Director of Public Prosecutions v Cluning

[2017] VCC 361

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-00931

DIRECTOR OF PUBLIC PROSECUTIONS

v

CHAD ANDREW CLUNING

---

JUDGE:	HIS HONOUR JUDGE STUART
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	13 February 2017
CASE MAY BE CITED AS:	DPP v Cluning
MEDIUM NEUTRAL CITATION:	[2017] VCC 361

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. A. Pickering
For the Offender	Ms M. Harris

1HIS HONOUR:  Chad Andrew Cluning, you have pleaded guilty to the four charges on the indictment: Charge 1, a charge of recklessly causing serious injury which carries with it a maximum penalty of 15 years' imprisonment; one charge, Charge 2, threat to kill, which carries with it a maximum penalty of 10 years' imprisonment; Charge 3, recklessly cause injury, which carries with it a maximum penalty of 5 years' imprisonment, and Charge 4 on the indictment, unlawfully imprisoned Sarah Louise Nichols, which carries with it a maximum penalty of 10 years' imprisonment.

2In addition, you have pleaded guilty to a number of summary charges which I will come to in due course.  The circumstances surrounding your offending are set out in Exhibit 1, the summary of prosecution opening, which I rely heavily upon for the purpose of my sentencing.

3You were born on 8 February 1976 and are currently 41 years of age.  At the time of offending you were 39 years old.  Your victim in relation to the indictable offences is Ms Nicholls, who at the time of the offending was also 39 years old.  She had been in an on and off relationship with you for approximately four to four and a half years.

4Trevolyn Meyn is the victim in relation to charge 2 and he was at the time of the offence of you threatening to kill him 44 years of age and is employed at the Bayswater railway station as a station officer.

5Turning to the charges in relation to Ms Nichols, being charges 1, 3 and 4, on 13 November 2015, the two of you were drinking at Nelson Street in Ringwood.  You began arguing.  She was on the ground and you kicked her in the left arm.  She was conveyed to the Maroondah hospital by ambulance.  At approximately 3 am she was seen by a doctor who noted her injury, namely a comminuted angulated mid‑shaft fracture of the ulna.  This offence was not reported to the police.  The charge was subsequently laid as a result of admissions made by you during your record of interview and which was corroborated by medical records.

6During the course of the earlier hearing when Mr Farrington was appearing on your behalf on 23 August 2016 I questioned whether the injury was indeed a serious injury, which prompted Mr Pickering to further elaborate upon the injuries.  Mr Pickering said at p.36 line 21: 

"Yes.  Your Honour, while I'm also on my feet, there is one other matter which Your Honour asked me to address, which is the issue of the serious injury or not.  The medical reports that were obtained as part of the police brief refer to comminuted fracture of the mid shaft of the ulna, ‘Demonstrates the increased dorsal angulation and persistent mild lateral displacement'.  There is then a second page of that report which is four days later, which is, ‘A plate and screws transfix the comminuted monteggia fracture of the left ulna in normal alignment’.  It then goes on to make other observations.  So the submission would be that while the definition refers to substantial and protracted, not only do we have a serious fracture, but because of the nature of the plates and the screws having to be inserted, one, that demonstrates the seriousness and, two, it refers to the recovery that would be needed.”

7In the victim impact statement of Ms Nichols she says: 

"The ongoing injuries as a result of the incident are extremely minimal if at all.  No long‑term impacts of medical treatment required. 

There are no physical or psychological injuries affecting my ability to work. 

The incident has not affected me financially.  The crime does not affect my children or family members as nobody is aware of the incident."

8It is unclear whether Ms Nicholls is referring to the latter incident which is the subject of charges 3 and 4, or the earlier incident which relates to charge 1, serious injury.

9During further discussions it was conceded by Mr Pickering, and correctly so, that the serious injury, the subject of charge 1, was at the lower end of the range of serious injuries and I intend to proceed on that basis.  Thus, despite that charge carrying with it the higher maximum penalty of 15 years imprisonment, I do not consider in the circumstances that that offending is the most serious of the charges before the court on indictment.

