Director of Public Prosecutions v Craig
[2019] VCC 1957
•25 November 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR-19-01592
Indictment No: K10321204
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MITCHELL CRAIG |
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| JUDGE: | HIS HONOUR JUDGE TINNEY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 18 November 2019 |
| DATE OF SENTENCE: | 25 November 2019 |
| CASE MAY BE CITED AS: | DPP v CRAIG |
| MEDIUM NEUTRAL CITATION: | [2019] VCC 1957 |
REASONS FOR SENTENCE
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Subject: aggravated burglary, recklessly causing serious injury x 2, recklessly causing injury , threat to seriously injure. 2 summary offences assault with weapon and commit indictable offence on bail. 24 year old now. Relevant prior criminal history.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms Baxter (Plea) Ms A. Hodge (Sentence) | Office of Public Prosecutions |
| For the Accused | Mr May (Plea) | PM Lawyers |
HIS HONOUR:
1 Mitchell Craig, you have pleaded guilty to one charge of aggravated burglary, two charges of recklessly causing serious injury, one charge of recklessly causing injury and one charge of threatening to inflict serious injury. A guilty plea was also entered to two summary offences, being assault with a weapon and committing an indictable offence whilst on bail. The maximum penalties are correctly set out in the summary.
2 You were born on 12 November 1995 and are now 24 years of age. You have a relevant criminal history.
3 This matter was opened to me on Monday of last week by Ms Baxter, who appeared on behalf of the Director of Public Prosecutions. She opened in accordance with a written plea opening that was dated 28 October 2019. Your counsel, Mr May, informed the court that it was an agreed statement and because of that, I regard it as unnecessary to provide the full detail of the sentencing facts in my reasons. I will sentence in accordance with that agreed statement. This was serious offending.
4 As briefly as I might, you knew a man named James Grant. You had purchased cannabis from him in the past. The entry as a trespasser to his house in East Doncaster on 3 February 2019 was with the intention to steal, and it was aggravated by you having a knife with you. Obviously you were there to steal the cannabis. It was no minor offence. You were entering residential premises in the early hours of the morning as a trespasser and you were disguised. You had a balaclava over your head. Once inside, you very quickly grabbed a male from behind and then applied duct tape to his head and dragged him towards the kitchen. He was a complete stranger to you. He just happened to be there. You tried to stab that man; that is a man named Luke Thompson. He hit the knife away and, in the course of the interaction, he sustained a deep laceration to his thumb and a cut to his elbow. Other people entered the room, one was a woman named Mulligan. You told her to get off the phone and menaced her with the knife asking her, 'Where is the weed?' Hence, the summary assault with a weapon. She said she did not know. You asked her where Jimmy was. This was a reference to Jimmy Grant. She cried out for help. Grant himself had been out in the garage having a smoke and he heard the commotion from inside. He entered the room. You charged straight at him and pushed him up against a door in the laundry, you pointed the knife at him and yelled 'Where's your bud, where's your bud? He told you he kept it in the esky but that there was none left.You dragged him to the kitchen, pushed him up against the fridge and put the knife to his throat saying, 'Give me the fucking bud or I will slit your fucking throat.' There was a struggle between you and a man named Remfrey-Pettit who had come into the room and had seen you menacing his friend Grant with the knife. Now, that man placed you into a headlock and threw you to the ground, and he and Grant then tried to subdue you. In the course of the ensuing struggle, Remfrey-Pettit sustained serious injuries to both hands, and Grant received deep lacerations to the fingers on his left hand and to his wrist. They were trying to disarm you. You were a trespasser in the house. You ran from the scene, leaving blood everywhere.
5 This was just total mayhem.
6 You had sustained an injury yourself.
7 Now the three victims who sustained physical injury were taken by ambulance and received the medical intervention described in the summary. The wounds are described in the summary, and there is some further detail attached to a victim impact statement that is filed before me. The photographs also depict the injuries. The photographs of Grant's injuries are horrifying.
