Director of Public Prosecutions v Davidson
[2012] VCC 1467
•28 September 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not restricted Suitable for publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-01204 (Davidson)
Case No. CR-12-1205 (Szegedi)
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MICHAEL HOWARD DAVIDSON STEVE JAMES SZEGEDI |
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JUDGE: | HER HONOUR JUDGE MILLANE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 September 2012 | |
DATE OF SENTENCE: | 28 September 2012 | |
CASE MAY BE CITED AS: | DPP v Davidson & Anor | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1467 | |
REASONS FOR SENTENCE
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Catchwords: Aggravated Burglary, 3 Armed Robberies and False Imprisonment – drug-related home invasion in company – youthful offenders.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr S Devlin (Mr P Tobin at sentence) | Office of Public Prosecutions |
| For the Accused (Davidson) | Mr P Morrissey SC (Mr S Pica at sentence) | Pica Criminal Lawyers |
| For the Accused (Szegedi) | Mr A Halphen | Galbally & O’Bryan |
HER HONOUR:
Introduction
1 Please remain seated, as it will take some time for me to read my sentencing reasons, at the conclusion of which I will ask you each to stand for sentencing.
2 You have pleaded guilty to one charge of aggravated burglary, three charges of armed robbery, and one charge of false imprisonment each committed on 23 April 2012. The maximum penalty for aggravated burglary and armed robbery is 25 years’ imprisonment and for false imprisonment, 10 years’ imprisonment.
Antecedents
3 You, Mr Davidson, were just shy of your 22nd birthday when you committed these very serious offences. Your history in the criminal justice system (three appearances in the Children’s Court and two in the Magistrates’ Court) evidences elements of both dishonesty and violent offending. You have admitted the appearances and prior convictions recorded between October 2005 and April 2010, for offending involving three dishonesty offences, possession of a dangerous article and an article for criminal damage offences, a criminal damage offence, a driving offence and a reckless causing injury offence.
4 I was told that a robbery offence for which on 6 October 2006 without conviction you were placed on a 12 -month Probation Order, involved the theft of a mobile phone and money from another young person in Whitehorse Road, and I think it was Kew that I was told at the time. As part of this order you apparently underwent drug and alcohol treatment and participated in counselling.
5 I was also told that the reckless causing injury offence, for which on 9 January 2009, again without conviction, you were placed on a 12-month good behaviour bond, had involved a fight at a railway station where you claim that you intervened to protect a friend.
6 It appears that in April 2010 you were convicted on one charge of theft and sentenced to one month’s imprisonment, wholly suspended for an operational period of 18 months. I was told that you re-offended prior to the commission of the current offences and during the operational period of this wholly suspended sentence. Following a consolidated hearing, on 18 June 2012 a Magistrate imposed a total effective sentence of five months’ imprisonment. It understand that this included the restored sentence. Your appeal from this sentence is due to be heard in the County Court on 5 November 2012.
7 I note that a further matter is also outstanding, namely one charge of assault which is alleged to have occurred on 9 December 2011. I understand that no plea has been entered and that this matter is listed before a court, and I believe I was told it was on 8 October 2012.
8 You, Mr Szegedi, have a comparatively more serious criminal history. You have five appearances in the Children's Court between October 2005 and September 2007. The offending also encompasses, in the main dishonesty and violent offending, although you have a conviction for armed robbery, which together with other offences culminated in a period of detention from late 2007 in a Youth Justice Centre.
9 Offending subsequent to your release from detention, included graffiti offences for which with conviction you were fined in March 2009, and an unregistered firearm offence, namely a cat gun. This was also the source of an assault police charge for which offending without conviction you were fined in April 2010.
10 As submitted by your counsel there probably was a hiatus in your offending from April 2010. However, I was told that you have pleaded guilty to and you are due to be sentenced for drive while disqualified and refusing preliminary breath test offences in June 2011, and for graffiti-related offences committed on 29 January 2012.
The circumstances of the offending
11 The prosecution’s opening was read into transcript and tendered as an agreed statement of facts. I have read the depositional materials, which include the records of interview and witness statements.