10It is further to be noted that this charge arises entirely because of a confession by you to this offending which otherwise had not been reported to the police and would otherwise have not been detected.  Thus, the principles articulated in R v Dorian [2005] VSCA 271 are enlivened. In Doran, Buchanan JA stated:

"In my view, the consequences of the appellant's admissions are that they reduce the need for a sentence to personally deter the appellant, they increase the prospects of successful rehabilitation and they demonstrate genuine remorse for his actions.  I would add that I think it important that the appellant should receive a demonstrable discount in his sentence in order to encourage others to make like admissions."

11I proceed precisely upon those articulated principles in relation to charge 1.

12Turning to the circumstances surrounding Charge 2.  At approximately 4.15 pm on Thursday, 7 January 2016 you attended a car park at Eastland shopping centre, pulled down your pants and defecated in view of members of the public.  This relates to summary charge 1, behaving in an offensive manner in a public place.  You then left the car park and boarded a Belgrave bound train at Ringwood railway station and shortly thereafter, at about 4.30 to 4.35, you exited the train at Bayswater railway station and attended the ticketing window holding a pair of scissors. 

13Your victim, Mr Meyn, was working at the railway station and heard you screaming and yelling outside the ticket window.  When he attended the ticketing window you banged your fist on the window and said, "The only thing saving your life is this glass".  Mr Meyn picked up a telephone to call police and you said, "If you call triple zero, I'll come back and hunt you and kill your family".  He then put the phone down and you walked away, turning back to abuse him.

14You then left the railway station and walked towards the Bayswater shops.  Police soon located you in the car park and you were visibly drunk.  That relates to summary offence charge 2.

15You were charged with behaving in an offensive manner in a public place and making a threat to kill and being drunk in a public place and were released on bail to appear at the Dandenong Magistrates' Court on 21 April 2016.

16Two weeks later, on 21 January 2016, you and Ms Nicholls were drinking at 44 Bond Street in Ringwood throughout the day.  At some stage during the evening she was sitting on the edge of the bed and you were standing over her.  You began kicking her and yelling at her, calling her a "cunt", a "mutt" and a "skunk".

17She began screaming in pain and you punched her in the back of the head causing her to fall to the ground and momentarily lose consciousness.  You continued to punch her in the face over and over again.  You then bound her legs together with an item of clothing and bound her arms together with an item of clothing and wrapped a dog lead, of all things, around her neck which restricted her breathing.  You then left the premises and she was able to free her legs and remove the dog lead from her neck.

18She began walking towards Ringwood police station and was assisted by neighbours prior to the police taking her in to their care. She was photographed before being conveyed to the Maroondah Hospital by ambulance.

19Upon initial presentation at that hospital at about 8.49 pm she showed signs of facial trauma, swelling to lips, nose and right eye, pain to the jaw, left and right side rib pain and pain to the left shin.  In the early hours the following morning she was seen by a doctor who noted the following injuries:  bruising/contusion left leg and elbow, bruising/contusion to the neck, blow out fracture of the right orbit with herniation of the muscle limiting movement of the right eye, left parietal scalp haematoma and fractured right 11th rib with no damage to the lung.  She was discharged from the hospital the following day.

20Charges 3 and 4 of recklessly causing injury and false imprisonment relate to those incidents, together with the related summary offence of committing an indictable offence whilst on bail, charge 3.

21Despite her minimization of her injuries in her victim impact statement, which appears to relate to that incident rather than the earlier incident the subject of charge 1, I am satisfied that the injuries are as described, but I note, of course, that you have been charged with recklessly causing injury, not serious injury, and I act on that basis.

22By far the most serious of the offending involves the combination of charges 3 and 4, with you binding her and using a dog lead to wrap around her neck and apparently her mouth.  I will return to some of those matters in dealing with statements made by you during the course of your record of interview.

23I now turn to summary charges 1‑5.  On Friday, 8 January 2016 at about 6.30 in the evening, a witness was standing in the Eastland shopping centre car park near the escalators at the Coles supermarket where he saw and heard you ranting and raving about a dead bird.  A short time later the witness has seen you hitting parked cars within the car park, causing damage to several of those vehicles, one vehicle covered in blood, and he then notified the police.  That relates to summary charges 1‑4.