8 Despite the balaclava, you had been identified as the trespasser by some of the occupants. On that same day, as a result of that, police attended your residence and they found a roll of black duct tape with blood and your prints on it. Also, some blood on a door handle. You were arrested the next day at the St Vincent's Public Hospital.
9 You made a no comment interview, as was your right.
10 You were on bail at the time of this serious offending.
11 You have been in custody since, but you have also been undergoing a sentence from 21 May of this year. On that date, you received a term of imprisonment at the Ringwood Magistrates Court, being a total effective sentence of 16 months, with a non-parole period of nine months. That was imposed for a large consolidation of offences of varying degrees of seriousness, occurring over a substantial period of time. You had been on bail for those matters, so no pre-sentence detention was declared by the Magistrate when he imposed that sentence. So, there will be the need to declare the pre-sentence detention in the lead-up to that sentence, as well as the need for me to fix a new single non-parole period.
12 You pleaded guilty at an early opportunity.
Victim impact statement.
13 I hardly need a victim impact statement to know how frightening this offending was. That is really a given. However, there is a victim impact statement here going into the actual impact arising from the serious injuries sustained by
Mr Grant. Now, I was advised that a small portion of that statement was not admissible and hence, not relied upon, and I have of course put that from my mind. But the impact here has been very substantial. Your crimes have impacted upon him in almost every way. It is also apparent from the sentencing submissions, which were unchallenged, that Mr Remfrey-Pettit had not been able to return to work for a significant period of time after this attack. Both of those men were tradesman, who need to use their hands in their work; Remfrey-Pettit as a plumber, Grant in fine detail work as an electrician. The impact here has been sizeable, which is hardly surprising. You accept from your plea the fact of serious injury arising here in each case where that offence is charged, and that is owing to the substantial and the protracted nature of the injuries that you caused. I take into account the impact of these crimes.
In Mitigation
14 Mr May conducted the plea on your behalf. A written outline was marked as Exhibit 1. There was a report from a neuropsychologist marked as Exhibit 2, and a bundle of summaries for the subsequently dealt with matters marked as Exhibit 3. There was a letter from your father and two other personal references that were marked as Exhibit 4. Your counsel took me to your family background and work history. He made submissions as to the relative seriousness of the offences and the weight to be given to the various purposes of sentencing. He conceded that you had a poor history before the courts with many relevant past convictions or appearances, and a history of non-compliance with a number of court orders. He made submissions as to the existence of family support and suggested that you had at least some prospects of rehabilitation. He really could not put it any higher than that.
15 In mitigation, he chiefly relied upon:
· Your early guilty plea;
· The presence of some limited remorse;
· Your relative youth;
· The existence of an acquired brain injury and the application of some of the principles from the case you heard discussed, the case of R v Verdins.
· Your counsel conceded the inevitability of a sizeable prison term and one requiring the fixing of a new single non-parole period.
Prosecution
16 The prosecutor on the plea, Ms Baxter, had prepared some detailed sentencing submissions. There was really nothing controversial in those submissions; I just see no need to restate them all. Whilst accepting that the case of Verdins had some modest application here, the Director of Public Prosecutions was calling for a term of imprisonment with a non-parole period to be fixed. So much was conceded to be inevitable by your own counsel.
Background
17 I will turn only briefly to your background, as I have no reason not to accept what I was told about you by your counsel. You were born on
12 November 1995. You were 23 years of age at the time of this offending in February of this year, but of course you have recently turned 24. So, you are still a young man. You were the younger of two children. It would seem that you struggled at school. There were behavioural issues both at school and at home, and you were placed into a residential facility for quite some months. You struggled further in secondary school and you were expelled. You left in Year 9 and you had sporadic employment as a labourer or a panel beater and, at one point, in a landscaping apprenticeship. You have, I believe, a three-year-old daughter. There has been a long term problem with a variety of drugs. You name it, you have used and abused it. Also, long term alcohol abuse over at least a decade, that likely has caused an acquired brain injury.
