Director of Public Prosecutions v Dewitte
[2020] VCC 1628
•9 October 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case Nos. CR-20-00362 and CR-20-00364
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| STUART IAN CHARLES DEWITTE and TAMMY LOUISE INNES |
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JUDGE: | HIS HONOUR JUDGE D SEXTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 August 2020, 23 September 2020 | |
DATE OF SENTENCE: | 9 October 2020 | |
CASE MAY BE CITED AS: | DPP v Dewitte and Anor | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1628 | |
REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited:Hogarth v The Queen [2012] 37 VR 658; R v Verdins (2007) 16 VR 269; The Queen v McKee and Brooks [2003] 138 A Crim R 88; Bugmy v The Queen [2013] 249 CLR 571; DPP v Drake [2019] VSCA 293; Hamid v The Queen [2019] VSCA 5; Markovic v The Queen [2010] 30 VR 589; Piacentino v The Queen [2019] VSCA 153
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms H. Baxter Ms J. McDonnell | Solicitor for the Office of Public Prosecutions |
| For the Accused Dewitte | Mr R. Bhattacharya | Farrelly Legal |
| For the Accused Innes | Ms G. Davis | Law and Advocacy Centre for Women |
HIS HONOUR:
Introduction
1 Stuart Ian Charles Dewitte and Tammy Louise Innes, you have each pleaded guilty to an Indictment containing a total of six charges.
2 Mr Dewitte, you have pleaded guilty to the following charges:
· Charge 2 - aggravated burglary, which carries a maximum penalty of 25 years’ imprisonment or 3000 penalty units;
· Charge 3 - false imprisonment, which carries a maximum penalty of 10 years’ imprisonment or 1200 penalty units;
· Charge 4 - common law assault, which carries a maximum penalty of 5 years’ imprisonment or 600 penalty units; and
· Charge 6 - cultivation of a narcotic plant, namely cannabis, which carries a maximum penalty of 12 months’ imprisonment or 20 penalty units.
3 Ms Innes, you have pleaded guilty to the following charges:
· Charge 1 - aggravated burglary, which carries a maximum penalty of 25 years’ imprisonment or 3000 penalty units;
· Charge 3 - false imprisonment, which carries a maximum penalty of 10 years’ imprisonment or 1200 penalty units;
· Charge 4 - common law assault, which carries a maximum penalty of 5 years’ imprisonment or 600 penalty units; and
· Charge 5 - theft, which carries a maximum penalty of 10 years’ imprisonment or 1200 penalty units.
4 You have each also admitted your criminal history.
Offending
5 The circumstances of your offending were set out in a Summary of Prosecution Opening dated 29 April 2020, tendered at your plea hearing and marked Exhibit A. That document contains the factual basis of the offending for which you will now be sentenced.
6 Your offending can be briefly summarised.
7 Your offending took place in the early hours of Friday, 29 March 2019. At the time of the offending, you, Mr Dewitte, were aged 27, and you, Ms Innes, were aged 25. You lived together at an address in Dennington, just west of Warrnambool in Victoria. Your victim was Mr Kenneth Smith, who lived on his own in the nearby town of Kirkstall. At the time of the offending, Mr Smith was aged 67. He was a man with considerable fragility, suffering from diabetes, a brain tumour, and having two prolapsed discs in his back.
8 Just after midnight on Friday, 29 March 2019, you, Ms Innes, knocked on the door of Mr Smith’s home. He was home alone at the time. When Mr Smith opened the door, you pushed your way past him into the house. Your conduct in this regard, Ms Innes, forms the basis of Charge 1 on the Indictment, aggravated burglary. Through your plea of guilty, you have admitted entering the property as a trespasser with an intention to assault, either knowing or being reckless as to whether or not a person was then present. Whilst Mr Smith did not initially recognise you, soon after he recalled that you were “Mick Cain’s grand-daughter”. You, Ms Innes, made your way inside the house and told Mr Smith to sit down.
