Director of Public Prosecutions v Clarke

[2014] VCC 726

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 13-01217

DIRECTOR OF PUBLIC PROSECUTIONS

v

PETER DARREN CLARKE

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	15 May 2014
CASE MAY BE CITED AS:	DPP v Clarke
MEDIUM NEUTRAL CITATION:	[2014] VCC 726

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. Bhai
For the Accused	Ms M. Mykytowycz

HIS HONOUR: 

1Peter Darren Clarke, you have pleaded guilty to one charge of armed robbery, one charge of theft and one charge of handling stolen goods. Those crimes carry maximum penalties of 25 years, ten years and 15 years respectively.  You pleaded guilty at a reasonably early opportunity.  I am now satisfied that you have expressed appropriate remorse for that offending.  You must also, of course, get the utilitarian benefit of that plea of guilty.  You are 28 years of age and have prior convictions that are certainly relevant to these proceedings.  You have two prior convictions, as I understand it, for robbery, but you do not have any for armed robbery.  

2The circumstances of the offending were that on 3 October 2012, which I note was two days after the anniversary of the death of your father, you went to a house in the Geelong area.  You knocked on the door of that house and said that your name was John.  You said that you needed to ring a taxi.  You said that you were visiting a mate in Forster Street who was not home.  The occupant then said she would ring a taxi for you, which she did.  You were told to wait outside and the taxi was on its way.  As the taxi approached that address at about 9.20 pm, the driver observed you standing near a corner.  He could not see your face, as it was under a jacket.  He drove past, did a three-point turn and tried to get you in his headlights so he could see your face.  As he did this, you ran to the taxi.

3He says that he locked the car from the inside to stop you getting in.  You then attempted to get in the back seat.  He wound the passenger-seat window down and told you to get in the front-passenger seat.  You then entered the taxi and sat in that seat.  This time he got a clear look at you.  It is you, so there is no dispute about that.  Soon after you entered the taxi, he saw you bend forward and do something with your face.  When you sat up he saw that you were wearing a black-coloured plastic-looking mask.  He then saw that you were holding a knife with the blade pointing towards him and he described that knife.  He said that you said, "Give me money, motherfucker.  That's what I want."  In response he leant over and grabbed both of your hands.  He said he noticed that you were wearing black, woollen-like gloves.

4You allegedly said, "Give me all your money, I will stab you," as he held onto your hands.  A struggle ensued.  The taxi driver tried to push you out of the still open passenger door.  The taxi started rolling, as the brake was not on.  You then tried to leave the taxi and he let go of you.  You opened the middle console of the taxi and removed something.  I note that it was much later that the allegation was made that you had taken a mobile phone charger.  You then jumped out of the taxi and the driver drove away.  He looked in his rear-view mirror and said that he saw you chasing the taxi.  He drove to a police station.  He noticed a cut to his forearm, but there is no charge of causing injury here and I take that no further.  I will not go through how you were actually apprehended, but indeed you were.  That gives rise to the charge of armed robbery. 

5The charge of theft involves a woman who was 44 years of age at the time.  At approximately one o'clock in the afternoon of 4 October 2012, the next day, she parked her car in the Geelong Hospital car park.  She got out of her car carrying a handbag and her work bag.  When she was a couple of steps away, she noticed you walking towards her.  She had her handbag over her right shoulder, was holding her work bag in her left hand.  As you walked past her, you reached over and grabbed her handbag by the strap and then ran away along Millers Lane towards Bellarine Street, taking the handbag and the cardigan that was resting on it.

6After that, she followed you for a short distance.  She saw her cardigan on the ground and got it back.  A short time after she returned to her car, she saw you again walking on the footpath on the opposite side of Swanston Street.  You were not carrying the bag.  As a result of her observations, she then described you.  You were then further identified from CCTV.  That gives rise to the charge of theft.  The handling stolen goods - when you were arrested for these matters on 10 October, police found you with a mobile phone that was stolen.  The charge is really as simple as that.