18 Your counsel says that you have a significant and relevant prior criminal history. He is right, you do, with a number of court appearances, many of them in the Children's Court, for crimes of violence and property offences. I am not going to set them all out in these, my reasons, but your history before the courts includes appearances for intentionally causing injury, two instances of recklessly causing injury, two unlawful assaults, assault with an instrument, recklessly causing serious injury, a number of robberies, and affray. You have breached most court orders and, as I have said earlier, you were on bail at the time of these offences. The need for specific deterrence and community protection is very clear in this case, I am afraid.
19 Let me turn now then to consider the matters that have been raised on your behalf in the course of the excellent plea conducted by your counsel.
Guilty plea
20 I turn firstly to your plea of guilty. You have pleaded guilty at what I will treat as at an early stage.
21 Your victims have all been spared the experience of being called as witnesses. Being cross-examined can be a distressing enough experience. It has been avoided here. I must reward you for your stance in pleading guilty. You have facilitated the course of justice. You have taken legal responsibility for your offending. Other witnesses, not just your direct victims, have also been spared the experience of coming to court to give evidence. The community has been saved the time, the cost and the effort associated with the conduct of a trial up in this court or, for that matter, a committal down in the Magistrates' Court. So, I take these various matters into account in mitigation.
Remorse
22 Your counsel argues that you have some limited remorse. I must say, there is no great sign of any on display. You have very limited insight into the seriousness of your actions as the report of Ms Scott makes clear. It is possible that your acquired brain injury diminishes your insight to a degree. You have pleaded guilty at an early stage, and a guilty plea is often indicative of some remorse. Here, of course, it was a strong case. I will treat the plea as being indicative of some limited remorse here, but beyond that, I see little evidence of any genuine remorse or contrition in this case. I turn then to your age and your youth.
Youth
23 You are still quite young. Of course, I am aware of those many cases, to which I was referred, dealing with the importance of youth in the sentencing process, for instance, cases such as R v Mills[1998] 4 VR 235 and Azzopardi v R [2011] VSCA 372. I do not ignore those cases. The problem is you are no silly teenager launching forth on your first offending. You are still quite a young man, recently turning 24, but your counsel accepts that you have accumulated a pretty disturbing criminal history in a short space of time. This was serious violent offending by a man with a number of violence offences convictions or past appearances before the courts. The weight to be given to your youth must be reduced in a setting such as this. I am not saying it is to be ignored. It will not be. It is still of some importance and so, of course, is your rehabilitation, but your past efforts can give me no cause for any great optimism. You can really no longer expect much by way of leniency arising from your youth, especially when committing serious offences of violence. That is just the reality of getting older, of not taking the chances offered to you by courts and continuing to seriously offend, and in a violent fashion. There is necessarily less focus placed on youth and your rehabilitation, and greater focus on other purposes of sentencing. I turn then to your prospects of rehabilitation.
Rehabilitation
24 Given the chronology of offending, the failure to comply with virtually every past court order, the long term nature of your abuse of alcohol and drugs, the existence of the acquired brain injury, and the commission of these serious offences whilst on bail, how can I really make any favourable conclusions as to your future prospects? You have family support, which is at least something, but you always have had. Your mother and father were present in court the other day. So too were your partner and a friend and they each provided references which I do take into account. Each see some good in you and have a plan for the future and hope to support you upon your ultimate release. Your partner tells me you have been doing some courses in custody and that you really had reached rock bottom at the time of these crimes being committed. You hope to have a meaningful role in your daughter's life. Your father's letter is a bit sad to read. I feel for him and your mother. The way you act is just so foreign to the values that they sought to instil. Neither that obvious family support, nor a stable relationship with the young woman mentioned on the plea impeded you from committing this serious offending whilst on bail. You have breached court order after order. As they should, courts have bent over backwards to limit your exposure to youth justice detention or prison, but to no avail. There is now a strong need to deter you and to protect the community from you. You are now in an adult prison serving your first sentence. I can only really be very guarded as to your prospects of rehabilitation. I do not find that you have no prospects at all, that is just too gloomy a view to reach in relation to a 24-year-old, but those prospects are looking pretty poor from where I sit at the moment. Keep abusing alcohol and drugs and they will reduce virtually to zero. As I say, I can only be very guarded here as to your future prospects of rehabilitation.