24Shortly after police attended and found you asleep outside the Eastland shopping centre on Warrandyte Road in Ringwood.  When awoken you were nursing a bloodied right hand and stated that your bird had died.  On several occasions you attempted to stand up but were too unsteady on your feet.  This, combined with your slurred speech, glassy eyes and empty cask wine box in your belongings led the police to believe that you were drunk.  You were attended by ambulance treating the injury to your right hand.  As a result you were charged with being drunk in a public place, charge 5.

25As to that charge 5, I find the charge proven and dismiss it pursuant to the provisions of s.76 of the Sentencing Act. In relation to the summary charges 1 and 2, which relate to behaving in an offensive manner, defecating in public, and being found drunk in a public place, I find those charges proven but dismiss them again pursuant to s.76 of the Sentencing Act.

26Your prior criminal history reveals that between 27 June 2000 and 18 December 2015, a period a little under 15 years, you have been dealt with during the course of 12 court appearances and 32 offences.  Those offences include three charges of either causing criminal damage or wilfully damaging property, two charges of recklessly causing injury, one charge of unlawful assault, one charge of threat to kill and two charges of intentionally causing injury.

27You have been released on three community corrections orders, one on 15 October 2002 for which you were breached on 1 November 2006, the second on 1 November 2006, and a third in more recent times on 19 September 2011 for which you were breached some three months later on 9 December 2011.  In addition, you have been released on an intensive corrections order on 30 September 2008 for which you were breached on 23 April 2009.

28Mr Farrington, who appeared at your initial plea hearing, pointed out that apart from relatively minor offending leading up to 2006 you had not been dealt with for anything of moment, and I accept that.  It was after 2006 that your criminal history became more serious, coinciding with the period when you had separated from your wife.

29Mr Farrington, in his helpful plea set out some of your background, which was considerably supplemented by reports which I will come to, but at line 21 of p.40, he said:

"At a very young age the father and mother split and then from that point up until Mr Cluning's mid-teens he resided with his mother in what he describes, that they were basically living in a car.  He was bouncing in and out of various different primary schools because his mother was, as I say, living out of the car.  There were periods where they would move in with new boyfriends and the like, but that would be short lived and then he was back to being homeless with his mother and other sibling. 

His youth, his upbringing, his recollection of home life is a father who was absent but when he was present he was violent, and a mother who was addicted to drugs and alcohol, substantially so and so much so that she was unable to maintain relationships, employment or even a family home and so, as I say, up until the age of 14 or thereabouts he was living with his mother in a car. 

At the age of 14 he left the family home and was largely homeless or bouncing between friend’s homes and the like from that point in time, commenced using drugs and alcohol at that age, first smoking marijuana, drinking alcohol to excess and at about the age of 17 he was using heroin.  But despite that and despite leaving high school at the age of 14, he took himself to TAFE, completed some further adult education and became a roof tiler".

30A little later at p.41 Mr Farrington then continues at line 16:  "Hard work, Mr Farrington".  Mr Farrington:  "Indeed."  "About as hard as you get."  Mr Farrington continues: 

"About as hard as you get and certainly he readily acknowledges that and describes that when he was fit, when he was healthy, he was just that, and it was obviously a mechanical, laborious type of job, he was fit, he was healthy, he had a wife, he had three children, two sons and a daughter, and I'll come to this in a moment, but with whom he hasn't had a relationship up until very recently once the parties separated.  But it's then when the parties separate in 2006 that he falls back on old habits and when the relationship deteriorates he was charged with assault in relation to her, which was the reckless cause injury. 