12 I do not propose to repeat all of the matters outlined in the prosecution’s summary.
13 Suffice to say that on Monday, 23 April 2012 at approximately 12.30 am, you were both involved in the home invasion of a residential unit in East Ivanhoe (‘the unit’). At the time the unit was occupied by four individuals aged between 22 and 28: Brendan Semmens, Steven Mallis, Drew Apsoude and Luke Gipperich. You, Mr Davidson, were known to Mr Semmens from your student days at Balwyn High School.
14 As to Charge 1, Aggravated Burglary, I note the following matters.
15 You, Mr Szegedi, knocked on the front door. Mr Semmens answered your knock. He refused your request to stay the night and shut the door.
16 Soon afterwards the door was forced open and you each entered the unit brandishing a knife. One of the occupants described the knife produced by you, Mr Szegedi, as being a 10cm steak knife with a brown handle. Two of the occupants described the knife produced by you, Mr Davidson, as a 20-30 cm black handled knife.
17 As to Charges 2, 3 and 4, the armed robberies, I note the following matters.
18 Upon entry you both demanded property from three of the occupants whilst threatening to stab these men. The fourth occupant remained in his bedroom and overheard the conduct.
19 Three of the occupants were robbed of their mobile phones. In addition, you, Mr Szegedi, directed one occupant to unplug a 60 inch Plasma television set in the lounge room, belonging to Mr Semmens. You, Mr Davidson, then accompanied Mr Semmens to his bedroom where you took his computer.
20 Two of the other occupants were then forced at knife point to carry the television set to the corner of Irvine Road and The Boulevard where an unidentified third male was waiting in a green Mercedes 4WD. After loading the TV into this vehicle these two men were directed to return to the unit.
As to21 Charge 5, false imprisonment, I note the following matters.
22 The ordeal continued for Mr Semmens because, after being instructed by you, Mr Davidson, to get into the vehicle you drove him, your co-accused and the unidentified third man to the Westpac Bank in Whitehorse Road. During this journey Mr Semmens was threatened by the third party who was also armed with a knife.
23 For the purpose of sentencing you the conduct relating to the theft of this man's money forms part of my assessment of the gravity of the first of the armed robbery charges, namely Charge 2 on the indictment.
24 I was told that in response to your demand, Mr Szegedi, Mr Semmens provided his bankcard and PIN number and was then forced to withdraw $700.00 from the ATM. This sum was handed to you, Mr Szegedi, before you and your cohorts drove off.
25 At 10.16 am on 23 April 2012, a further $100.00 was withdrawn from the account using the same bankcard.
The arrests and interviews
26 Police executed a warrant at your Donvale premises, Mr Davidson, on the same day at 7.47 pm. They located two of the stolen mobile telephones, the Commonwealth Keycard belonging to Mr Semmens and $215.00 in cash. A green Mercedes 4WD was also located at the premises.
27 Police executed a warrant at your Hawthorn premises, Mr Szegedi, shortly thereafter, at 9.10 pm. They located the stolen television and the computer. They also located two knives concealed in a couch in the lounge room. You were arrested at 9.50 pm, on your return to your premises. You were carrying $135.70 in cash.
28 Having exercised your right not to comment, during your interview, Mr Davidson, you nevertheless denied entering the unit and being involved in the offending. Without further explanation of this, in response to the allegations made you also claimed to have been forced.
29 At interview, you, Mr Szegedi, exercised your right not to comment on the allegations made.
30 You have both remained in custody since your arrest. In your case, Mr Szegedi, save for two weeks on remand, this time appears to have been spent at the Port Phillip Prison in the Youth Unit where you have devoted considerable energy to bettering yourself and to programs designed to promote ongoing rehabilitation.
31 You, Mr Davidson, appear to have had a more difficult time, having at one stage been moved to the Fulham Prison to serve the sentence currently under Appeal. However, I was told that you are now held in protective custody at Port Phillip Prison because, for reasons not explained at hearing, you and your family have been threatened with violence over money. The circumstances currently affecting how you serve your sentence is one of a number of factors I have considered in formulating your sentence by allowing some reduction in the non-parole period.