Report of Laura Scott
25 I take into account the report of Ms Scott. It is a lengthy report. I am not going to cite slabs from it in these reasons which will be quite long enough already. I accept that you have an acquired brain injury. You are drinking yourself into an early grave, but until that point is reached, you are seriously damaging your cognitive capacities on an ongoing basis. You must urgently stop abusing alcohol and illegal drugs or there will be simply no hope for you. Your counsel relies upon that condition, the acquired brain injury, as reducing to some degree, your moral culpability and leading to some slight moderation of general and specific deterrence. Also, as increasing your custodial burden. So, he relies upon principles 1, 3, 4 and 5 in that case that you heard discussed. They are said to be engaged here. I must say I had some doubts on the plea about whether those principles were enlivened here. What relationship or connection was there really between your acquired brain injury and this offending? Not much that I could see at first blush. Despite what you may say to Ms Scott, this was undoubtedly a planned attendance. There was nothing too impulsive about it. You had a balaclava, you had duct tape. Your counsel told me there had been a disagreement between you and Mr Grant as a result of an earlier occasion where you had provided money and got no drugs.
26 You were also using drugs, which themselves would have a strongly disinhibiting effect upon you. So, what role, if any, does your acquired brain injury play in this offending? What role the drugs? How then does your acquired brain injury have any realistic connection? That was the concern that I was having at the time of the plea. Since the plea, as I have said I would, I have read all the materials again, including the submissions that were made, and including the report of Ms Scott. Ultimately, I will accede to the submission that the acquired brain injury may well have played some role. There may be some nexus between the executive dysfunction described, and impulsive and aggressive behaviours. So, I will find that there is a modest reduction in your culpability (limb 1). As to limbs 3 and 4, whether there should be any moderation of general or specific deterrence in a given case will depend upon the nature and the severity of the impairment of functioning or the condition, whether at the time of offending or at the time of sentence. We are dealing with an acquired brain injury. I will make a very modest allowance here. The weight to be given to specific deterrence and general deterrence is far from eliminated, I can tell you. They are both still important purposes here. You can be deterred.
27 Finally, there is a pretty scant evidentiary basis to establish any increased custodial burden for you. Ms Scott describes what might or could happen in the future. There is a level of speculation in reaching such a view but again I am prepared to find in your favour, so I find some very modest increase in your custodial burden. So, I accept the Verdins submissions in the manner in which they have been placed before me by your counsel. Your counsel was, by the way, not suggesting they would lead to any sizeable reductions here, but that they should be given at least some weight. I will do so.
28 The fact is though, the condition which attracts these various reductions, plainly, is one which increases your future risk of offending, as is clear from the report of Ms Scott, and is conceded to be the position by your counsel. It brings into sharp focus the need to protect the community from you.
General remarks
29 I have to take into account the nature and the gravity of the offences. Your counsel concedes the seriousness of the offences. He states that the aggravated burglary and recklessly causing serious injury offences are inherently serious crimes. He is right, they are. Now, there have been many cases dealing with the manner of assessing the seriousness of the offence of aggravated burglary, and I am not going to go chapter and verse though cases such as Meyers [2012] 44 VR, as well as the more recent case of Bowden [2016] VSCA 283.