7There is a victim impact statement from the lady in relation to the theft, who describes very eloquently in some detail the consequences, very serious consequences, to her in a psychological sense of the crime that you committed.  I have, having heard you discuss all this during the course of Koori Court, grave doubts as to how much of this you remember and how much you do not.  But in any event, handbag snatching is never a pretty crime and it causes people to have ongoing psychological trauma and sometimes paranoia.  I take those matters into account.  There is no victim impact statement from the taxi driver.

8Armed robbery is always a serious crime.  It calls for the application in the normal course of events of general and specific deterrence, as well as denunciation and appropriate punishment.  Theft obviously is a very wide-ranging charge, as is handling stolen goods.  It was not said otherwise than that a gaol sentence is inevitable in situations such as this, all the discussions taking place as to how long that gaol sentence should be and whether a community corrections order could follow it.  In the end I have had you assessed for a community corrections order and I propose to impose a gaol sentence plus that order.

9It is important in this situation to endeavour to explain how this matter has unfolded.  Firstly, tendered on your behalf was a report from Mr Kreuzen, a psychologist, and I take the contents of that into account.  Also tendered were certificates that you have obtained in gaol doing a great number of courses.  You are now 28 years of age and, as Terri Stewart pointed out, the Koori Court manager, during the Koori Court sentencing hearing, you spent a lot of time as a young fellow in institutions and as an adult in gaol.  It seems to me clear that on this occasion at least you have endeavoured to use that gaol time to the best of your endeavours and there has been a significant turn‑around in you.

10You have not had a community-based disposition since you were a child.  At the age of 17 you were transferred into adult custody by reason of you and some others either escaping from or not returning to YTC.  During the course of the sentencing conversation, you described yourself as a little boy learning to live in an adult gaol.  You described that very eloquently.  You have, ever since then, had a sense of I think bravado about you.  As you indicated, you try and keep your head down in gaol, but if there is trouble it does not seem to frighten you all that much.  I think that you are in great danger of becoming institutionalised, if you have not already.

11The matter came on in Koori Court for the first time on 16 December last year.  At that stage the elders sat with it.  I point out from the outset that appearing in Koori Court does not of itself get anybody a sentencing discount; what does often happen, though, is that, because of the process of Koori Court where you are able to sit there and essentially - I mean no disrespect in this - ignore the judge and talk to your elders, that it becomes clearer to everybody what the problems are, what can be done to resolve them, gives everybody a better understanding of why the offending took place.  It is also a circumstance where one frequently gets a far better sense of the remorse and shame that can accompany such offending.  That is exactly what has happened in your situation.

12Back in December it was my view and, as would have been clear to you as well, the view of the elders that you were courageous in the view that you unloaded your burden in front of them and the way that you spoke about what had happened to you and what you wanted to do with the future.  It was clear that you had a determination to endeavour, on this occasion, essentially because of the potential of a pre-existing relationship and a daughter who at that stage was about six months old, to rehabilitate yourself.  The concern that I had, and again the concern that the elders had, was at that stage that you were not accepting full responsibility for the offending, that you blaming drugs for it and that you were essentially denying some of the things that the victims said.

13That is not uncommon in these circumstances.  The elders pointed out to you that you just had to accept that responsibility that it was you who offended and it was you who was responsible for the rehabilitation.  As you pointed out then, and it was made very clear by your counsel, whenever you have been released and look like you might have been in a secure situation, something has gone wrong.  Apart from some parole guidance, of which I am unaware of the detail, you have never had that community support.

14Again, as was pointed out in that first sentencing conversation, you have great community support with the Aboriginal community and family support.  Aunty Joan said to you that she had never seen that many people at Koori Court and I said the same, not even down Bairnsdale, where people have got extended families that can come along.  They all obviously think there is something in you, Mr Clarke, and I think it is important that every endeavour is made to achieve that something if it can be. 