9 About five minutes later, you, Mr Dewitte, entered the house carrying a large cordless nail gun. Your conduct in this regard forms the basis of Charge 2 on the Indictment, aggravated burglary. Through your plea of guilty, you have acknowledged entering Mr Smith’s home as a trespasser with an intention to assault, whilst having with you an offensive weapon, namely the nail gun. It is not alleged by the prosecution that you, Ms Innes, were aware of the nail gun prior to Mr Dewitte entering the house with it.
10 Upon you both entering Mr Smith’s home essentially in the middle of the night, you both terrorised him for in excess of an hour. Ms Innes, you grabbed two knives from the knife block in the kitchen and started waving them around. You, Mr Dewitte, then made multiple threats to Mr Smith by threatening to nail him to the table or wall, as well as threatening to cut off his fingers and toes. Whilst making these threats, you walked up to Mr Smith and stood over him. In the context of making these threats, you, Mr Dewitte, discharged the nail gun on a number of occasions inside the premises, in an attempt to frighten and intimidate the victim.
11 Ms Innes, at one point you grabbed Mr Smith by his left arm and twisted it behind his back, causing Mr Smith to think that the two of you were going to cut his fingers off. You, Mr Dewitte, then came at Mr Smith and held his right hand down on the kitchen table with one hand, whilst holding the nail gun in your other hand, swinging it in a threatening motion whilst swearing and screaming, and threatening Mr Smith. Whilst Mr Dewitte was doing this, you, Ms Innes, began thrusting the knife between Mr Smith’s fingers as his hand was held down on the kitchen table. Whilst you did this several times, you did not actually cut Mr Smith.
12 Whilst this was happening, you both screamed threats that you would cut Mr Smith’s fingers and toes off and made demands for money and drugs. By this stage, Mr Smith thought he was going to die, and started praying.
13 Minutes later, you, Ms Innes, found a plastic container that had approximately $150 cash in it, which you took. A short time later, when Mr Smith went to stand up, you, Ms Innes, began to physically assault Mr Smith with your arm by swinging your hand and forearm at least 10 times back and forth. Your swinging forearm and backhand struck both the left and right sides of Mr Smith’s head. The force of one of the blows caused his false teeth, both upper and lower, to fly out of his mouth and onto the floor. These actions caused bruising, which was observed when Mr Smith later attended upon a doctor at the Warrnambool Clinic.
14 After terrorising Mr Smith for over an hour in the manner I have described, you, Mr Dewitte, demanded $1,000 cash, and stated that you would then leave the house. Before leaving, you, Ms Innes, stole a number of items in addition to the $150 cash to which I have already referred: an Apple iPhone, an Apple iPad, an American Express card, a Westpac bankcard, $130 cash, and a Dyson vacuum cleaner.
15 Upon leaving, you, Mr Dewitte, threatened Mr Smith that if he contacted the police you would return and nail him to the floor and burn the house down. You, Ms Innes, then warned Mr Smith not to move for 10 minutes.
16 Mr Smith waited for 10 minutes after you departed, before calling police from an old phone he located and plugged in. That 000 call requesting police assistance was made at 2.26am, in excess of two hours after your arrival at Mr Smith’s home. Local police who were then on patrol attended at Mr Smith’s home a short time later.
17 Following subsequent police investigation of the crime scene, police attended at your property in Dennington on Friday morning, 5 April 2019. During a search of your property, police located a SIM card connected to Mr Smith’s stolen phone, a nail gun with nails located in a utility box in your vehicle, Mr Dewitte, and six cannabis plants and an amount of dried cannabis located in the rear yard of the premises.
18 You were both arrested and transported to Warrnambool Police Station, where you were both subsequently interviewed, making “no comment” interviews, with the exception of you, Mr Dewitte, admitting cultivating the cannabis plants that had been located.