32 The prosecution appears to have accepted that the pleas of guilty notified at or before the first committal mention on 13 July 2012 are to be treated as early pleas of guilty. You are both thereby entitled to a substantial sentencing discount because you have facilitated the course of justice and spared the witnesses the inconvenience of a contested trial and the community the not insignificant cost of a contested trial.
Impact on the victims
33 The occupants of the unit have not submitted victim impact statements. Leaving to one side for the moment Mr Semmens apparent failure to at first acknowledge that he also knew Mr Szegedi's identity, in view of the circumstances in which these offences occurred, it is likely that each of the occupants of the unit, including the young man who remained in his bedroom, found this episode extremely frightening.
The motive for the offences
34 As my discussion in due course of your personal circumstances will demonstrate you both have significant substance-abuse and dependency issues. It appears that you first met when students at Balwyn High School.
35 Your explanation for this offending, Mr Szegedi, is that, following the tragic death of a 19-year-old youth to whom you were something of a mentor, in the months preceding this offending you relapsed into significant substance-abuse. I was told that in the seven days preceding the offences you had binged on drugs and alcohol, you had not slept and on this occasion you went looking for drugs at the unit where one of the individuals living in the unit was known to you.
36 By your account Mr Davidson, there was no sensible explanation for the offending, rather you committed these offences with your co-accused, for financial gain.
37 For reasons on which I will expand during my discussion of your personal circumstances, I found your explanation of the circumstances in which you came to re-offend somewhat confused.
38 On the one hand, both you and, through her oral evidence, your mother, claim that, having in March 2012 completed a further period of inpatient rehabilitation, you were taking a combination of prescribed medications, namely the antipsychotic, Seroquel, the antidepressant, Lexapro, the synthetic opiate, suboxone and benzodiazapine medication. You, however, say that at the time you were abusing the Xanax medication, that is one of the benzodiazapines. Relying on the history reported by one of your treating doctors, Dr Kozminsky, this is not the first time whilst undergoing rehabilitation you have abused Xanax, a powerful drug both he and forensic psychiatrist, Dr Sullivan reported as being linked to impulsive and aggressive behaviour.
39 However, contrary to the matters recorded by Dr Sullivan, whose findings following his assessment on 18 September 2012 are discussed in greater detail shortly, during the course of the plea hearing, you instructed that when you offended you had not relapsed into heroin or alcohol abuse. However, as you are no doubt aware Dr Sullivan’s report shows that he clearly understood that before you offended you had relapsed and had committed these offences whilst under the influence of heroin, benzodiazapines, that is significant amounts of Xanax or Valium and alcohol.[1]
[1] Exhibit D2, Dr Sullivan’s report, para [22]
40 I should say this is not the only area of conflict between your instructions, your mother’s evidence and Dr Sullivan’s record, as he also understood that your only current medication in custody was methadone, at the time he thought it was 15mg, and noted that you had denied prescription of other medications. However, your mother believes, and at hearing you instructed your counsel that, having reduced your methadone dosage to 10mg daily, you have continued to be prescribed and currently take, Seroquel.
41 The evidence that green vegetable matter, likely cannabis, was found in your bedroom when police executed the warrant on 23 April 2012 does suggest that, notwithstanding your mother’s belief to the contrary, following your discharge from the Melbourne Clinic, you were probably accessing illicit substances at the same time as attempts were being made to manage your addiction in the community.
42 In view of these matters, I was left with some reservations about the accuracy and, particularly your account of the circumstances under which you offended and your motivation for this offending. Nevertheless, the short point to be made here is that your significant problems with poly-substance dependence, particularly abuse of drugs, licit and/or illicit, was probably a factor in your re-offending.
43 Moreover, as Dr Sullivan concluded, as a result of significant problems with polysubstance dependence, at the time of this offending it is likely that you were intoxicated and this intoxication impaired your judgment, your capacity to think calmly and clearly and to make rational choices. However, as your counsel confirmed at hearing, this does not mean that your long-standing addiction to drugs is mitigatory of this sentence. Rather, longstanding addiction is a background factor that must be given weight in sentencing you and, for that matter, in sentencing your co-accused.
Gravity
44 These offences evidence some level of planning and method in that you targeted the victims and specific property, you were armed and you had an armed accomplice to help secure your escape. The entry into the unit was violent, you threatened to stab three of the occupants and, if used, the knives had the potential to cause significant physical harm and, of course, there was also the threat with the knife to Mr Semmens by your unidentified co-offender.