15At that point in time, because I was concerned about your attitude and because also I was of the view that you had not done sufficient gaol to justify imposing a sentence at that time, I adjourned it for a period of five months to see how you went.  What I said to you at that time was insofar as a CCO was concerned, "Very well.  It is not to be taken that this will happen, it is a chance to show a genuineness in terms of rehabilitation rather than just saying 'everyone is doing this to me'," and as I then said, "and we will see where we go from there."  I said also then that we would get the same elders back and that I did not want you coming back and just complaining, that the things had to be done to afford protection not only to yourself but to the community upon your ultimate release.

16Koori Court sat again on 12 May 2014 with the same and one - I think from memory - additional elder.  As each of the elders said, and I was certainly struck by this myself, we were talking to a different man.  There was no sign of that blame of others.  There was a clear acceptance of responsibility.  The work that you had done in terms of getting programs and the like into place for your ultimate release was surprising.  You told us how that first occasion had been important to you because it had given you the chance to release all these matters and that you now realised fully that you had to talk to people, that you had to deal with these problems that come from your childhood and from your circumstances.

17During the course of that conversation I formed the view that you were, as I think I have just already indicated, basically a different person.  The problem is you have got to keep that up.  I then look at your history.  I do not think I need to go into this in great deal because I do not think it something that you have never heard before.  I will simply operate from the summary and what was said in conversation and what was provided by your counsel.  I have read the matters contained in Mr Kruezen's report and obviously I take those into account.

18You were one of three brothers, one of whom is in custody with you.  We have the situation this morning where I was told by your counsel that in fact the unit you were in was a unit with very little facilities, but you had chosen to go there because your brother was there and other indigenous prisoners were in there.  In any event, you were brought up; you went to school in Shepparton.  You had trouble concentrating and you played up at school.  You were bullied and subject to racist taunts in primary school.  Undoubtedly that went on into your secondary education. 

19You have always had an interest in your indigenous background.  I will not go into the family aspects of it, but, shortly before his passing I understand that your father was looking at his indigenous background, which went all the way back to Tasmania many, many, many years ago.  Your mother painted and you are a very good painter.  I have seen an example of your artwork that you handed to us during the course of the sentencing conversation and I think it is outstanding.  You were also, as Terri Stewart - who has known you since you were a little boy - pointed out, a very, very good dancer.

20You have had a number of incidents occur to you and I am not here going to go into the detail of every single thing that occurred.  The principles outlined in the High Court decision of Bugmy are applicable in your particular situation.  The first that I am going to talk about - and as I say, there are others - is when you were about 12 years of age.  Your 14-year-old cousin was talked into climbing onto a shade cloth by you.  You were in the courtyard at school after school had finished and the two of you were fooling around, jumping on it, when it tore and your cousin fell through it.  He crushed part of his skull.  You ran to try and get help from a white man's house nearby.  I have no doubt that because you were Aboriginal you were told to go away. 

21You went to the house next door to that and asked them to call the police.  You returned to your young cousin, who then died in your arms before the ambulance arrived.  You moved your cousin off the asphalt and were later told, unbelievably, that picking him up may have worsened his condition.  You have said that you draw or doodle on paper with a pen when you talk about this event, because otherwise you break down.  You showed a lot of courage in that sentencing conversation talking about that.  That is something that you have carried with you since you were a 12-year-old child.  You think of that incident every single day of your life. 

22You were expelled from school in year 8, which would have been around about the age of 13 or 14, I expect.  In response to being expelled for school and in response to the incident I think with your cousin, you began to drink alcohol every day and smoke marijuana with your peers.  You began using speed at 15 years of age; ecstasy at 17; and from 17 years on, then using methylamphetamine and heroin to self-medicate.  You are currently on methadone and, to your very great credit, you have organised for your methadone to continue upon your release from gaol and you have done that yourself, organising a doctor and a chemist.

23After you began drinking and using cannabis, you have a significant number of Children's Court matters.  I am not going to go into all those; Terri Stewart knew all about that.  They really started when you were about 11 or 12.  You were using as a child and you said that you used to "escape the shit feelings and trauma" associated with the event that I have described.  You first injected heroin in 2003 and you learnt - from recollection I think you said that was in custody.  You also learnt how to steal cars and break into houses whilst in custody.  You eventually became part of the scene which you initially loathed.