30 These were residential premises. You chose to enter them as a trespasser, and you did so in the early hours of the morning, armed with a knife. Plainly enough, you intended to steal drugs. Plainly enough, you had planned this offence. You also planned for the possibility of being disturbed. Hardly surprising, given the time of entry. You had the knife, you had the duct tape, the balaclava and, of course, you were at that address in the early hours of the morning. Your counsel raises the absence of other matters of aggravation. For instance, that you had no gun and you were there on your own, not part of some group attendance. Well, they are not matters in mitigation. Simply, those matters do not exist here. If they did, I would take them into account. What I have got to do is sentence you for the crimes you have committed, not for ones you have not committed, and there are ample matters of seriousness here in relation to the crimes you have committed. You were also, of course, on bail at the time.
31 Enough aggravated burglaries do not lead on to other offending. Well, this one did, and it was unmistakably serious offending. Upon entering the premises in your balaclava, you have then sought to use the duct tape. You have caused injury recklessly to one occupant, threatened and hence assaulted a female at knife point, threatened to inflict serious injury to Grant, and then actually recklessly caused serious injury to Grant and to the other man, Remfrey-Pettit . The injuries and the serious injuries were inflicted by a knife. This was just mayhem in this house. Other than with Grant, as I perceive it, you had no relationship with any of these people. All of them were assaulted by you.
32 I do accept that in the spectrum of serious injuries that can be sustained, and embraced by a serious injury charge, these were a long way removed from being the worst examples of serious injury. That will be no comfort to either of the victims who were seriously injured. However, we as judges, we do see catastrophic injures such as brain injuries, quadriplegia and the like. There has been sizeable impact here, as is conceded. This all so easily could have left you sitting in the dock of the Supreme Court. You start waving around a knife and the consequences can be dire by way of injury, serious injury or even death. This was not a serious injury caused in some indirect fashion; for instance, striking someone with a fist and then having the victim tumble to the ground. You had a knife, you used it, you used it with the requisite state of mind, though it was in the course of a struggle. The venue for the summary assault for the injury and for the two serious injuries was a private residence, a place where you had no business entering, a place where these people should have been safe but, of course, were not.
33 You have highly relevant criminal history before the courts.
34 Now, aggravated burglary is a very serious offence, as countless decisions from our Court of Appeal have spelt out over the last decade. It is an inherently dangerous crime which can escalate out of control. It did here, blossoming into a range of other serious criminal conduct. Recklessly causing serious injury is itself a serious criminal offence, one where you admit by your plea that you foresaw the probability of causing serious injury to another. And how could you not? You were wielding and waving a knife, doing that in a private residence that you had no business being within, doing all of this whilst on bail. Plainly, these are all serious offences. And as I have said, you have a prior criminal history with prior appearances for robbery, for recklessly causing serious injury, for recklessly causing injury, for intentionally causing injury and for assault.
35 Sentencing always involves the balancing of a number of purposes or principles. I have to take into account your prospects of rehabilitation. As I have said, I believe I can only be very guarded; but at least there are some prospects. That is better than none. I do take into account your relative youth as well. I give that some weight. If you were a 40-year-old man with a long history before the courts over 20 plus years, well of course I would downgrade your prospects virtually to zero. You are not. You are just 24, and you may well yet have the capacity to make changes in your life. Your father hopes you do, so does your friend, Mr Gonzalez, and also your partner, Ms Kolakowski. Well, so do I. Maybe you can yet change for the better. But there is no great cause for optimism here but hope springs eternal.
36 You are no youthful first offender. Yet again, you have offended seriously. So, I find that you have some prospects of rehabilitation but also a relatively high risk of future offending.
37 I must consider the need for specific deterrence, that is the need to deter you from committing crimes in the future. You were on bail at the time. You have a history before the courts for violence offences. You have had an inability, for whatever reason, to comply with very many court orders designed to avoid confinement. And even having been confined in a youth justice centre and then paroled, you have then subsequently re-offended (though not whilst on youth parole). The need for specific deterrence is very clear here, and that is so despite the Verdins moderation. I will try again to deter you from offending into the future. Community protection is also important here. Your acquired brain injury actually increases the risk of future offending, as is made plain in that report of Ms Scott.