31In essence, Mr Farrington's submission was, as follows at p.20, referring to a letter that later on was tendered and written by you. Mr Farrington, at line 15:

"…well written and certainly he makes a number of appropriate points, and I use the term conundrum because he is someone who suffers from a number of significant personal issues and someone who since Your Honour has seen from the prior criminal history, from about 2006 has done very little with himself other than drink himself into a stupor, abuse drugs and find himself coming to the attention repeatedly of the criminal justice system."  I say, "Many of them look like street offences, Mr Farrington."  Mr Farrington:  "They are, and since 2006, and that's a significant point in his life, he separated from his wife at that time and up until that point he'd had one, two, perhaps three court appearances which were predominantly for possession of marijuana, but up until 2006 he had gotten himself to a point in life where he was married, had a strong work history and had three children, and this is in the face of somebody who was brought up in what could properly be described as extremely difficult conditions and I'll get to that in a moment, but he gets to a point in 2006 where he separates from his wife and from that point onward everything falls apart.  He begins abusing alcohol, abusing drugs and he abused drugs as a young person and he returned to drugs and has been ostensibly been homeless since 2006 and when I say homeless, he's been giving in tents, living on the streets and at the time that he was arrested on 21 January of this year in relation to these matters he and his partner, Ms Nichols, were squatting in an abandoned house.  And so he's had that itinerant homeless existence where simply his focus has been on drinking and drug abuse, but in the context of a person who despite that existence, he has to some extent been aware of his shortcomings and on his instructions a lot of them are street type offences which he’s been involved in such as the damage to the cars where he was arrested and found drunk in a public place were attempts on his part to bring attention to himself because he did feel that he was spiralling out of control."

32In your record of interview you demonstrate remorse for your offending.  You confessed to offending which would not have come to light but for your confession, namely the subject of charge 1 on the indictment.  It is useful to extract some portions from your record of interview for they demonstrate aspects of your life and confirm the instructions that Mr Farrington based his plea upon.

33At question 31 you were asked, "There you go."  Answer:  "Sam and I have lived in Ringwood now - we've been together four and a half years.  We split up a year ago because I left the building, we lived in opposite ends of the building.  We were volatile lovers from the start, heavy drinkers.  We've both got a lot of problems in our past and when we get angry - we know how to cut each other down so we know what - inside out - we know each other inside out.   So we know how to hurt each other.  What she can say with a word, I can't, and I get angry.  I've been violent with her before but she won't ever dob me in so I hand myself into psych wards and all this but then that's only a bandaid fix and they fill me up with lithium and whatever and they go, 'Oh, he's sedated. He's fine', and let me out.  I'm not fine, Sarah knows I'm not fine, I haven't been fine since I stepped off the ………. I haven't been fine in ten years since I got divorced.  I haven't seen the kids because of my violence.  I was never violent towards my first wife and - and on the day we separated I was, I bit her on the nose because I knew it was the end and she'd been with someone else and I was a workaholic, you know - not anymore.  I got hit by a train in July.  They haven't put me on the pension yet." 

34In relation to your offending which is the subject of charges 3 and 4, at question 147 you were asked, "And what about around her - it's around her neck, underneath the - the dog collar."  Answer:  "Yeah, I would have ‑ 'cause that would have been to keep her hands up away from her feet."  Question:  "All right.  Here's another - another picture, this is a- like, a full"  Answer:  "I'm going to do five years for this."  Question:  "Police ‑ she was found… like, wandering in the street and – half - half naked"  Answer:  "Oh no.  What have I done?  Oh, no.  'Cause she's – she’s ………. Mate, and look what I've done because of my anger."  Question:  "Mm.  Yeah, look I - I was aware these photos might cause you a bit of anxiety?"  Answer:  "See, we get drunk, we get so drunk we don't know what we're doing."  Question:  "I won't show all of them ‘cause I think it's going to upset you but, look, have a look at the ‑ ‑ ‑ ?"  Answer:  "No, no, give it to me mate.  I’m want to - I'm going to cop a five-year sentence for this, I want to see what I've done".

35Later in the interview at question 224, question:  "Mm’hm"  Answer:  "I came in here several times.  I've been cautioned so much, if you have a look at my rap sheet, right, I can choose to be good and I can choose to be bad, and when I've got problems, I choose to be bad because I need help."  "Mm?"  Answer:  "So I have ‑ lashing out ‘cause it's something that was instilled in me when I was younger, because it got me over a bad situation.  Being volatile and stupid got me out of a childhood cupboard.  My mum had police out to me".

36And then at question 271 you say, "And I'll make full admissions in court."  Question:  "Do you want to say anything in answer to the charges?  Anything further that you haven't said already?"  Answer:  "I need help."  "Mm,hm?"  Answer:  "So does Sarah."

