and sentence you to be imprisoned as follows:
Charge 1, aggravated burglary, to a term of imprisonment of three years.
Charge 2, causing injury intentionally, to a term of imprisonment of 18 months.
Charge 3, robbery, to a term of imprisonment of one month.
Summary Charge 5, committing an indictable offence on bail, to a term of imprisonment of one month.
76 The base sentence is the sentence imposed on Charge 1, aggravated burglary. I direct that six months of the sentence imposed on Charge 2 be served cumulatively on the sentence imposed on Charge 1. That results in an effective sentence of three years and six months.
77 Having considered the submissions made by your counsel and the need to maximise the chances of your successful rehabilitation, I direct that you serve a minimum term of two years before becoming eligible for parole. You will have the opportunity to continue rehabilitation in the community if you are granted parole.
78 As prescribed by s.18(4) of the Sentencing Act, I declare that the period of time you have already spent in custody is 248 days.
79 Section 6AAA of the Sentencing Act requires me to state the sentence and non-parole period I would have imposed but for the plea of guilty. Your plea has saved time, expense and the need for witnesses to give evidence. But for your plea of guilty, I would have sentenced you to a term of imprisonment of five years and three months on Charge 1, two years and three months on Charge 2, two months on Charge 3 and two months on Summary Charge 5. I would have directed that nine months of the sentence imposed on Charge 2, one month of the sentence imposed on Charge 3 and one month of the sentence imposed on Summary Charge 5 be served cumulatively on each other and on the sentence imposed on Charge 1, making a total effective sentence of six years and two months. I would have directed that you serve a period of four years and six months before being eligible for parole.
80 Are there any further matters?
81 MR HURLEY: No, Your Honour.
82 HER HONOUR: Mr Maloney?
83 OFFENDER: So how long is that? So how long do I have to serve? Like, how long have I got left?
84 HER HONOUR: I will retire from the Bench now and I'll give you an opportunity to speak to your counsel. Is that satisfactory, Mr Maloney?
85 MR MALONEY: Thank you, Your Honour.
86 HER HONOUR: Yes, thank you.
87 MR MALONEY: I'm very grateful for that. No further submissions from myself, Your Honour, thank you.
88 HER HONOUR: Yes, thank you. Yes, so I thank counsel for their assistance. Could you please unmute me.
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