19 You, Ms Innes, were implicated through Mr Smith’s recognition of you, together with fingerprint evidence. You, Mr Dewitte, were implicated through identification evidence, together with forensic evidence in relation to the nail gun and nails located in a utility box in your vehicle.
20 You were both remanded in custody and have been in custody since your date of arrest, 5 April 2019.
Impact on Victim
21 Your victim, Mr Smith, completed a Victim Impact Statement on 6 August 2019, which was tendered at your plea hearing and marked Exhibit B. That statement was read out at your plea hearing.
22 In his statement, Mr Smith says that the property was his parents’ property, which he had lived in from when he was young, and he had worked hard to maintain the farm, which is very precious to him. He recalled being very scared for both his life and that of his dog, Benji, during the incident, and he recalls being in shock after you both left the house, as he was scared about contacting the police because of the threats that you had made to him.
23 Mr Smith describes that since the attack he has not been able to face going back home, a place where he had lived on his own that is isolated from neighbouring farms. Whilst he has relocated to Warrnambool, Mr Smith’s dog has been unable to settle and has therefore remained at the property, requiring Mr Smith to regularly visit the farm with the help of friends, to feed the dog.
24 Mr Smith describes struggling with anxiety, depression and night terrors since the attack, and described his physical health having been impacted by the attack because his anxiety triggers asthma attacks in the middle of the night, affecting his sleep. His hand and body tremors continue during the day and night. As at August 2019, some months after the incident, Mr Smith described still waiting on a replacement for his false teeth, which has impacted upon his eating and self-esteem.
25 Mr Smith described being an active member of the local community prior to the incident, but since the incident he has been too physically and emotionally unwell to continue with his community activities, which has impacted upon his emotional wellbeing and sense of isolation. He referred to having regular counselling sessions with a psychologist, together with prescription of medication since the attack, and the assistance of a psychiatrist.
26 Mr Smith concludes:
“So the future for me is very uncertain. Will I be able to make the changes to my home to make it safe and secure enough? Will I be able to move home or will I have to think about alternative living arrangements? Will I ever be well enough to live independently again?”
27 As Mr Smith eloquently describes, your offending has had significant adverse impacts upon him. Victim Impact Statements are an important means through which victims of crime can meaningfully participate in the sentencing process, by informing the Court of the often catastrophic and long-lasting impacts of crimes on them. In formulating an appropriate sentence in your case, I have taken into consideration, as one of the sentencing factors, the Victim Impact Statement of Mr Smith.
Nature and Gravity of the Offending
28 Collectively, your conduct in relation to Mr Smith was outrageous. You essentially invaded the sanctity of your isolated, frail and vulnerable victim’s home in the middle of the night, violently terrorising him for over an hour.
29 Turning firstly to the aggravated burglary. The offence of aggravated burglary is a serious violation of the sanctity of the home. Crimes such as these strike directly at the heart of people’s domestic security and their capacity to feel safe in their homes. The fact that this took place in the middle of the night, at an isolated property where your victim was alone and vulnerable, accentuates the seriousness of this crime.
30 You, Ms Innes, have indicated that you entered Mr Smith’s home in order to confront him about an alleged sexual assault committed on you when you were young. There is no evidence before me as to the veracity of such a notion. You essentially committed this serious crime on the basis of perceived wrongdoing on the part of Mr Smith. Your entry to Mr Smith’s property as a trespasser in these circumstances, which could be described as vigilante conduct, had no legal basis whatsoever. Mr Dewitte, a few minutes later, you also entered the property as a trespasser, with an intention to assault, armed with a nail gun. Collectively, therefore, this was essentially a confrontational aggravated burglary, the defining characteristic of which has been described as entry in the context of a grievance against someone in the premises.[1]
[1]Hogarth v The Queen [2012] 37 VR 658 at [54]
31 It seems clear, Ms Innes, that you knew your victim and where he lived, given your stated motivation for the offending. Clearly, therefore, this was not a spontaneous or random offence. However, given that both of you have stated that you had used methamphetamine in the period leading up to the offending, and the fact that you, Mr Dewitte, did not enter at the same time as Ms Innes, and appear to have entered armed with the nail gun after hearing a commotion from inside the property when Ms Innes confronted Mr Smith, I am not satisfied beyond reasonable doubt that there was any significant degree of prior planning involved – this may well have been a rather spontaneous act of confrontation, amidst Ice use, when passing the house of Mr Smith.