45 I was not given the value of the mobile phones, the television set or of the computer. For the purpose of assessing the gravity of each of the armed robbery offences I have nevertheless allowed for the fact that valuable property was taken and, in respect to Charge 2, I have allowed for the theft of $800, to which the restitution orders made refer.
46 Allowing for the reported circumstances and the likely impact on each of the victims I have assessed the objective gravity of the aggravated burglary, each armed robbery and the false imprisonment offences as being at the lower to mid-point of scale for these types of offences.
Personal Circumstances – Davidson
47 I am going to deal with your personal circumstances separately, and I will start with you, Mr Davidson. These were summarised through your counsel’s oral and written submissions, your mother, Amanda Wynstanley’s oral evidence and in the various reports tendered.
48 Apart from Dr Sullivan’s report I had regard to the report of a treating psychiatrist, Dr Maloney dated 16 May 2012, the report of a Medical Officer, from The Melbourne Clinic Substance Disorders Program, Dr Barresi dated 19 March 2012 and a report from Dr Kozminsky who I have already mentioned who works from the Genesis Medical Centre, his report was dated 6 August 2012. I have placed particular reliance on Dr Sullivan’s report, not only due to it’s timing and detail, but because he appears to have considered a range of materials, including the medical reports tendered on your behalf.
49 I was told that you were born in Melbourne. You have one older sister. Your parents who separated when you were very young both attended Court. They remain very supportive, despite your long-standing drug abuse and significant history of relapse. They are evidently committed to supporting your rehabilitation on your release into the community.
50 Whilst your parents' early separation, issues arising from your father’s use of alcohol and some concern about tics and obsessive-compulsive symptoms, impacted your formative years, as Dr Sullivan noted, you have no history of gross childhood behavioural problems.
51 You completed your secondary schooling to Year 10 level at Balwyn High School, where until the age of 15 or 16 you apparently demonstrated an aptitude for physical sporting activities rather than academic work. After leaving school you attended a hospitality course at a TAFE college, followed by a pre-apprenticeship course in motor mechanics. You, however, still need to complete three units of the latter course and another year's work, having left your employer, Honda, in the third year of your apprenticeship due to conflict with a supervisor. According to your counsel, with the benefit of hindsight you now see this conflict as being a consequence of your attitude at a time when you were in the grip of drug abuse.
52 You have also held various labouring jobs and worked in your parent’s businesses. Notably, four weeks before this offending you were discharged from The Melbourne Clinic Addiction Service Program with a discharge care plan and an ongoing medication regime, and you were living with your father and working with him in his wine exporting business.
53 Other than noting that you were very anxious, your mother believed that, in the week before the commission of these offences, you were doing very well and she was, she said, in the process of organising further inpatient treatment in Queensland to help you cease opiate substitute therapy.
54 Regrettably, the level of support and the opportunities you have had to address what Dr Sullivan characterised as a severe polysubstance dependence involving opiates, benzodiazepines and alcohol, with some abuse of cannabis and other drugs, have not contained your addiction or led to sustained reformation. Moreover, the current offending indicates an escalation in the seriousness of your drug-related offending behaviour.
55 To summarise your substance abuse history then, you report consuming alcohol from age 12. Indeed, you told Dr Sullivan that a Naltrexone implant at age 18 or 19 had exacerbated your abuse of alcohol, which at times involved drinking up to a bottle of Vodka.
56 At age 12 you also commenced using up to ½ oz of cannabis weekly and, allowing for the material found that I have mentioned police found when they executed the warrant, cannabis probably remains until you were incarcerated a choice of drug.
57 From age 14 you smoked amphetamines. By 16 you had commenced injecting this drug and had experimented with a wide selection of other illicit drugs. You also report doctor shopping in the past to obtain a range of benzodiazepine medications. You told Dr Sullivan that none of this earlier drug use had produced adverse effects.
58 However, heroin, which you commenced abusing from age 16, is a powerful opiate on which you report you became dependant within one month.