24You have had other children born.  I will come to that in a moment.  The next incident that I will talk about is that you have had relationships and you have had, as I just indicated, other children.  In 2006, you had a child, Ethan, who was at that point about ten months old.  You had another child, Peter junior, born shortly before the time I am about to talk about.  You were in gaol and a friend came and told you that Ethan had died of SIDS.  I do not know whether the gaol let you go to the funeral or not. 

25On 1 October 2005, your father had committed suicide by hanging himself.  You told your counsel that you did not know why and you wished that you did, as you were close to your father at the time.  You talked about that during the course of our sentencing conversation and you have talked about that again.  I have no doubt that the anniversary of your father's death, who at that stage was very much exploring his ancient, for want of a better term, Aboriginality was very devastating to you.  As I have indicated already, this offending occurred just a couple of days after the anniversary of his death.  It is an incident which you still struggle with.

26The next incident was the birth of your daughter, Shira, who was born in June 2013.  She is your child and Ms Elston's, or Charmaine, as I will refer to her.  You have had a relationship since you were kids, as I understand it.  Charmaine has an acquired brain injury and has difficulties and there has been DHS involvement over an extended period of time.  It was explained to me that there are times when your relationship is very, very good and there are times when it is not good.  There has been domestic violence involved in it, which I suspect deeply would have been party brought about at least by the illicit drug use, of which each of you has participated.

27In December 2011, another incident occurred which had a grave effect upon you, too.  At a family gathering you heard a blue, for want of a better term, starting between two male friends.  You left and, after you had gone, one of the men fatally stabbed the other one within about 15 minutes.  They used you to identify the body; you had to wait about eight hours to do it.  You described to Mr Kreuzen a very graphic account of going to Mildura for the funeral with other close friends, dressing the body for presentation to the immediate family.  You told Mr Kreuzen that "I can't forget any of that or the fact that I let him down". 

28Clearly you take responsibility in terms of your sense of loyalty to your bros for that death.  It is not your fault at all, as you intellectually probably know, but emotionally you see it that way.  It was that event that in the ultimate, after you had been pretty good for a while, led to a dramatic relapse in drug use started by popping a few pills and here we are. 

29That is a devastating background for a young man of 28.  Those of us experienced in Koori Court and working with Aboriginal people are not exactly shocked by it; we see it a fair bit, but I think it is almost incomprehensible to some people, the difficulty of trying to deal with "sorry business" or grief when you are in custody, the feelings of guilt of their people having died and being buried and you unable to attend the funerals and all those matters.  What has happened is that you are clearly now in a situation where you wish to address all these things.  You do not want to be like you have been in the past and you do not want to end up as you have been for years now, as a statistic of Clarke, number - and I apologise I have forgotten the number, but you do not want to be a number and I understand that only too well.

30You have regular contact with Charmaine and it is now a situation with DHS so that you cannot reside at the house with the child, but there is ongoing negotiation and ongoing matters being involved in that.  The situation is that your daughter is under the supervision of DHS; that at the time we first dealt with this matter, Charmaine was breastfeeding, was drug-free and on the road to a solid recovery.  That would appear to be still the case. 

31What has happened, and this is very important, in the last six months of so you have made massive steps.  At the first Koori Court hearing back in December it was pointed out to me that a Jodie Chatfield had been working with Charmaine and had been working with your daughter, Shira.  She had been unable to attend at that first hearing.  I must confess that I did not realise the significance of that at the time.  At the second hearing, she was able to attend.  She works with Glastonbury Community Services, which is a voluntary organisation.  She is a clearly very strong Aboriginal woman and has very much taken you under charge, if I can put it that way.

32She started her involvement with your family through DHS and dealing with Charmaine.  She has also then extended that to dealing with Sheeva, your young daughter, and I got the impression it was a large extent because of her Aboriginal kinship with you she extended that care to you.  She has facilitated visits, she has seen you, she is looking after you in that sense.  She liaises with DHS to try and look after your interests.  When you are released, she will be in a position where she can provide grief referral, which is crucial, as you know and as the elders know and we are talking to you about.  On release, she will remain your support worker.  Whilst I will be putting you on a community corrections order, I have got no doubt that she will be able to maintain that position.