37Then towards the very end of the record of interview you were asked at question 280, "Do you wish to comment on any of this information?"  Answer:  "No, I make full admissions ‑ I ‑ ‑ ‑ "  Question:  "All right?"  Answer:  "I need some help with this."

38It is plain from that material, not only from what Mr Farrington has said but what you said yourself, that you are indeed insightful and remorseful for what you have done.  You know that there is a direct connection between your alcohol abuse and your anger and, as it turned out, your violence towards your then partner.

39I have had the benefit of two very thorough reports which I will now turn to.  The first is a psychiatric report of Dr Danny Sullivan, which became Exhibit CC3, dated 20 August 2016 in which he notes that you have been moved to protection units after being targeted due to your incontinence and the use of incontinence aids.  He noted that you associated your loss of bowel function and the need for incontinence aids as a result of an injury caused by you being struck by the side mirror of a train and falling into the track area.  You attributed that injury to a brain injury and it was Mr Sullivan's concern that this was potentially evidence of  an acquired brain injury, a matter which I'll turn to in due course.

40Your substance use history is fully set out by Dr Sullivan and includes that you commenced injecting methylamphetamine at the age of 34, having dabbled in speed at the age of 15 to 17.  He says:  

"Mr Cluning reported that he had used ecstasy and in fact around the time of the index offence stated that he had been on ‘a 15 day bender’ and both he and his partner were coming down off ecstasy, to which he attributed some of the irritability between them.  He had stated that at the time he was also 'obscenely drunk'."

41In the opinion and recommendation sections Dr Sullivan noted that there is a provisional diagnosis of recurrent drug‑induced psychotic disorder and says:

"Mr Cluning reports lowered mood.  In the presence of severe substance use, with recurrent intoxication and withdrawal, it is difficult to determine if there is an underlying depressive illness.  Currently I could not elicit clear features of a depressive disorder despite some issues relating to incarceration. 

It is difficult to determine whether Mr Cluning has a personality disorder.  On the one hand, he reports a period of successful adaptation to adult life, with accommodation, employment and family.  On the other hand, Mr Cluning describes a chaotic and abusive upbringing with a substance-abusing mother, which may have predisposed him to personality difficulties."

42A little later Dr Sullivan continues: 

"At the time of the offences, Mr Cluning was, by reports, grossly intoxicated.  His behaviour was, through substance use, disinhibited and he could not think clearly or make calm and rational choices.  Intoxication was causally associated with the alleged offences.  Intoxication impaired his judgment and reduced his awareness of the wrongfulness of his conduct. 

If they are confirmed, acquired brain injury or mental illness may have influenced these factors, both directly and in predisposition to substance use. 

Mr Cluning has a guarded prognosis."

43And then still later:

"Mr Cluning should remain abstinent from substance use.  If he persists with substance use his prognosis will be poor". 

44And a little later:

"Without opiate substitution and medication aimed at reducing the likelihood of alcohol, abuse, Mr Cluning is likely to relapse rapidly".

45I agree with those conclusions, save this, I do not consider this is a Verdins type scenario.  You knew that with intoxication you could, together with your partner, descend into violent behaviour towards her.  This is what happened.  You chose to become intoxicated.  Though that intoxication provides some explanation for your conduct it provides absolutely no excuse.

46As a result of concerns held by Dr Sullivan about whether or not you have an acquired brain injury a neuropsychological assessment report was prepared by Dr Matt Treeby dated 22 November 2016, which became Exhibit CC4.  In that report he repeats much of your background and, as to your general intellectual functioning, considered that you have a full scale IQ of 101 and your verbal comprehension skills fell overall at the average range.  Whilst your expressed vocabulary was high average and your general knowledge score was average, he stated:

"Mr Cluning's perceptual reasoning abilities fell overall at the Average to High Average range.  His ‘hands‑on’ visuo‑spacial construction skills were within normal limits (Average) and his perceptual reasoning skills were a strength at the High Average range".

47As to your new learning and memory:

"Mr Cluning demonstrated well preserved memory function on formal assessment". 

