Director of Public Prosecutions v Craig
[2015] VCC 700
•28 May 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-15-00124
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PETER CRAIG |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 May 2015 (Plea hearing) | |
DATE OF SENTENCE: | 28 May 2015 | |
CASE MAY BE CITED AS: | Director of Public Prosecutions v Craig | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 700 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Common law assault – criminal damage – burglary – arson
Legislation Cited: Crimes Act 1958; Sentencing Act 1991
Cases Cited:Boulton v R; Clements v R; Fitzgerald v R [2014] VSCA 342; R v Verdins; R v Buckley; R v Vo [2007] VSCA 102; Arthars v R; Plater v R [2013] VSCA 258; R v Mills [1998] 4 VR 235; Azzopardi v R (2011) 35 VR 43
Sentence: Six months imprisonment followed by a Community Correction Order for 2 years. 6AAA declaration – 12 months imprisonment followed by a Community Correction Order of 2 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms F Holmes | Solicitor for Office of Public Prosecutions |
| For the Accused | Mr M Langlios | Victoria Legal Aid |
HIS HONOUR:
1 Peter Craig, you have pleaded guilty to the following offences:
· Charge 1 – that you, at Rosebud in Victoria on 18 October 2014, assaulted Charlton Robert Craig.
· Charge 2 – that you, at Rosebud in Victoria on 18 October 2014, intentionally and without lawful excuse, damaged windows and external walls of the house belonging to Robert Koster, a car window belonging to Kwarnta Lewandrowski and a car window belonging to Charlton Robert Craig.
· Charge 3 – that you, at Rosebud in Victoria on 18 October 2014, entered as a trespasser, part of the building, namely the garage, attached to the residence at 24 Potton Avenue, Rosebud, with intent to commit an offence involving the intentional destruction without lawful excuse of property belonging to another in the building.
· Charge 4 – that you, at Rosebud in Victoria on 18 October 2014, intentionally and without lawful excuse, damaged by a fire, a house and a garage belonging to Robert Koster and personal items belonging to Lisa Rogan.
2 Charge 1, involving common law assault, carries a maximum penalty of five years’ imprisonment. Charge 2 involving criminal damage, is contrary to s197(1) of the Crimes Act 1958 and carries a maximum penalty of ten years’ imprisonment. Charge 3, involving burglary, is contrary to s76(1) of the Crimes Act 1958 and carries a maximum penalty of ten years’ imprisonment. Charge 4, involving arson, is contrary to s197(1) of the Crimes Act 1958 and carries a maximum penalty of 15 years’ imprisonment.
Criminal record
3 I was informed that you have no criminal record in Victoria but were convicted and fined $150 by the Adelaide Magistrates’ Court on 16 May 2011 in relation to the offence of “disorderly behaviour”. There was an earlier Children’s Court matter which I consider irrelevant.
Circumstances of the Offending
4 The Prosecution has prepared a written Summary of the circumstances surrounding the offending. Such Summary has been marked as an exhibit (Exhibit 1) and has been accepted by you and your Counsel as an appropriate representation of the offending. The important matters of such Summary are:
(a)You are the son of Charlton Craig, who has had an “off and on” relationship with Kwarnta Lewandrowski, who I shall refer to as “Lewandrowski”. At the time of the offending, the relationship between Charlton Craig and Lewandrowski was strained;
(b)You had only come to know your father about seven years prior to the subject offending;
(c)At the time of the offending, Lewandrowski was residing at 24 Potton Avenue, Rosebud, which is a three-bedroom single-storey home constructed from fibrocement and to which a single car garage abutted the house. Lewandrowski had been subletting a bedroom to a third party, Lisa Rogan, for a number of weeks. However, Rogan was in the process of moving out. Earlier that week, she had moved to her mother’s home and Lewandrowski had moved some of Rogan’s personal belongings and property into the garage at the premises;
(d)On Sunday, 18 October 2014 in the late afternoon, Charlton Craig visited Lewandrowski at the premises and at about that time, spoke to you by telephone. According to your father, you sounded “agitated” and he advised you not to come to the premises as it was not a “good idea”;
(e)Shortly before 7.00pm on that day, your father engaged in conversation with you via a text message, and at 7.20pm, you texted your father “On your street”;
(f)Your father waited behind the screen door of the front entry of the premises and observed you walk along the driveway up to the door. At that time, you insisted on coming inside but was refused entry, after which your father left the house to speak to you in the driveway;
(g)During that conversation, your father moved you further along the driveway away from the house and as he was doing so, you reached out with both hands and pushed your father, grabbed him by both shoulders and began wrestling with him, stating:
“If I can’t come in I’ll get aggressive.”