33As I indicated to you, and I put this in the sentencing remarks, if problems arise with the CCO - and I understand that sometimes you can have personality clashes and the like - it is very important that you, through your lawyers, bring the matter back before me and we will see what we can do about it. 

34The other people involved - and one Hanna Buttigieg was present at the last hearing, a drug and alcohol counsellor.  She has visited you twice in Port Phillip Prison and can continue working with you upon your release.  She is involved in obviously many situations of people with drug problems and she can assist you with strategies surrounding relapse prevention.  She is also, as I understand it, associated with the Glastonbury Community Services and you are a lucky man to have met them.

35The third protective aspect of all this is that you have been receiving fortnightly visits from Uncle Dave Dryden since the last hearing.  Uncle Dave Dryden is a very strong Aboriginal man.  He comes and he talks to you every couple of weeks, talking about men's business and family matters.  Again it gives me confidence that, knowing that that man is interested in you and that you know him, if difficulties arrive you will not hesitate to contact him and get the support that he can provide.  I appreciate that, being in Geelong, that might be a bit difficult, but you can certainly talk to him on the phone.

36The other organisation that has been brought into this is Bethany Community Support Services.  They have in the last few months, as I understand it, put a number of things into place.  The first and one of the most important is that they have arranged for transitional housing in Geelong.  That transitional housing can become available on 2 June.  You cannot, because of DHS requirements, live with your child and her mother, but you can certainly be in the same town.  This puts you in a situation where you will be in a house.

37Because of your - if it is not, it is very close to it - institutionalisation, they will be putting in programs for you for basic living skills:  teaching you how to cook, how to look after a house - and it will be a house, not just a unit or a flat - and those basic day-to-day understandings and skills that a person needs, not only for himself in your situation but to parent a child and to look after, in Koori terms, a missus.

38You will be placed, and have been recommended for, a men's behaviour program.  That will be a situation where you will be dealing with anger management.  As well as that, you will be placed with a Mr Bernard Leavold.  He will be dealing with you insofar as family violence is concerned.  So your drug use, your sorry business, your violence and your anger can all be dealt with by skilled people who understand Aboriginal people. 

39Whilst you have been on remand, and again these things are important, you have now twice engaged in the five-day Marumali Program, which is a healing-based program run by elders which discusses matters surrounding the Stolen Generation.  I know you have done that twice and the last time you told us in sentencing conversation it the most powerful and you were still on a high from it, having done it a couple of weeks ago.  Terri Steward, the Koori Court manager, has explained openly that that is a very difficult program.  It is no joke.  It is intense and it goes for a week and it takes a lot of emotional courage to get through it.  That give some confidence that you are fair dinkum about what you are doing.

40You have had difficulty with certain programs, because you are not a sentenced prisoner and because of the Scarborough Unit that you are in; however, I am told from the Bar table, and accept, that Mr Knox, the Aboriginal liaison officer that gaol, says that you have always while he has been dealing with you been engaging and keen to do programs and has asked repeatedly that you be able to do things to assist in your rehabilitation.  As I have already indicated, it is clear that your art is outstanding and, as Terri said, so is your dancing. 

41Again as I indicated, you organised for a GP at the Wathaurong Co-op and a chemist for your ultimate release.  That is to access methadone.  I have checked you have clean urines from the gaol over an extended period of time, which is impressive.  As you indicated I think earlier, the first use of heroin was in gaol.  You do have depression; it is not to a level which involves Verdins, but you have taken Avanza and that can be looked at in the terms of the community corrections order that I will be imposing if you agree.  For someone with your background and someone with your difficulties, what you have been able to achieve over the last year or so from a position of custody has been - I say this quite frankly to you, Mr Clarke - remarkable.