48Dr Treeby continues:

"There was no evidence of executive dysfunction assessment.  Mr Cluning demonstrates good planning and organising skills when he was tasked with copying a complex visuospacial figure and his ‘hands on’ construction skills were also within normal limits (Average).  His perceptual abstract reasoning abilities were a strength at the High Average range, while his verbal abstract reasoning skills were also within normal limits at the Average range.  His phonemic and semantic verbal fluency were both well preserved at the Average range.  Mr Cluning demonstrated an intact ability to switch between mental sets (i.e., tasks or two trains of thought) and could do so at Average speed.  He performed at the Superior range on a test of mental and inhibitory control".

49As to your psychological state of distress as reported:

"His depression symptoms fell at the Severe range and his anxiety symptoms were rated as Extremely Severe.  His stress levels were also elevated at the Moderate range".

50As to the summary and conclusion Dr Treeby observed:

"There was no evidence of executive dysfunction on assessment and his performances on tests of planning and organising, verbal fluency, abstract reasoning, mental control, and divided attention were consistently all within normal limits (Average or above).

Mr Cluning demonstrated well preserved cognition on formal assessment and performed within normal limits on all tests administered.  There was no evidence of an acquired brain injury or an intellectual impairment.  Cognitive impairments cannot account for his long history of offending.  That being said, I note Mr Cluning's most recent offending occurred during an episode of substance intoxication, during which time his impulse control, judgment, and ability to make calm and reasoned decisions may have been, to some extent, acutely impaired".

51As to the risk of reoffending Dr Treeby states:

"Mr Cluning presents with several historical (i.e., static) risk factors for recidivism including early maladjustment, a history of violence, severe substance use problems, prior supervision failure, and what likely constitutes Cluster B personality traits.  He also presents with a poor ability to cope with stress, mood symptoms, and I note that there was a documented history of poor impulse control while under the influence of substances.  Mr Cluning's risk of recidivism can regrettably be considered high given these clear risk factors.  His risk of reoffending would be reduced should his mental health and substance use problems be addressed going forward.  While Mr Cluning clearly has the cognitive capacity to benefit from therapeutic interventions, the effectiveness of any intervention would be contingent on his motivation to meaningfully engage with average supports and appropriate treatment programs. 

Mr Cluning's substance use is clearly disordered and he would benefit from the ongoing engagement with a pharmacotherapy treatment provided who can assist with management with his opioid and other substance dependence.  Drug and alcohol counselling (i.e., talk therapy) during this period of incarceration and upon his release may also be beneficial".

52I accept entirely the assessment and opinions of Dr Treeby.

53During the course of your imprisonment you have completed as many courses as you possibly can and that is proven by the Exhibits CC2 and 5, to your credit.  You have thus been busy whilst you have been in custody.

54You have also written a letter dated 10 August last year, which became Exhibit CC1, in which, in part, you write:

"To Your Honour. 

I write this letter not to ask for clemency because I am guilty of the charges I have pleaded to, but to ask for consideration when sentencing. 

1.  I am fully remorseful for my intemperate behaviour. 

2.  I made full admissions of guilt to police, even gaining extra charges in doing so. 

3.  I have made no application for bail. 

4.  I have been placed in protection due to my medical condition, which means I have to contend with many restrictions, not living with the mainstream prisoners and limited education".

55Mr Farrington submitted at p.23: 

"He is always within the protection environment in prison but within that protection environment he is ostracised, bullied, ridiculed because of his personal circumstances being that he simply defecates himself at inopportune times and without notice".

56I am satisfied in those circumstances that prison is more burdensome for you than other prisoners in like circumstances.

57You have readily acknowledged the wrongfulness of your conduct from the beginning.  You are truly remorseful.  You have pleaded guilty to all these charges which has, of course, the utility benefit from you having pleaded guilty, as well as further evidencing your undoubted remorse.

58Your background was one of impoverishment.  You received none of the benefits that one normally expects for a child.  You had no family life other than such as was provided by your mother, which was an itinerant lifestyle and chaotic.  Surprisingly, for one so brought up and you being a person who has engaged in significant drug taking from an early age, you were able to pull your life together and lead a normal life within the community, becoming, as you have described it, a workaholic.  All that came crashing down with your separation and ultimate divorce from your wife around 2006.  Your lifestyle since has been a return to the chaotic lifestyle that you experienced as a child emulating, it would seem, some aspects of your mother's lifestyle.