38 I must protect the community from you.
39 I must also denounce your conduct and punish you justly and proportionately.
40 Quite aside from deterring you from offending, I have to deter others. So, general deterrence is an important consideration here and again, that is so despite the modest Verdins moderation. There is a real need to deter others from committing such serious offences as these.
Current sentencing practice
41 I pay regard to current sentencing practices. It is just one of the matters that a court must have regard to, not a controlling factor. I have looked at the relevant snapshots from the Sentencing Advisory Council, including snapshot 214 of 2018 for recklessly causing serious injury, and snapshot 211 from June 2018 for aggravated burglary. I have looked at the more up to date Sentencing Advisory Council online data. I have looked at the overviews of sentences in the Judicial College of Victoria manual dealing with recklessly causing serious injury, recklessly causing injury, and aggravated burglary. See 29.7.2.1&3 recklessly causing serious injury, 29.7.4.1 recklessly causing injury and 32.15.4.1 Aggravated Burglary.
42 This sort of material has inherent limitations.
43 Statistics do not disclose so much of the critical detail which might go some way to explain the particular sentence. They are numbers on a page. Nor are other cases precedents. Every crime is different and so too is every offender. What I have to do is sentence you for your crimes. They are undoubtedly serious, as is conceded.
44 Now, prison is always a disposition of last resort for any court. If there is any other option open to the court, then of course it must be selected. That is the law. Your counsel concedes that this offending can only be met with sizeable terms of imprisonment with a non-parole period being fixed, a new one. He is, yet again, right.
Totality
45 I pay regard to totality of sentence. I have looked at the effect of the sentences I will soon pronounce to ensure that it is commensurate with your overall criminality and not crushing upon you.
46 However, it seems to me that the inescapable consequence of committing a set of serious offences, including crimes of violence upon a number of different victims is a sizeable prison term. Your conduct leaves the court, really, with no alternative. I cannot just roll the sentences into each other. You were on bail at the time. There are here quite separate victims and serious offences committed upon them by you. There is a tight time frame, obviously, and I take that into account in providing for a level of concurrency. However, there is a need for quite tangible cumulation as between some of the sentences to mark out the separate serious crimes and separate serious impacts upon separate victims, especially those who were seriously injured or injured. I do take into account the fact that you have been in custody for a sizeable period already. I take into account the current sentence that you are serving, and I will be required to make orders spelling out the extent of cumulation upon the existing sentence as well as fixing a new single non-parole period.
Disposal Order
47 There is an application for a disposal order under the provisions of the Confiscations Act 1997. This relates to the black roll of tape that was found on the search of your premises. I am satisfied that the criteria for the making of the order under s.78 of the Confiscations Act is established here. I order forfeiture of the state of that property, and I direct that it be handled or managed in the way contemplated by that signed order.
48 All right. Now, I am about to pass the individual sentences upon you, and then I will need to make orders for cumulation as between the individual sentences. I will then need to make a direction as to how much of the sentence is cumulative upon your existing order, and then I will make an order as to a new single non-parole period. You will find this hard to follow, hard to understand. I will explain it very directly at the end of the process.
Sentence
49 On Charge 1, which is the charge of aggravated burglary I convict and sentence you to three years', nine months' imprisonment. That will be the base sentence.
50 On Charge 2, recklessly causing serious injury, to Mr Grant, I convict and sentence you to three and a half years' imprisonment.
51 On Charge 3, that is recklessly causing serious injury to Mr Remfrey-Pettit, again, I convict and sentence you to three and a half years' imprisonment.