(h)Lewandrowski came out of the front of the premises but was told by your father to go back inside, after which your father managed to break free from you and followed Lewandrowski back inside, where the door was shut and locked;
(i)You attempted to gain entry by pulling on the door handle, after which you turned to the external wall area adjacent to the front door and commenced kicking the panelling, causing the panelling to crack and then break away;
(j)Your father and Lewandrowski then rang the police, after which your father opened the door and saw you continue to kick the wall. You then walked away from the house and when the police arrived, you were no longer present;
(k)Later that night, you were contacted by police requesting that you attend at Rosebud Police Station regarding the incident earlier that day. At that time, you were in another suburb;
(l)The call from the police agitated you, causing you to send a text message to your father calling him a dog and telling him to put police on his speed dial;
(m)At approximately 9.40pm, your father received a telephone call from you, abusing him and threatening to “fuck everything”. You also rang Lewandrowski’s telephone, in response to which she hung up, causing you to ring her back, threatening her that if she hung up again you would come back to the house;
(n)At approximately 11.20pm, your father and Lewandrowski were sitting in the front lounge room of the premises when you returned to the house with pieces of broken brick collected from a nearby park. When you got to the premises, you threw a piece of the brick through the front lounge room window, narrowly missing your father. After that, you went on a rampage using pieces of the broken brick to smash windows around the front of the premises, smashed windows on the vehicle owned by Lewandrowski which was parked on the front lawn, and the windows of your father’s vehicle which was parked in the driveway near the garage at the premises;
(o)During the rampage, you were yelling out to your father to come out of the house and speak to you;
(p)You then made your way to the rear of the house by climbing over a gate and entered the garage. Using a cigarette lighter, you deliberately set alight a pillowslip found in Lisa Rogan’s pile of clothing and used the lit pillowslip to set alight the balance of the clothing. You then left the garage with the fire burning and returned to smashing the house, breaking rear windows and external walls along the rear of the house;
(q)When smashing the rear of the house, you became aware that the fire had taken hold and was growing and engulfing the garage. At that time, you yelled out to your father, who was still in the building, to call the fire brigade, and your father and Lewandrowski called the fire brigade and the police;
(r)When emergency services arrived, they found the garage and an area of the house abutting the garage both on fire, and police located you in the rear yard and arrested you;
(s)As a result of the fire, the garage was totally destroyed and areas of the house, including the lounge room, kitchen, dining room and rear bedroom also suffered major fire damage. The entirety of the house suffered smoke damage and was rendered uninhabitable and beyond repair, with the value of such damage being $220,000;
(t)You were taken to the Rosebud Police Station, where you were interviewed, and during such interview, you confessed:
(i)to causing damage to the house by throwing bricks and kicking panels;
(ii)that you had deliberately lit the fire, believing that would cause your father to come out of the premises;
(iii)that you did not intend for the house to catch fire and that your actions were wrong;
(iv)that your behaviour was due to an ongoing relationship breakdown between you and your father, who you believed had used you and rejected you when it suited him, particularly when your father was together with Lewandrowski;
(v)you admitted to police that you had originally gone to the premises after your father had asked you if you had any cannabis and you re-attended in an “agitated state” after becoming aware, that is after receiving the telephone call from the police, that your father had reported you to the police for your earlier actions;
(vi)it is accepted that you did show some remorse for your actions and was co-operative at all times with the police.
5 You were remanded in custody from 19 October 2014 to 31 October 2014. The Prosecution accept that you indicated that you would plead guilty to the offences at the earliest possibility.
Victim Impact Statement
6 A Victim Impact Statement completed by Lewandrowski on 14 May 2015 was tendered (Exhibit 2). As fairly submitted by counsel for the Prosecution, some of the matters referred to in the Victim Impact Statement do not relate to the subject offending and should be ignored.