32 In all the circumstances, I agree with the prosecution that both aggravated burglary offences are serious examples of the crime of aggravated burglary. You both entered as trespassers with an intention to assault. Whilst you entered a few minutes later, Mr Dewitte, your entry whilst in possession of the nail gun accentuates the gravity of the aggravated burglary insofar as it relates to you, given the inherent danger involved, being in possession of a nail gun with an intention to assault. I accept, Ms Innes, that you only became aware of the nail gun when Mr Dewitte entered the house. In relation to both of you, there was no particular sophistication to this crime, such as using items of disguise.
33 In relation to the false imprisonment charge, I agree with the prosecution that your conduct collectively represents a bad example of the crime of false imprisonment. Your victim, Mr Smith, was confined in his home for at least one hour by two offenders. During that extended period of time, the experience to which Mr Smith was exposed would have been terrifying, to say the least. During this period, you both engaged in extremely threatening behaviour towards Mr Smith, standing over him and threatening him. You, Mr Dewitte, physically held Mr Smith’s hand down onto the kitchen table whilst swinging the nail gun in a threatening manner and swearing at him. Whilst Mr Smith was physically detained in this manner, you, Ms Innes, began thrusting the knife between Mr Smith’s fingers. This was not simply a case of a victim being detained and prevented from leaving. Through your words and actions, you physically detained Mr Smith amidst escalating instances of threatening and violent conduct, which caused Mr Smith to justifiably fear for his life. This is, in my view, a serious example of the crime of false imprisonment committed in company by the two of you.
34 In relation to the common law assault charges, the prosecution submitted that these charges comprise multiple instances of terrifying acts, thereby representing a serious example of such offending.
35 Mr Dewitte, on multiple occasions you threatened to nail Mr Smith to the table, wall and floor. You also threatened to cut off his fingers and toes. You discharged the nail gun a number of times whilst inside the premises. You then swung the nail gun in a threatening manner whilst you held Mr Smith’s right hand down on the table. As you were leaving, you threatened Mr Smith that if he contacted police you would return and nail him to the floor and burn the house down – very much an aggravating aspect to your offending.
36 Ms Innes, you grabbed Mr Smith by his left arm and twisted it behind his back amidst Mr Dewitte’s threatening behaviour. Whilst Mr Dewitte held Mr Smith’s hand down onto the table, you began thrusting a knife between his fingers. You also participated in threats that Mr Smith’s fingers and toes would be cut off. When Mr Smith went to stand up from the table, you physically assaulted him by swinging your hand and forearm at least 10 times back and forth, striking both the left and right sides of Mr Smith’s head, one of these blows causing Mr Smith’s false teeth to fly out of his mouth and onto the floor. Your conduct in relation to Mr Smith caused bruising which was later observed by a doctor.
37 I regard your conduct collectively in relation to this offence to be equally as serious. Notwithstanding that you, Ms Innes, physically struck Mr Smith, your conduct, Mr Dewitte, as I have described it, was extremely serious and threatening. Collectively, your conduct represents a serious example of the crime of common law assault.
38 Ms Innes, in addition to the crimes to which I have referred, you have pleaded guilty to an additional charge of theft. Whilst inside Mr Smith’s home, you stole cash, a phone, an iPad, personal banking identification cards, and a vacuum cleaner. In addition to the inherent monetary value involved in these items, your conduct in this regard accentuates your criminality overall, as your theft of these items no doubt added to the trauma and inconvenience endured by Mr Smith.