42You are clearly, I think, an intelligent man.  You can certainly string a few words together and you have got good insight.  You might not have such good insight when you are using drugs, but you have got good insight into what is needed for you to rehabilitate and good insight into the damage that happens to other people when you do offending like you do if it is the situation of you using ice or something like that and you do a stick-up, as I think we talked about during the sentencing conversation.  The last dozen or so Melbourne County Koori Courts have involved armed robberies and there has been knives in a bunch of them.  They have nearly all involved ice.  When those knives get used - and they do in ice armed robberies - people get seriously hurt.

43It is not just yourself that you have got to look after here, it is the potential people that could be dead at your feet if you start using again.  That is not lecturing you as such, it is just making it clear that this is not just about you, it is about the community as well.  I have taken all those matters into account. 

44Also, and importantly because of the disposition I am will be involving, by reason of this offending your parole was breached.  You have completed six months of parole.  At the conclusion, as I understand, of that six months of parole you were then given four months for other offending.  Therefore you have done ten months for which you could not get concurrency for these matters.  As at today's date, you have now been in custody for something in excess of a year and a half.  I take that very much into account insofar as totality is concerned.  Obviously when I adjourned this matter, it gave you an extra five months to be served for this and you now have 278 days of pre-sentence detention.

45What I have determined to do and discussed with counsel is to give you a short extra period of time until that accommodation becomes available and also a period of time where people can get things ready for you.  I do not want you walking out the door with things not exactly ready, so things like the chemist and those things can be all organised knowing when you are actually going to get out of gaol.  If you can keep this up, you can be a very proud man.  There is no reason why you cannot be a strong Aboriginal man and a strong Aboriginal father and partner. 

46In looking at these matters and those overall general principles, I am always minded of what was said in the DPP v Toumngeun, where it referred back to the DDP v Leach where it was said,

"It is particularly important that this court should not devalue or deny the right of a sentencing judge to act mercifully in a case where it seems to the judge to be an instance where an opportunity for reformation of an offender ought be grasped.  That, after all, may be a decision which redounds very much to the benefit of the community."

47It then went on to talk about Pres. Maxwell in the case of Tokava:

"A sentencing judge should be astute to investigate whether a non-custodial disposition is to be preferred, even in a case of a serious offence, if in the long term the community’s interest will be best served by that course.  This Court should seek to promote public understanding of the fact that - apart from the interest of the individual whom it is sought to rehabilitate, an important interest in itself - there is a vital community interest in maximising the prospects of rehabilitation of an individual who has been convicted of a serious crime."

48I think yours is that situation, almost exactly, Mr Clarke.  You have had years and years of gaol, you have had years and years of custody since you were a kid.  You are now in a situation where you have displayed that you are at a point - and late 20s, early 30s is where fellas often turn this around - of a determination to rehabilitate.  I note that Leach talked about a merciful decision; having been through all the material, I do not think what I am about to do is merciful, I think it is absolutely spot on for your particular situation and suits all those sentencing needs, if it did not then apply some mercy.  Counsel understands what I am saying.  Even if it did not, I would still do it, but I think it does.

49Also in terms of a CCO I think it has been a big concern recently about what is happening with CCOs.  I just want to simply refer back to what was said in the second reading speech about that:

"The government recognises that gaoling an offender is the most serious punishment available.  There must be a flexible and practical approach to community-based sentencing that can be tailored to suit the very wide range of offending which, whilst serious, does not warrant a sentence of imprisonment.  This approach is embodied in the reforms introduced in this bill."

"A CCO sits between imprisonment and fines in the sentencing hierarchy.  The CCO will be available for any offence punishable of more than five penalty units.  The CCO will also provide an alternative sentencing option for offenders who are at risk of being sent to gaol.  These offenders may not yet deserve a gaol sentence but should be subject to significant restrictions and supervisions if they are going to live with the rest of the community.  The broad range of new powers under the CCO will allow courts wide flexibility to tailor their response to address the needs of offenders and set appropriate punishments,"

50- and obviously look after the community.  So that is what they are for.  You have already done - not all for this, obviously, but you have now been locked up for 19 months and it is in everybody's interest that you now get out with the appropriate community protection and appropriate protection for yourself. Your risk of re-offending on any objective assessment has got to be high.  The subjective assessment - having spoken to you, I think you have reduced that dramatically and I think your determination to rehabilitate is genuine and impressive. 