7 In the statement, she does describe how her sense of security has been lost and she has felt stressed, anxious, in shock, terrified, lost and confused as a result of the circumstances of the offending. She also described that she lost much in the house, including things that had particular value to her.
8 She also describes that as a result of the premises being uninhabitable, she initially had to move to a caravan park, and has moved many times in the last seven months and was currently living in short-term share accommodation.
Documents tendered by your Counsel
9 Your Counsel tendered the following documents:
(a) An Outline of Submissions (Exhibit A);
(b) Report from the neuropsychologist, Ms Jane Lofthouse, dated 1 April 2015 (Exhibit B);
(c) Report of the consultant psychiatrist, Dr Nicholas Owens, dated 28 April 2015 (Exhibit C).
Your background
10 On the basis of the various submissions made by your Counsel and the material tendered, I set out details of your personal circumstances, educational and vocational background.
11 You are now 23 years of age, having been born on 6 March 1992. You were 22 years old at the time of the subject offending. You were born and raised in South Australia, with your parents separating when you were three years old, causing your father to leave the family home. You continued to live with your mother in South Australia but ultimately relocated to Rosebud to live with your father for a period at the age of 16 years.
12 You had a very disrupted schooling, being expelled from a variety of schools in South Australia and also being sent to various schools catering for learning and behavioural problems. You assert that by the age of 14, the Education Department in South Australia had referred you to all of the speciality schools.
13 You left school around the age of 15 and were employed in some short-term unskilled jobs including labouring, stacking shop shelves and cleaning.
14 At the age of nine, you were diagnosed with Asperger’s Syndrome and was prescribed Seroquel, which you took regularly from that age until the age of 14. You resumed taking Seroquel at the age of 18 in Western Australia, when you were seeing a psychiatrist and a psychologist for about a year. At about that time, you commenced to abuse Seroquel.
15 You advised the psychiatrist, Dr Owens, that you had commenced hearing thoughts aloud in your head since the age of three and that symptom had worsened over the years and continues to bother you.
16 You started drinking alcohol regularly at the age of 15 and in your teenage years was drinking heavily, but in recent years, you have been drinking two cans once a week on average.
17
You commenced smoking cannabis when you were 15 and smoked it every day for several years but stopped about two to three years ago. You told
Dr Owens when he consulted with you on 10 April 2015, that over the years, you had used many illicit drugs including amphetamine, methamphetamine, cocaine, ecstasy and LSD, but had never used heroin. However, you did report to Dr Owens that you had not used drugs for several years.
18 Over the years that you were living with your mother, and on occasions your maternal grandmother, you described the relationship with your mother as poor, with significant physical and emotional abuse from both her and your grandmother.
19 On leaving home, you lived on the streets of Adelaide for about a year, before moving to Melbourne to join your father. At that stage, you lived with your father and Lewandrowski for about six to seven months, during which time you consider that you all apparently got on quite well. Your sister, Katie, arrived at your father’s home and thereafter there was difficulties with Lewandrowski, your father and your sister.
20 You then moved back to Perth, as already recorded, for a period, and worked in an IGA supermarket, after which you returned briefly to Adelaide and then back to Melbourne.
21 For the last three years, you have been living with your partner, Chantelle Bown, and her parents, and have worked doing some cleaning, as well as labouring, and a few other jobs for periods of six months or so.
22 The relationship with your partner, Chantelle, has produced two children, a two-year-old daughter and a four-month-old baby son. Seemingly, you have instructed your counsel that in June 2014, you and Chantelle separated, causing you to live with various friends. You note that during this time, you were only allowed in your father’s house when your daughter was with you.
23
I also note that you informed the neuropsychologist, Ms Jane Lofthouse, who examined you on 24 February and 30 March 2015, that you are presently on a Methadone Program as an opiate substitution. I also note that Ms Lofthouse had available various reports in relation to earlier treatment undergone by you for psychological problems. Such material included a psychological report from Ms Turnbull, seemingly dated in or about January 2008; a psychological report from a Dr Frank-Martin in or about June 2006; a discharge summary from a Ms Salamone in or about July 2003 and an assessment from a
Ms Harris in September 2001.