39 Mr Dewitte, you have pleaded guilty to a charge of cultivation of cannabis, in relation to the six plants and amount of dried cannabis found at the rear yard of your property upon your arrest. Given the quantities involved, I am satisfied that this conduct represents a low-level example of the crime of cultivation of a narcotic plant.
40 I will now turn to matters personal to each of you, before dealing with sentencing purposes applicable to you both, and finally the sentences to be imposed.
Stuart Dewitte
Personal circumstances
41 You are now 28 years of age, having been born in Hamilton in 1991. Your parents have never been separated and reside in Hamilton. Your father, in his late fifties, owns a cleaning business, and your mother, in her late forties, works as a cleaner.
42 You have two older brothers and a younger sister, all of whom have had histories of illicit drug use. In particular, your older brother, Tim, who introduced you to cannabis at the age of 10, has apparently suffered from drug induced psychosis for which he has been in and out of psychiatric hospitals. Your sister has also had problems with methamphetamine, and as a result her children have been removed from her care.
43 You have reported that you were raised by two loving and caring parents, albeit their work commitments meant that they were often away from home because of their long hours of work, leaving your brothers to look after you.
44 You were assessed by psychologist, Jeffrey Cummins, for the purposes of your plea hearing, on 14 February 2020, resulting in Mr Cummins’ first report dated 20 February 2020 (Exhibit 1). In that report, Mr Cummins indicated that whilst you had said that you had been mistreated by your brothers, you declined to elaborate and specifically denied having been subjected to any sexual abuse. You were subsequently assessed by Mr Cummins on 3 April 2020, resulting in Mr Cummins’ second report to the Court dated 4 May 2020 (Exhibit 2).
45 In that report, Mr Cummins indicated that notwithstanding your denials in the initial interview, you in fact had been sexually abused by your oldest brother from about the age of seven or eight, for a period of some two years. Mr Cummins subsequently gave evidence before me on 23 September 2020, in relation to the psychological impacts of this abuse.
46 In your most recent contact with Mr Cummins, you referred to various forced acts of sexual activity with your oldest brother, including oral sex, masturbation and anal penetration. You also referred to your brother locking you in a birdcage and tying you up when you would not obey him, and that sometimes he would torture you with cold water. You also referred to your oldest brother introducing you to cannabis from a very young age and taking videos of you smoking cannabis and passing it on to his friends. You informed Mr Cummins that cannabis for you was the “gateway drug”, effectively introducing you to use and abuse other illicit drugs and prescribed medications subsequently.
47 On the basis of your recent disclosures to him, Mr Cummins diagnosed you as suffering from Post-Traumatic Stress Disorder, being a specific example of a trauma and stressor-related disorder.
48 Mr Cummins gave evidence before me on 23 September 2020, elaborating upon the basis upon which he made this diagnosis. According to Mr Cummins, you satisfied all six criteria to warrant the diagnosis. According to Mr Cummins, you are unquestionably suffering from Post-Traumatic Stress Disorder, and were suffering from this disorder prior to your arrest and remand in custody. I will return to Mr Cummins’ opinions in relation to the psychological impacts on your offending behaviour shortly.
49 After leaving school upon completion of Year 9, you subsequently completed a roof tiling apprenticeship with your uncle. You were employed by your uncle for approximately 10 to 12 years, until about four years ago, after which you have worked as a sub-contracted roof tiler in the Hamilton and Warrnambool areas. I accept that you therefore have a productive work history. In that regard, I have read and considered three character references tendered on your behalf (Exhibit 7), attesting to your good character in this regard.
50 In terms of your drug history, as I indicated, you were introduced to cannabis by your older brother from about the age of 10. By the age of 15 you were typically smoking up to three or four grams of cannabis daily. You started experimenting with amphetamines and methylamphetamines at the age of 18, and thereafter often smoked methamphetamine daily, up to one or two grams per day. Over the last two or three years prior to your arrest, your dependency transferred to smoking heroin, as well as OxyContin and Endone.