59Imprisonment has given you an opportunity not only to detoxify yourself, but to reflect upon your past life and your future ambitions.  I have no doubt that if you return to abuse of alcohol and drugs your life will rapidly spiral completely out of control again.  You will return to your itinerant, drunken, violent lifestyle, but I am satisfied that you have made a decision to turn your life around upon your release.

60It is in the community's interest, just as it is in your interest, that that determination should be assisted by the sentence which I impose.  Thus the sentence must take into account those matters which mitigate your offending.  In addition, the sentence I impose must dissuade others from offending such as you engaged in.  Your victim was bound.  You used, of all things, a dog lead in an endeavour to silence her.  She was found wandering semi naked by passers-by.  Women are entitled, no matter what the circumstances are, to feel safe, not to be beaten, and certainly not to be bound.  You treated her like an object but she is a human being and you realise that now and you were ashamed by what you saw of her injuries when you were shown photographs during the course of your record of interview, and so you should be.

61The sentence must also deter you from further offending.  If you return to your previous lifestyle of drug and alcohol abuse your prospects of rehabilitation are dismal.  If, however, you decide to take control of your life, not return to drug and alcohol abuse, your prospects of rehabilitation are good, but the decision is entirely yours. 

62You know that you become violent and angry whilst disinhibited by drugs and alcohol.  Should you return to that lifestyle I have no doubt that you will come before the courts again and again and you will receive longer and longer periods of imprisonment.  The choice in the end is entirely yours.

63The sentences that I impose must also take into account the need here for just punishment and denunciation of your despicable acts.

64I received a community corrections order report which is favourable and recommends supervision, alcohol assessment and treatment, mental health treatment and participation in offending behaviour programs.  It is also suggested that I impose judicial monitoring, which I do not intend to empose.

65It has been submitted, both by Mr Farrington and by Ms Foster that a combined period of imprisonment and a community corrections order is appropriate in the circumstances.  If the maximum period of imprisonment that I impose could have been up to two years, I would not have considered that to be an option at all.  However, you have already spent over a year in custody and that fact is a matter that permits me to make an order in effect greater than the two year maximum that would otherwise be applicable.

66Taking all these matters into account, on the charges on the indictment and the remaining summary charges I sentence you as follows:  an aggregate sentence of two years nine months.  I set a minimum non‑parole period of two years subject to you entering into a community corrections order for a period of two years which has with it the following conditions, namely, that you receive alcohol assessment and treatment, mental health treatment and participate in offender behavioural programs and that you are under supervision for a period of two years.

67Are you prepared to enter into that community corrections order? 

68OFFENDER:  Yes, Your Honour.

69HIS HONOUR:  Yes.  I will declare pre‑sentence detention of 387 days and I state that but for the pleas of guilty I would have imposed a sentence of five years and set a minimum non‑parole period of three years.  Take a seat, please, Mr Cluning, whilst the order is prepared. 

70MR PICKERING:  Your Honour, while that is being done, the ancillary orders that were provided to Your Honour on the last occasion, my instructor has updated the documents to today.

71HIS HONOUR:  All right.  I will hand them all back. 

72MR PICKERING:  The dates have been updated to today, that's all. 

73HIS HONOUR:  The community corrections order would commence after the conclusion of any parole period.

74MR PICKERING:  Yes, Your Honour. 

75HIS HONOUR:  Are there any errors or other matters that, factual matters, that I have made during the course of those sentencing remarks? 

76MR PICKERING:  Not that I noted, Your Honour, no.

77HIS HONOUR:  If there are any just email Mr Brown, my permanent associate, and they will be attended to when I revise the sentencing remarks. 

78(Community correction order acknowledged and signed by offender.)  

79Yes, nothing else, Mr Pickering? 

80MR PICKERING:  No, Your Honour.

81HIS HONOUR:  Thank you Ms Harris.  You may remove Mr Cluning, please. 

‑‑‑