24 Such summaries paint a picture of psychological problems manifesting in disruptive behaviour, self-harming behaviours and aggressive behaviours from when you were 11 or 12.
The Report from Dr Nicholas Owens
25 After consulting with you on 10 April 2015, Dr Owens was of the opinion that you present with a range of symptoms suggestive of a psychotic illness, including such symptoms as auditory hallucinations of voices commenting on your experiences, as well as voices saying your own thoughts out loud. He considers that the most likely diagnosis is probably schizophrenia, but further time and testing would be necessary to confirm such diagnosis.
26 Further, he also considers that you suffer depressive symptoms, which fluctuate and have caused you to self-harm when you were younger.
27 Given the various problems that you have experienced as a child, Dr Owens comments that it is not surprising that you have continued to experience difficulties in working out problems with your relationships with family members.
28 In particular, Dr Owens states:
“The offending appears to have occurred in the context of anger triggered by his sense of rejection by his father, fuelled by a sense that his father’s partner Kwarnta had taken a dislike to Mr Craig and his sister and was turning his father’s emotional attention away from Mr Craig. He was also likely to have been slightly disinhibited by the alcohol and cannabis that he consumed in the hours before. Nonetheless he insists that he had no intention of causing so much damage to the house and greatly regretted his actions. He says that he did not intend to harm his father or Kwarnta by means of the fire, and did not expect the extent of a subsequent conflagration. It was not clear to what extent auditory hallucinations were contributory to his actions, saying that he had ‘noise’ inside his head, but also that his recollection is that his actions stem from anger as opposed to instruction from any hallucinated voice.”
(my emphasis).
29 Dr Owens was of the opinion that the risk of re-offending was “moderate” and that a sentence of imprisonment would weigh more heavily on you than other men of similar age given your vulnerabilities in areas of communication and social skills.
30 Dr Owens recommended that you gain access to ongoing psychiatric treatment by attending a general practitioner and seeking referral to an appropriate psychiatrist in conjunction with a psychologist.
The Report of Ms Jane Lofthouse
31 In her report, Ms Lofthouse reports that you informed her that you experienced poor self-control in response to anxiety, including a tendency to overreact, marked by experiencing agitation and finding it difficult to relax and stop worrying. After appropriate testing, Ms Lofthouse considered that the range of standardised tests of intellectual function for the most part fell in the average range and were commensurate with the predicted premorbid intellectual functioning.
32 Ultimately, Ms Lofthouse was of the opinion that both current and past reports suggest that you have mild to moderate intellectual deficits that may have been longstanding and permanent in nature and most likely impinge on your capacity for behavioural control.
33 Ms Lofthouse also considered that given your intellectual profile, you may well be able to benefit from engaging in rehabilitation programs as you demonstrate a capacity to learn or remember new information and deal with non-verbal material in the abstract manner. In particular, she states:
“He may benefit from the opportunity to discuss and develop new and more appropriate means of dealing with his anger and frustrations rather than reliance on impulsive reactions marked by violence. It should however be noted that these inappropriate patterns of response are longstanding and achievable rehabilitation goals should be developed in the short-term with the expectation of behavioural change occurring in the long term. Mr Craig denies any ongoing use of drugs and alcohol and reports that he is currently on a Methadone Program. Mr Craig will however benefit from ongoing treatment for issues related to his drug and alcohol use and this should be included as part of his rehabilitation.”