59 There have been many attempts since age 16, in the main facilitated by your mother, to address any substance abuse issues underlying your ongoing offending. For instance, as I have already mentioned, you completed the earliest of these, the drug and alcohol treatment component of the Probation Order made in 2007 and, subsequently, in 2009, you sought your mother's assistance to engage in, I believe it was referred to as the One Step Program, run by Dr Gunzberg.
60 Your mother has clearly worked very hard to assist your rehabilitation and, as she told the court, on at least two occasions she has taken you to the Mornington Peninsula to detoxify in preparation for participation in various programs.
61 From June 2010 you were also treated by Dr Kozminsky. His report and your mother’s evidence indicate that until late 2011 your treatment included naltrexone implants and injections and opiate substitute therapy and you underwent some counselling, although this was a period when you also abused high-dose Xanax and relapsed into heroin abuse. Efforts by, particularly your mother, to discourage your ongoing association with a young heroin user were likewise unsuccessful.
62 Moreover, as I have already mentioned, there was further serious offending, which was not dealt with until after you re-offended in April 2012 and there remains the outstanding charge or allegation of an assault in December 2011.
63 Your admission to the Melbourne Clinic's inpatient programme in February 2012 was no doubt a further attempt to facilitate ongoing reformation and to demonstrate a capacity to sustain a drug-free and non-violent lifestyle.
64 It appears that following your discharge from the Melbourne Clinic, psychiatrist, Mr Maloney diagnosed a mixed anxiety disorder and a borderline personality disorder, in the treatment of which he prescribed Lexapro.
65 Notably, Dr Sullivan saw no clear direct causal association between your offending and symptoms of anxiety, which in his opinion could be a cause and/or a result of your substance issues. He also saw no evidence of a severe personality disorder, rather he considered that any personality issues arose predominantly from your substance-abuse disorder.
66 Notwithstanding your expressed desire to rehabilitate and the earnest efforts of your parents, I formed the view that the risk of relapse and drug-related re-offending remains high. However, I have accepted, as the prosecution did, the accuracy of Dr Sullivan's conclusion that your prognosis is: “guardedly optimistic".
67 Factors which allow for some optimism include:
· your parent's evident willingness to provide on your release ongoing financial, emotional and physical support which incorporates opportunities for gainful employment;
· your youth and the fact that you continue to express a desire to overcome your substance-abuse dependence;
· the reported salutary impact of your first period in adult custody, particularly given the current need for protective custody;
· the progress made since your incarceration in reducing the dosage of your opiate substitute medication; and
· your early plea of guilty which evidences some level of remorse, as does the general apology expressed through your counsel at the commencement of your plea in mitigation. I did not, however, detect evidence of victim empathy.
68 You and your co-accused have conceded that this offending calls for the imposition of an immediate and significant custodial term of imprisonment. However, despite any appropriate variations between the head sentences imposed, you both seek a clement approach and have urged reduction in the non-parole period to allow a longer opportunity for supervised rehabilitation under the auspices of the Adult Parole Board.
69 Before I sentence you, Mr Davidson, I am going to deal with Mr Szegdi's personal circumstances and background material.
Personal Circumstances – Szegedi
70 These were summarised in counsel’s oral submissions, the report of psychologist, Dr Kennedy dated 10 September 2012 and the evidence of the youth development officer at Port Phillip Prison, Anne Hooker, through whom a summary of the Prison’s Youth Offenders Program was tendered.
71 I also took into account the bundle of certificates relating to the many courses completed by you over the last five months, the letter of reference submitted by Ms Nettleton, a course facilitator with the Self-Help Addiction Resource Centre dated 17 September 2012, the testimonials submitted by Mr Farley and Ms Hickman, both of whom I believe attended Court, and your long letter to the court which contains a mixture of personal history, narrative explanation and an apology. At face value your letter indicates a significant level of maturation, insight and remorse.
72 You were also supported in court by your long-term partner, Ms Chapple and your parents with whom I was told you reconciled earlier this year, following their return to Melbourne.
73 I was also told that you have a younger sister and an older half brother and an older half sister from your parent’s earlier marriages.