51 You have an extremely limited criminal history, with three prior Court appearances in 2010, 2016 and 2018, for offences including driving matters, shop steal and possess cannabis. Penalties received have been limited to fines.
52 Approximately seven years ago, you met and commenced a relationship with Ms Innes. You lived together for some six years before separating for a number of months, and then resuming living together in the months prior to the current offending. You have two children together, Jaxson (aged six) and Jacob (aged three). Drug use has been a feature of your relationship with Ms Innes, particularly methamphetamine.
Your Culpability and Degree of Responsibility for the Offending
53 You have indicated that, at the time of the offending, both you and Ms Innes were under the influence of methamphetamine. You indicated to Mr Cummins[2] that together you were driving through Kirkstall and Ms Innes suddenly indicated that she wanted to visit the victim. After she entered the property and you heard yelling, you went to the property armed with the nail gun “sort of for protection”. Once you entered the property you heard Ms Innes shouting at the victim that she had been sexually assaulted by him when she was younger, causing you to “lose the plot”[3].
[2]Jeffrey Cummins, Psychological Report (20 February 2020) Paragraph [37]
[3]Ibid
54 In Mr Cummins’ second report[4] and in evidence before me, Mr Cummins expressed the opinion that your own history of sexual abuse, belatedly disclosed, was likely to have played a role in your offending behaviour whilst inside Mr Smith’s property.
[4]Jeffrey Cummins, Psychological Report (4 May 2020) Paragraph [14]
55 According to Mr Cummins, you gave a plausible narrative in relation to your history of sexual abuse, and its impact on your offending. Whilst you were frank in indicating that you had used Ice at the time of the offending and would have been under the influence of methamphetamine therefore at the time, you informed Mr Cummins that you lost the plot upon hearing a reference to prior sexual abuse once inside the property. You informed Mr Cummins that this was part of the reason you responded in the way that you did.
56 According to Mr Cummins, whilst he could not say definitively that there was a nexus therefore between your own history of sexual abuse and your offending inside the property, it was quite probable given your plausible account to him. According to Mr Cummins, due to your psychological condition at the time, you would have been vulnerable or susceptible to being retriggered in relation to your symptoms. According to Mr Cummins, therefore, your sexual abuse history would have contributed to your violent behaviour, and the effects upon you of methamphetamine would have also played a role in terms of the magnitude of the violence.
57 Mr Cummins conceded in evidence that your drug use at the time clouded the connection between your Post-Traumatic Stress Disorder and its impact on your offending behaviour, referring to your drug use as “another relevant factor” in terms of understanding your offending behaviour and your culpability for it.
58 I am satisfied, therefore, that there is a nexus between your pre-existing mental illness, namely Post-Traumatic Stress Disorder, and your offending behaviour, such that there should be a reduction to some extent in your moral culpability for your offending. However, this reduction is limited to the false imprisonment and common law assault offending, committed after your entry to the house, and upon hearing Ms Innes’ claims of prior sexual abuse.
59 As conceded by your counsel, it does not apply to the aggravated burglary, as through your plea of guilty you have accepted that you entered the property with an intention to assault, in possession of the nail gun, prior to learning of Ms Innes’ allegation regarding sexual assault. Your moral culpability for the aggravated burglary, therefore, remains significant.
60 In relation to the false imprisonment and common law assault offending, your own history of sexual abuse, whilst offering a partial explanation for your offending, in no way excuses your serious conduct in this regard. Nevertheless, a reduction in your moral culpability for the false imprisonment and common law assault is warranted, pursuant to Verdins’[5] principle 1.