Matters in mitigation
34 Your counsel submitted the following matters should be considered in mitigation of sentence:
(a) Your early plea of guilty and the remorse you have expressed to the various doctors about your offending;
(b) That the offending should be seen in the light of the relationship which you sought to have with your father who, according to you, would only contact you when he was not involved with his partner. In particular, on the day of the offending, when you attended your father’s residence, it was at his behest to give some cannabis to him and when you arrived you were not let in the house and you were told to “fuck off” by your father and his partner. The situation became worse when later in the day, you realised your father had rung the police, which infuriated you and caused you to return back to the property. Although you were under the effect of cannabis at that time, it is not suggested that cannabis in any way was a causative factor in your behaviour;
(c)
Your counsel submits that based on the psychiatric and psychological evidence available to the Court, all six principles enunciated in the well-known case of R v Verdins & Ors [2007] VSCA 102 have application. In particular, your counsel submitted that based on the reports from
Dr Owens and Ms Lofthouse, it can be maintained that your psychological condition was a causative factor in the offending. In particular, your counsel relied on the opinion of Ms Lofthouse, whose opinion I have already recorded. Based on those principles, it was submitted that such impaired mental functioning:
(i) reduces the moral culpability of offending conduct, as distinct from your legal responsibility, and, accordingly, affects the punishment that is just in all the circumstances (with denunciation less likely to be a relevant sentencing objective);
(ii) has a bearing on the kind of sentence that is imposed, and the conditions in which it should be served;
(iii) means that general deterrence should be moderated or eliminated as a sentencing condition considering the nature and the severity of the symptoms exhibited by you and the effect of the condition on your mental capacity (whether at the time of the offending or at the date of your sentence or both);
(iv) means that specific deterrence should be moderated or eliminated as a sentencing consideration given the nature and the severity of the symptoms of the condition exhibited by you and the effect of the condition on your mental capacity (whether at the time of the offending or at the date of your sentence or both);
(v) means that the existence of such condition at the time of sentencing means that a given sentence will weigh more heavily upon you than it will on a person in normal health;
(vi) means that there is a serious risk of imprisonment having a significant adverse effect on your mental health.
35 Ultimately, your counsel submitted an appropriate sentencing disposition would be that you be ordered to undergo a Community Correction Order with various conditions, judicial monitoring and a hefty element of community work. Such submission was made on the basis of the relatively recent decision of Boulton v R; [2014] VSCA 342. In his written submissions, counsel also made reference that if the Court was not disposed to following such a course, then an appropriate disposition would be a small period of imprisonment followed by a Community Correction Order.
36 The Court arranged for you to be assessed by Community Corrections to determine your suitability for a Community Correction Order. Such assessment occurred on 15 May 2015 and in a report of the same date, you were assessed as suitable for such an order subject to the addition of further conditions involving community work, treatment and rehabilitation of drug issues, treatment and rehabilitation of alcohol issues, treatment and rehabilitation in relation to mental health issues, treatment and rehabilitation in relation to programs for reducing re-offending and general supervision.
37 It is noted that Community Correctional Services did assess you as being at a high risk of re-offending according to the Level of Service Risk Assessment Tool.
38 I was also referred to a reference from a Mr Geoff Stowers, who is the pastor of the Potter’s House Christian Fellowship Church, Frankston. He describes meeting you when you initiated enquiries to get assistance in changing your way of life in March 2015.
39 Mr Stowers describes you as being “honest” concerning your situation and you have made consistent efforts to get counselling and guidance and taken responsibility for your decision. Mr Stowers considers that he has seen change in the short time that he has been working with you and is confident, if you continue to seek counselling as you have done, there is hope and purpose for you. In particular, Mr Stowers notes that you have shown remorse and regret for past decisions made.
40 Counsel for the Prosecution conceded that limbs 5 and 6 of Verdins are applicable given the available evidence. However, it was not conceded that there was a basis for the operation of limbs 1 to 4 of Verdins given the state of the psychiatric evidence. It was further submitted that the cognitive disability is not extremely low.
41 Counsel for the Prosecution submitted that her instructions were that given the seriousness of the offending, a period of incarceration was warranted, followed perhaps by a Community Correction Order.
Conclusion
42 The offence of arson is a serious offence, as clearly evidenced by the maximum penalty of 15 years’ imprisonment. It must be borne in mind that as a result of you committing the arson, the premises were rendered uninhabitable, with the value of such damage being $220,000. Similarly, the offence of criminal damage and burglary are serious offences, as evidenced by each offence carrying a maximum penalty of 10 years’ imprisonment. Again, it must be borne in mind how frightening your actions of throwing rocks through windows and damaging the premises and nearby vehicles must have been to the occupants of the premises.
43 I accept that the purpose of lighting the fire was in the hope that that would cause your father to come out of the premises, as were the circumstances surrounding the causing of the criminal damage involving the throwing of bricks and kicking panels. I also accept that you did not intend the premises to catch alight and never had any intention to expose your father or Lewandrowski to the risk of being burnt in a fire. However, it must be borne in mind that you deliberately went about causing such damage to the motor vehicles and the premises, and deliberately lit the fire in the garage which ultimately spread to the house.