52 On Charge 4, the charge of recklessly causing injury to Mr Thompson, I convict and sentence you to 15 months' imprisonment
53 On Charge 5, that is a threat to inflict serious injury, I convict and sentence you to nine months' imprisonment.
54 On the summary offence of assault with a weapon, you are convicted and sentenced to three months' imprisonment.
55 On the summary charge of committing and indictable offence on bail, I convict and sentenced you to seven days' imprisonment.
Cumulation
56 I direct then, that 17 months of the sentence imposed on Charge 2, 17 months of the sentence imposed on Charge 3, six months of the sentence imposed on Charge 4, two months of the sentence imposed on Charge 5, and one month of the sentence imposed on the summary assault with a weapon are to be served cumulatively upon the base sentence and upon each other. The seven‑day term imposed on the offence of offending on bail will be served concurrently.
57 As I say, this is hard for you to follow, but what this produces then is a total effective sentence of 88 months, or seven years, four months' imprisonment.
Cumulation upon existing sentence
58 Now, of course you are serving an existing sentence. Six years and 10 months of this sentence will be served cumulatively upon the sentence imposed at the Ringwood Magistrates' Court earlier this year. This will result in a global period of eight years and two months when regard is had to that order for cumulation upon your existing sentence.
New single Non-Parole Period
59 You have been undergoing that other sentence since 21 May of this year. Now, of course you get the benefit of the time that you have already served in relation to that period. I am not required to declare that period from 21 May until now. But I must, pursuant to s.14 of the Sentencing Act, fix a new single non-parole period. What is critical is that I make it clear when it is that the new single non-parole period commences. There are two ways of doing this, either backdating it to the date of the Magistrate's sentence or commencing it from today's date. Now, I am awake to the views expressed by Brooking J in the case of R v Rich(No 2) [2002] VSCA 0017. He took the strong view that uniformity was desirable and that the new single non-parole period should commence on the day it is actually fixed. I have adopted that approach in the past in a number of cases and I have then run into very sizeable problems with the interpretation of the order by the authorities. In any event, what is important is that there is certainty as to when it commences and I will provide that in these reasons.
New single non-parole period
60 I fix a new single non-parole period of five years and three months' imprisonment.
Commencement of new single non parole period
61 That new single non parole period though will commence on 21 May this year, the day upon which you were sentenced by the magistrate sitting out at Ringwood.
Section 18
62 I do also however need to make a declaration as to the time that you have served in custody on this matter, the matter that I am dealing with which was not reckoned at the time of the Magistrates' Court order. That is the period of 105 days' pre-sentence detention served on remand between your arrest date on 5 February and 21 May 2019, being the date when you were sentenced in the Magistrates' Court. So that period - you get credit for that as well. That is declared as having been served already under this sentence.
Section 6AAA
63 I have taken into account your guilty plea. If you had pleaded not guilty and been found guilty of these offences by a jury, I would have convicted and sentenced you to nine and a half years' imprisonment. I would have cumulated nine years upon your existing sentence and fixed a new single non-parole period of seven years three months. Just have a seat then for a moment. I will see if there is anything else I need to do.
64 MS CHIBERT: Your Honour, if I may. Apologies. Just in relation to the time served, myself and my friend, we calculated 112 days as opposed to 105.
65 HIS HONOUR: A hundred and twelve. Did I rely upon the original time, did I? I am sorry about that. Thanks for that. Let me just - sorry, how does that work? It has not gone up. How do we get to 112 days?