74 As Dr Kennedy's evaluation revealed you function in a high range of intellectual abilities.
75 I was told that your formative years were unsettled and it seems that your parents' poor financial circumstances dictated your move from Trinity Grammar, where you were studying on a half scholarship, to Balwyn High School; a move we now know brought you into contact with a cohort that included your co-accused.
76 You told Dr Kennedy that alcohol had been a significant problem between the ages of 13 and 17 and that, after your parents relocated firstly to the Mornington Peninsula and then to Queensland, you failed to complete Year 9 and you were homeless and abusing alcohol. In fact you remained in Victoria. The very supportive letter from Ms Nettleton, among other things, tells us that there was also a three-year period during which you lived with and were supported by her family.
77 Allowing for the material before me, I have accepted that from about age 18 you made significant progress in establishing a stable and productive lifestyle. For instance, I was told that you completed a painting apprenticeship and by mid-2010 you commenced living with your long-term girlfriend, Ms Chapple who was and is a law-abiding member of the community. She clearly remains a strong support.
78 From 2010 you set about establishing your own domestic painting business "Riversdale Painting", a profitable venture in which you employed two other workers. During this period of prosperity I was told you were also able to pay the deposit on the purchase of an apartment in which you were living with Ms Chapple at the time of this offending.
79 You have accepted responsibility for the very poor choices made by you along the way. The driving and drink-driving offences, for which you are due to be sentenced shortly, nevertheless indicate some ongoing problem with alcohol even before the unsettling events of 2012.
80 However, leaving to one side for the moment these outstanding matters, the trigger for your relapse into alcohol abuse and eventually drug abuse was likely the guilt and grief you experienced following the train surfing death of your 19-year-old friend, who had been introduced to graffiti by you. In all the circumstances, I think it reasonable to accept that this tragic event precipitated treatment for depression, namely prescription of antidepressant medication and, as Dr Kennedy noted, self-medication with substances.
81 At the date of his evaluation Dr Kennedy was of the view that an adjustment disorder secondary to the loss of your friend had resolved and that your substance-abuse and dependency disorders were in remission.
82 Dr Kennedy believes that, with substance-abuse counselling over a 1 to 2 year period, including psychological assistance to address underlying personality issues, your prognosis is good. From the material before me I am inclined to agree with his prognosis and I have accepted that, on release should you receive this level of assistance, the likely risk of you relapsing into substance-abuse and related offending is much reduced.
83 This does not mean that you are not vulnerable to substance-abuse in the future. You are, however, a young man who has the intellect, ability and commitment to improve all areas of your life.
84 Ms Hooker's evidence of your dedication to the Port Phillip Prison Young Offenders Program and the leadership that you have shown in this program, not to forget the many prison-based courses you have completed in the last five months, indicates that, unlike so many youthful offenders you have the potential and the wherewithal to address your problems.
85 To summarise then, the factors on which you rely to justify a reduction in the non-parole period include:
· your early plea of guilty and the strong evidence of remorse;
· your youth and your evident capacity to establish an offence-free lifestyle in the past;
· Dr Kennedy's favourable prognosis;
· the evidence of your high intellectual functioning and your evident capacity to pursue your goal of completing VCE studies as a precursor to pursuing a career in engineering; and
· your long-standing and stable relationship, as well as the recent reconciliation with your parents, which evidently will provide you with more support in the future.
Sentencing Principles
86 Whilst conceding that the community has a strong interest in the rehabilitation of youthful offenders, the prosecution, correctly in my view, submitted that, quite apart from strongly denouncing this offending, in this instance, general and specific deterrence remain important sentencing considerations.
87 The prosecution submitted that the sentencing range for you, Mr Davidson, fell between three and five years’ imprisonment, with a minimum of between two and four years’ imprisonment. For you, Mr Szegedi, this was said to be between four and five years’ imprisonment with a minimum of between 2.5 and 3.5 years’ imprisonment. The differential in the sentencing ranges, which appears to have been accepted by your counsel, Mr Szegedi, as being appropriate, reflects your prior conviction for armed robbery, one of the offences for which you served a period of detention in a Youth Justice Centre.
88 However, for the purpose of sentencing there is also a disparity, in my view, between you and your co-accused due to the progress made by you in custody and your arguably better prospects of reformation at least in the short term.