44 I have come to the view, based on the principles enunciated in Arthars v R; Plater v R [2013] VSCA 258, that the available psychiatric and psychological evidence does not establish a real connection between any mental impairment that you may suffer and the subject offending. In this respect, I again note the comments of Dr Owens that:
“It was not clear to what extent auditory hallucinations were contributing to his actions, save that he had ‘noise’ inside his head, but also that his recollection is that his actions stem from anger as opposed to instruction from any hallucinated voice.”
45 I am also conscious that you initially attended the premises at about 7.00pm on that day and later returned at about 11.20pm, following a telephone call to your father at 9.40pm, at which time you returned to the premises with pieces of broken brick collected from a nearby park. These courses of events occurred over a period of time and involved you making various telephone calls, making decisions, driving to various places, collecting rocks, and ultimately to confront your father. Accordingly, I consider that such circumstances do reflect more likely what you have said to Dr Owens, that is - you were angry with your father and his attitude to you.
46 You have formed a relationship with Chantelle and have two young children. It was not ultimately clear whether you still continue to live with her or have had some recent separation.
47 It is also to your credit that seemingly, although having a long history of exposure to illicit drugs, you have informed the medical practitioners that that has largely been given away – although I do note that you were using cannabis to some extent at the time of the offending.
48 In mitigation, I do accept that your plea of guilty was at the earliest possible time and that you have shown genuine remorse for your offending. Furthermore, when questioned by police, you made full and frank disclosures and co-operated with them at all times.
49
You were 21 at the time of the offending and much of what was said in
R v Mills[1998] 4 VR 235 and Azzopardi v R (2011) 35 VR 43 has application. In particular, I refer to paragraphs [34]-[35] of Azzopardi, wherein Redlich JA, with whom Coghlan AJA and Macaulay AJA agreed, stated:
“There are a number of considerations which underlie the general primacy of an offender’s youth as a sentencing consideration. Firstly, young offenders being immature are therefore ‘more prone to ill-considered or rash decisions’. They ‘may lack the degree of insight, judgment and self-control that is possessed by an adult’. They may not fully appreciate the nature, seriousness and consequences of their criminal conduct. Secondly, courts ‘recognise the potential for young offenders to be redeemed and rehabilitated’. This potential exists because young offenders are typically still in a stage of mental and emotional development and may be more open to influences designed to positively change their behaviour than adults who have established patterns of anti-social behaviour. No doubt because of this potential, it has been stated that the rehabilitation of young offenders, ‘is one of the great objectives of the criminal law’. The added emphasis for the purposes of sentencing on realisation of a young offender’s potential to be rehabilitated is further justified because of the community’s interest in such rehabilitation, not only at a theoretical level, but because the effective rehabilitation of a young offender protects the community from further offending. … .”
50 I refer to the guideline judgment given by the Court of Appeal in Boulton v R [2014] VSCA 342 pertaining to the operation of Community Correction Orders which have been available to Victorian courts since July 2012. As that Court stated, the Community Correction Order is a radical new sentencing option with a potential to transform sentencing in this State. Although a non-custodial order, such order has certain mandatory conditions laid down by the legislature, and a sentencing court can attach to a Community Correction Order a range of conditions which are variously “coercive, prohibitive, intrusive and rehabilitative”. As pointed out by the Court of Appeal, a Community Correction Order is a “flexible sentencing option allowing punitive and rehabilitative purposes to be served simultaneously”.
51 As the Court of Appeal has stated, s5(4C) of the Sentencing Act 1991 prohibits the imposition of a sentence of imprisonment unless the sentencing court has paid specific and careful attention to:
(a) The purposes of which sentence is to be imposed on the offender; and
(b) Whether that purpose can be achieved by a Community Correction Order to which one or more of the specified conditions is attached.