66 MS HODGE: That was just the additional seven days from the - - -
67 HIS HONOUR: But there is not an additional seven days. He is undergoing sentence.
68 MS CHIBERT: Your Honour, I must say this is the period that I was informed of by Mr May who did the original plea so I have been informed at 112. How he came to that - - -
69 HIS HONOUR: Well, he could only have come by that by - your client has been undergoing sentence since I last saw him.
70 MS CHIBERT: Yes.
71 HIS HONOUR: There is no PSD since I last saw him.
72 MS CHIBERT: Yes.
73 HIS HONOUR: The PSD that - I am looking at the Crown summary, page - the offender has served 105 days' pre-sentence detention, remanded in custody 5 February. And on 21 May, he got the sentence. So it is that period. That was not declared by the Magistrate. He has got to get it and that is why - - -
74 MS CHIBERT: I see.
75 HIS HONOUR: - - - why I am giving it to him.
76 MS CHIBERT: Certainly, Your Honour.
77 HIS HONOUR: He has not gone up another seven since because he has been undergoing - and 105 was the agreed - I know you did not do the plea, Ms Chibert. But I am just looking at the defence submissions. I think - let us have a look at them. Yes, the figure - I am looking at the defence submissions. The figure of 105 for his - today's pre-sentence detention is agreed. So - - -
78 MS CHIBERT: Certainly. I stand corrected, Your Honour.
79 HIS HONOUR: Yes, so it is just - you know, normally, you would be right. If he had not been undergoing sentence - if I was passing sentence and he had not been held for any other reason, of course it would be going up. But that is not the position. He has been held.
80 MS CHIBERT: Certainly, Your Honour.
81 HIS HONOUR: And that is why I have been required to fix the new single non-parole period. I do not need to declare what he served from May until now. He gets that coming his way anyway. But what I have got to make sure he gets is the 105 days, otherwise it is not credited to him at all. So that is why I have made the order I have made.
82 MS CHIBERT: Certainly, Your Honour.
83 HIS HONOUR: Let me just satisfy myself then - are there any other matters then that are arising or not?
84 MS HODGE: No, nothing, Your Honour.
85 HIS HONOUR: Do you each make a note of the actual sentences or not? I can go through them again if you want or - three years, nine months on Charge 1.
86 MS HODGE: Yes.
87 HIS HONOUR: Three and a half on each of the recklessly causing serious injuries. Fifteen months on the recklessly causing injury. Nine months on the threat to inflict serious injury. And then the summary of assault, three months. And the offending on bail, seven days. I cumulated the 17 months of the sentence imposed on Charge 2, 17 months of Charge 3, six months of Charge 4, two months of Charge 5, one month of the summary assault. So they are all cumulated. That brings me to a total effective sentence in relation to these matters of 88 months or seven years and four months. And I have then cumulated six years 10 months upon the sentence he is currently undergoing. So globally then, it is a total effective sentence of eight years and two months when regard is had to that cumulation order.
88 Then I fix the new single non-parole period. It is not commencing from today. It is five years, three months. But it is commencing from 21 May of this year. So he gets the credit for everything he has done between then and now and he gets the additional PSD taken off that 105 days. All right?
89 MS CHIBERT: Can I confirm that is five years and three months' non-parole period, Your Honour? Is that what Your Honour is - - -
90 HIS HONOUR: That is right, yes.
91 MS CHIBERT: Yes, certainly.
92 HIS HONOUR: Five years, three months but backdated.
93 MS CHIBERT: Yes.
94 HIS HONOUR: As I say, sometimes I have tried to commence it on the day that I am passing sentence but I have had prisoners coming back saying that the authorities are not giving any credit for anything that they have served. So I am approaching it in this way even though I know it runs counter to what BRooking J suggested a judge should do. But I have done what he suggested on two or three occasions. It has been a disaster with the way the authorities have viewed it. And the s.6AAA declaration - if he had pleaded not guilty, I would have convicted and sentenced him to nine and a half years' imprisonment. I would have cumulated nine years upon his existing sentence. I would have fixed a new single non-parole period of seven years and three months. I will sign that formal order. Look, I have signed that. I think once I have left the Bench - you will go down and see your client downstairs anyway?
95 MS CHIBERT: Yes.
96 HIS HONOUR: Yes, all right. Well, that completes the matter then. So Mr Craig can be removed. Thank you. And I will stand down. I have got some appeals. Yes.
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