[5]R v Verdins (2007) 16 VR 269
61 In relation to all of your offending, I have also taken into consideration the degree to which your conduct was impacted upon by your drug use and, indeed, it seems, drug addiction. Whilst drug addiction is usually not a mitigatory factor, I have taken into consideration, when assessing your moral culpability, the fact that you were introduced to cannabis at a very young age (10 years of age), by your older brother who sexually abused you. The extent to which a person can be said to have freely made a decision to first experiment with drugs is relevant to an assessment of an offender’s moral culpability.[6]
[6]The Queen v McKee and Brooks [2003] 138 A Crim R 88 at [13]
62 Finally, in relation to your moral culpability, as accepted by the prosecution, I am unable to be satisfied to the requisite degree that you brought the nail gun to Mr Smith’s home for the purposes of committing the offences, which would otherwise constitute an aggravating feature of the offending. The prosecution accepts that it cannot exclude that you drove to Mr Smith’s address in your work vehicle and that the nail gun was taken inside by you simply because it happened to be in the utility box in your vehicle.
Guilty Plea
63 Pleas of guilty were entered by you at a contested committal hearing at the Magistrates’ Court on 28 February 2020, prior to the calling of any evidence. Two letters of apology written by you on 1 December 2019 were tendered at your plea hearing (Exhibit 8), clearly indicating that prior to the committal hearing you had accepted responsibility for your behaviour.
64 In all the circumstances, I accept that you have entered your pleas of guilty early in proceedings, although not at the earliest stage, a matter conceded by the prosecution in this case. Particularly given the current implications of the COVID-19 pandemic and its impact upon the administration of criminal justice in this State, there is considerable utilitarian benefit to your pleas of guilty. Your victim has been spared the added trauma of having to give evidence at either a committal hearing or trial. Other witnesses have been spared the inconvenience of doing so. The community has been spared the cost and delays associated with a committal and trial. As has been stated in other Courts, the benefit attaching to a plea of guilty in the current environment, where jury trials have been suspended until further notice, is increased and substantial.
Remorse
65 In the circumstances, I am satisfied that your plea of guilty is reflective of remorse on your part, warranting a further sentencing discount. The letters of apology to which I have referred include, as at 1 December 2019, a direct apology to your victim. When first assessed by psychologist, Mr Cummins, you repeatedly apologised regarding your offending, stating that you felt bad and regretful concerning your behaviour.[7]
[7]Jeffrey Cummins, Psychological Report (20 February 2020) Paragraph [39]
Hardship in Custody
66 You have now been in custody for 553 days, or just over 18 months. Custodial course certificates tendered at your plea hearing (Exhibit 4), attest to the degree to which you have attempted to use your time in custody productively, in relation to vocational and drug rehabilitation courses. I have also had regard to a drug urine screen dated 13 May 2020 (Exhibit 5), attesting to your abstinence from illicit substances whilst in custody.
67 You have also taken important steps towards dealing with your addiction issues by being placed on the Methadone Program, and your current dose is 80 milligrams. I have also considered documentation from the Windana organisation (Exhibit 10), attesting to your prior suitability for entry into a residential rehabilitation facility and attesting to your rehabilitative endeavours. Since being in custody, you have retained the support of your family. You have apparently been a model prisoner whilst in custody, obtaining work in the prison kitchen at Ravenhall as your section’s leading hand, and you have retained this position notwithstanding the COVID-19 restrictions in recent times. However, I accept that your time in custody has in many respects been quite onerous.
68 According to a discharge summary from Forensicare dated 26 February 2020 (Exhibit 3), upon your initial remand into custody you appeared to be suffering from a drug induced psychosis, for which you were prescribed Olanzapine.
69 In his first report to the Court, Mr Cummins referred to you being prescribed the antidepressant, Avanza, together with mood stabilisers and Methadone. Mr Cummins referred to an incident four months after your arrest where you and other prisoners were transported to Warrnambool Hospital for medical observation in relation to possible carbon monoxide poisoning, when a prison van in which you were located caught alight and you suffered smoke inhalation. You referred to having seen a counsellor at Ravenhall fortnightly following this incident. You also referred to an incident whilst you have been on remand where a fellow prisoner tried to hang himself on the top tier of a cell, which was observed by yourself.