89 To determine the appropriate range for sentencing in respect to particularly the aggravated burglary and the armed robbery offences I have also taken into account the sentencing snapshot for these offences covering the period 2006 to 2011 and published in June 2012. During this period 740 people were sentenced for aggravated burglary and 943 were sentenced for armed robbery. In respect to aggravated burglary, imprisonment terms ranged from three months to 12 years while the median sentence of imprisonment was two years, the most common length of imprisonment imposed was two years to less than three years and the average length of imprisonment imposed was from one year and 11 months to 2 years and 10 months. Where eligible to have a non-parole period fixed the snapshot indicates that the median length of the non-parole period was one year and six months and the most common non-parole period imposed was one year to less than two years.
90 In respect to armed robbery, the median length of imprisonment was for three years, the most common length of imprisonment imposed was two years and the average length of imprisonment imposed for three years and two months. Where eligible to have a non-parole period fixed the Snapshot indicates that the median length of the non-parole period fixed was two years and the most common non-parole period imposed was one year.
91 Obviously, today, your sentences have been shaped by your individual circumstances, the circumstances of the offending, the parity principle and, because of the multiple offences, some allowance for cumulation and the principles of totality I might add, but I will explain that shortly.
92 This sentence must take account, or both sentences, the prevalence of drug-related burglary and armed robbery offences. The aggravated burglary offence is a serious example of this kind of offending because it involved a violent invasion in company of a residential unit. Similar considerations apply to the armed robbery and false imprisonment offences.
93 In all, the sentences must punish you both as well as send a very strong deterrent message to you, your cohorts and like-minded individuals. To the extent that this is possible the sentences should also act to protect the community from individuals, who despite opportunities in the past, have relapsed into substance-abuse and a related criminal lifestyle.
94 As I have already mentioned, in view of the multiple and different offences, cumulation is justified, although I have moderated this to avoid disproportionate sentences.
95 I have been satisfied that a reduction in the non-parole period imposed for each of you is warranted, albeit a lesser reduction in proportion to your head sentence, Mr Davidson, due to the intractability of your addiction and criminal behaviour in the face of significant interventions. In your case, Mr Szegedi, the differential is greater to permit an earlier and longer opportunity to re-integrate into the community under the supervision of the Adult Parole Board.
Sentence
96 I will start with you, Mr Davidson. Could you please stand?
97 On Charge 1, aggravated burglary you are convicted and sentenced to 22 months' imprisonment. For the purpose of your sentence I treat this as the base sentence.
98 On Charge 2, armed robbery you are convicted and sentenced to 20 months' imprisonment.
99 On Charge 3, armed robbery you are convicted and sentenced to 15 months' imprisonment.
100 On Charge 4, another armed robbery you are convicted and sentenced to 15 months' imprisonment.
101 On Charge 5, the false imprisonment charge, you are convicted and sentenced to 18 months' imprisonment.
102 I direct that 10 months of the sentence imposed on Charge 2, five months of each of the sentences imposed on Charges 3 and 4 and six months of the sentence imposed on Charge 5 be served cumulatively on the sentence imposed on Charge 1. The sentences are otherwise concurrent. I will go through those figures again counsel if you have missed it.
103 COUNSEL 1: Thank you Your Honour.
104 HER HONOUR: Do you want me to go through that quickly?
105 COUNSEL 3: Just need the last count Your Honour.
106 COUNSEL 1: Just in regards to the cumulation would assist (indistinct).
107 HER HONOUR: The cumulation. 10 months of the sentence imposed on Charge 2, five months of each of the sentences imposed on Charges 3 and 4, so that is another ten months, and six months of Charge 5 are sentenced.
108 MR PICA: Sorry Your Honour, we didn't hear what the actual base, whether Your Honour said 18 or eight for Count 5. Sorry, what the actual sentence for Count 5 was, 18 or eight.
109 HER HONOUR: All right, I will go through each of them. Charge 1, I will just give you the numbers. Charge 1 is 22 months and that is the base sentence. Charge 2, the first of the armed robberies, that is Charge 2, 20 months. Charge 3 and 4, 15 months each. Charge 5, 18 months.