52 I also refer to Appendix 1 to the Court of Appeal Judgment which is headed “Community Correction Order: Guidelines of Sentencing Courts”. Pursuant to that document, it is necessary that I first assess the objective nature and gravity of the offence and moral culpability of the offender. As I have already recorded, I do consider the offences committed by you to be of a serious nature. Sentencing factors do include issues of denunciation, specific and general deterrence but also in the context that rehabilitation plays a significant role. I am then called upon to consider whether:
(a) The crimes, as so assessed, are so serious that nothing short of a sentence wholly comprised of an immediate term of imprisonment will suffice to justify the requirements of just punishment; or
(b) A Community Correction Order, either alone or in conjunction with a sentence of imprisonment, will satisfy the requirements of just punishment.
53 Notwithstanding your youth, I consider that such sentence should reflect some degree of denunciation, and contain elements of general deterrence and specific deterrence. I am also conscious that Dr Owens considered that your risk of re-offending was “moderate” whereas you were assessed to be a high risk of re-offending by Community Correctional Services. Ultimately, I have come to the view that it is appropriate you serve a period of imprisonment followed by a Community Correction Order. In coming to such view, I do accept that any period of imprisonment will weigh more heavily upon you than another person in normal health, given your psychological problems and furthermore, there is some risk of imprisonment having some adverse effect on your mental health.
54 In all the circumstances, I propose to sentence you to a period of six (6) months’ imprisonment, followed by a Community Correction Order for a period of two (2) years with certain conditions.
55 Please be upstanding.
56 In relation to Charge 1, you are convicted and fined the sum of $250.00.
57 In relation to Charges 2, 3 and 4, you are convicted of each offence and are sentenced to:
(i) An aggregate period of imprisonment of six (6) months; and
(ii) A Community Correction Order for a period of two (2) years after your release from prison.
58 Pursuant to s48D(3)(a) of the Sentencing Act 1991, you are to undergo assessment and treatment (including testing) for drug abuse and or dependency.
59 Pursuant to s48D(3)(e) of the Sentencing Act 1991, you are to undergo any mental health assessment and treatment that may include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility.
60 Pursuant to s48D(3)(f) of the Sentencing Act 1991, you are to undergo any program which addresses factors relating to your offending behaviour, including but not limited to anger management courses.
61 Pursuant to s48E of the Sentencing Act 1991, you are to be supervised, monitored and managed as directed by the Secretary to the Department of Justice.
62 I declare that you have served a period of 13 days by way of pre-sentence detention and such period of time is to be deducted administratively as time already served under this sentence.
63 Further, in relation to charges 3 and 4, I order that you pay the sum of $292,297.64 to the home insurer, Auto and General Services Pty Ltd.
64 Further, in relation to Charges 3 and 4, the Court orders that pursuant to s464ZF(2) of the Crimes Act 1958, that you undergo a forensic procedure for the taking of a scraping from the mouth and or blood samples for placement on the database. I must also inform you that at the time of request, if you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force, then that sample to be taken will be a blood sample and police may use reasonable force to enable that forensic procedure to be conducted.
65 Further in relation to Charge 4, pursuant to s 78(1) of the Confiscation Act 1997, the court orders that the property referred to in the Schedule be forfeited to the State, and the Court further directs that it be placed in the custody of the Chief Commissioner of Police and be held by him until 28 days from this date or the end of the appeal period, whichever is later, where it may be tested and/or analysed and then destroyed.
66 Save for your pleas of guilty, I would have sentenced you in Charge 1 to a fine of $500 and in relation to Charges 2, 3 and 4, to a period of imprisonment of twelve months followed by a Community Correction Order for at least two years.
67 HIS HONOUR: Can I just enquire from the Director, the sum I’ve ordered to be repaid to the home insurer, that is correct, $292,297.64?
68 Mr GODLEMAN: Yes, Your Honour.
69 HIS HONOUR: Yes, anything to say about the sentence?
70 MR LANGLIOS: No, thank you Your Honour.
71 MR GODLEMAN: No, Your Honour. I have a copy of the orders, though.
72 HIS HONOUR: Sorry, what was that?
73 MR GODLEMAN: I have a copy of the orders.
74 HIS HONOUR: Yes, by all means. I thought we signed orders. I don’t know, I think we did, yes. It is necessary that your client remain, I think all these documents have to be signed. So, don’t take the prisoner down at this stage, just wait.
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