51Having said all that, on the charge of armed robbery you are sentenced to be imprisoned for a period of 299 days.  I direct that 278 days be reckoned as having been served under that sentence.  It is my desire and understanding that you will be released from custody on 6 June.  On the charges of armed robbery, theft and handling stolen goods, if you agree, you are to be placed on a community corrections order.  It will be with conviction.  It will be for a period of 18 months and will contain the conditions referred to in the report.  You have obviously been assessed and have been found to be acceptable.  Counsel had the opportunity of addressing that report.

52The conditions are supervision, assessment and treatment for drug abuse or dependency, mental health assessment and treatment and programs or courses aimed at addressing factors relating to the offending.  As was discussed in detail during the course of this hearing, what I am intending is that those conditions embrace all the matters that have been put into place over the last period of time.  Accordingly, if you accept that, that is the sentence that will be imposed. 

53MS MYKYTOWYCZ:  May I approach - - -

54HIS HONOUR:  Yes, of course.  I'd like you go down, if you would.

55MS MYKYTOWYCZ:  Actually, Your Honour, there is one matter.  The order is here to start on 6 June; was it Your Honour's intention to start it on 10 June, which was after the long weekend so he's released on 6 June?

56HIS HONOUR:  No, it starts on the 6th, but he then gets four days.

57MS BHAI:  Two working days.

58HIS HONOUR:  Two working days to turn up.

59MS MYKYTOWYCZ:  All right, thank you.

60HIS HONOUR:  So it starts on the 6th.  So he's subject to it; he then gets two working days so he doesn't have to report to the CCO people till the Tuesday or Wednesday, probably.  But, yes, the Wednesday - so that gives him that weekend.

61PRISONER:  While I'm standing, can I just say thank you for the kind words you have said to me during the course of this hearing.  It really means a lot to know that, you know, people do think there is something within me, because I haven't really had the experience much of someone really saying, you know, that they believe that there's something better for me.  So I just want to say thanks and I appreciate you giving me this chance.

62HIS HONOUR:  Yes.  The only thanks I need, mate, is knowing that you're going to be able to get out and look after your kid and your missus, all right?  And yourself.

63PRISONER:  Yes.  I'm doing my very best.

64HIS HONOUR:  So thanks for saying that, but - and I understand how hard it is for a black fella to stand there and do that, too, so I do deeply appreciate that.  I think also what I should say is this, while you're standing there - is to thank counsel very much for the way in which they have conducted this.  It is not - Koori Court is all about, you know, not sitting behind the mouthpiece.

65PRISONER:  Yes.

66HIS HONOUR:  Counsel very much so in this have put in a lot of effort and it just shows you that it's a good process.  All right?  I'm glad that you feel as if you've been heard.

67PRISONER:  Yes.

68HIS HONOUR:  Yes, all right.

69PRISONER:  Thanks.

70MS BHAI:  Your Honour, there's just one other matter and that's the 6AAA declaration.

71HIS HONOUR:  I wouldn't be doing that because I've given him a CCO as well.

72MS BHAI:  As Your Honour pleases.

73HIS HONOUR:  I discussed this with someone the other day.

74MS BHAI:  Yes, I appreciate that, because the provision that allows the CCO and term of imprisonment doesn't fall within the part that requires a 6AAA.

75HIS HONOUR:  That's precisely right, so it's just sort of meaningless.  I don't know what I would have done if he'd fought it out, whether I would have given him a CCO or not or anything.  So, no, I understand that, but I've sort of stopped doing it in that situation, because it's just meaningless.  I think I've indicated already what the armed robbery was worth if he hadn't - - -

76MS BHAI:  Yes, Your Honour.

77HIS HONOUR:  By itself, if he hadn't been through this.  All right.  So that order's made and again, thanks, ladies, that was very well done, if I might say so.

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