110 MR PICA: Thank you Your Honour.
111 HER HONOUR: Charge - then there is five months of - sorry, ten months of Charge 2 is cumulative, five months each of Charges 3 and 4 is cumulative, and six months of Charge 5 is cumulative, and the sentences obviously are otherwise concurrent.
112 MR PICA: Thank you.
113 HER HONOUR: So cumulative on each other - on the first sentence and on each other, Charge 1, and on each other. The total effective sentence is four years imprisonment, was that clear counsel what I was said about the - - -
114 MR PICA: Yes, the only difficulty was that when Your Honour announced sentence on Count 5 we couldn't hear whether it was 18 or 8, that was the only problem we had.
115 HER HONOUR: All right, well the sentences are cumulative on Charge 1 and on each other, you have no trouble with that.
116 MR PICA: No trouble at all.
117 HER HONOUR: The total effective sentence is four years imprisonment, and you better do the addition just so that we are all (indistinct) on that, with a non-parole period of two years and two months.
118 MR PICA: Thank you Your Honour.
119 HER HONOUR: Now I need an indication of the pre-sentence detention for this young man.
120 MR PICA: 158, not including today as we all understand it.
121 HER HONOUR: All right, because it was 155 on Monday, I just wanted confirmation.
122 Pursuant to s18(4) of the Sentencing Act I declare that the period of 158 days is to be reckoned as time already served under this sentence, and I direct that the fact of this declaration and its details be recorded in the records of the court.
123 Pursuant to s6AAA of the Sentencing Act I indicate that but for your plea of guilty a sentence of 5 years and 4 months’ imprisonment with a non-parole period of 3 years and 6 months’ imprisonment would have been imposed.
124 Now you may take a seat whilst I address Mr Szegedi, Mr Davidson.
125 Mr Szegedi, please stand.
126 On Charge 1, aggravated burglary, you are convicted and sentenced to 22 months' imprisonment. For the purpose of your sentence I treat this as the base sentence also.
127 On Charge 2, armed robbery you are convicted and sentenced to 22 months’ imprisonment.
128 On Charge 3, another armed robbery you are convicted and sentenced to 16 months' imprisonment.
129 On Charge 4, another armed robbery you are convicted and sentenced to 16 months' imprisonment.
130 On Charge 5, false imprisonment, you are convicted and sentenced to 18 months' imprisonment.
131 I direct that 11 months of the sentence imposed on Charge 2, and six months of each of the sentences imposed on Charges 3, 4 and 5 be served cumulatively on the sentence imposed on Charge 1. The sentences are cumulative on Charge 1 and on each other.
132 The total effective sentence is 4 years and 3 months' imprisonment, with a non-parole period of 2 years and 2 months'.
133 I assume it is the same period of pre-sentence detention?
134 COUNSEL: Yes Your Honour.
135 Pursuant to s18(4) of the Sentencing Act I declare that the period of 158 days is to be reckoned as time already served under this sentence, and I direct that the fact of this declaration and its details be recorded in the records of the Court.
136 Pursuant to s6AAA of the Sentencing Act I indicate that but for your plea of guilty a sentence of 5 years and 8 months’ imprisonment with a non-parole period of 3 years and 9 months’ imprisonment would have been imposed.
137 At the plea hearing, pursuant to s.464ZF of the Crimes Act 1958, the prosecution sought orders for the taking and retention of forensic samples. I have acceded to their application, and in doing so I have taken into account the seriousness of the circumstances of the offending, the prior convictions, I do not think you had a prior conviction Mr Szegedi but in fact your appearances are noteworthy. The fact that the applications were not opposed and the interest the public has in these samples and I have already signed those orders.
138 I must caution each of you that a member of the police force may use reasonable force to enable those procedures to be conducted.
139 Disposal orders were also sought and the making of those orders was not opposed. I have made those orders.
140 I have also made the agreed restitution orders which were restitution in the sum of $400, and made against each of you in respect of the $800 that was taken.
141 Counsel, are there any other matters I need to cover or clarify arising out of all those matters?
142 COUNSEL: No Your Honour.
143 HER HONOUR: Could you please remove Mr Szegedi and Mr Davidson? Thank you for your assistance today, counsel. Please adjourn the court.
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