70 Further adding to your hardship in custody, in April of this year, your father George was the victim of an assault, where he sustained various face and head injuries which required treatment at Royal Melbourne Hospital, as confirmed by medical documentation tendered at your plea hearing (Exhibit 9). I was informed and accept that your father was for a period unable to run his cleaning business, and your inability to assist your family during this difficult period accentuated your onerous circumstances in custody, and has added to the degree to which your time in custody overall has affected the sentencing purpose of specific deterrence.
71 In your subsequent assessment interview with Mr Cummins on 3 April 2020,[8] just six days before your father’s assault, you presented to Mr Cummins as being more anxious than at the initial assessment. You spoke of feeling afraid in relation to the impacts of COVID-19 on your family, particularly your children. You spoke of the impacts of suspension of prison visits in relation to your contacts with your children, who had previously been brought in to see you, and you were now restricted to video conferences with them. You referred to feeling trapped in your cell, hearing voices and having panic attacks and flashbacks in relation to the prison van fire episode. You referred to an increase in the frequency of you being seen by mental health professionals at Forensicare.
[8]Jeffrey Cummins, Psychological Report (4 May 2020) Paragraph [5]
72 In evidence before me, Mr Cummins articulated that these difficult episodes to which I have referred may have added to your Post-Traumatic Stress Disorder symptoms. Mr Cummins also referred to the impact of custody upon you, due to your psychological issues. You have recently made disclosures in relation to sexual abuse by your brother when you were a child, together with instances of being detained and restrained by him. You have also endured other traumatic incidents, including the prison van fire and the attempted suicide of a fellow prisoner. You have received mental health treatment in recent times. According to Mr Cummins, all of this suggests a degree of complex mental health issues on your part.
73 On top of all of this, I have taken into consideration letters from M Power dated 5 August 2020 and 16 September 2020 (Exhibit 26), in relation to the behavioural issues of your son, Jackson, since both you and Ms Innes have been remanded in custody. In all the circumstances, I am satisfied that your Post-Traumatic Stress Disorder would make any sentence of imprisonment weigh more heavily upon you than it would on a person in normal health, warranting a further mitigatory allowance pursuant to Verdins’[9] principle 5.
[9]R v Verdins (2007) 16 VR 269
74 According to Mr Cummins in his first report,[10] he would expect your mental health would deteriorate if you were sentenced to a lengthy period of imprisonment. In evidence before me, Mr Cummins expanded on this, indicating that there was a very real risk of a worsening of your psychological issues in custody due to the matters to which I have referred. I am therefore satisfied that a further mitigatory allowance is warranted pursuant to Verdins’[11] principle 6, on the basis that there is a serious risk of imprisonment having a significant adverse effect on your mental health.
[10]Jeffrey Cummins, Psychological Report (20 February 2020), Paragraph [55]
[11]R v Verdins (2007) 16 VR 269
75 I have already referred in general terms to the impact of COVID-19. I am satisfied in relation to the issue of hardship in custody that a mitigatory allowance is warranted in relation to the anxiety caused by COVID-19. It is now no longer a matter of speculation as to whether COVID-19 would enter the prison system. It is fair to say that the circumstances in which prisoners experience life in a custodial setting has been fundamentally changed due to COVID-19. All face to face visits have been suspended until further notice. Accessibility to rehabilitative programs and employment has been significantly curtailed. Freedom of movement within the prison setting has been significantly restricted. All prisoners live with the ongoing anxiety attendant upon the significant adverse consequences of COVID-19. A mitigatory allowance is therefore warranted.
Prospects of Rehabilitation
76 I am satisfied, in all the circumstances, that you have favourable prospects for rehabilitation, subject to appropriate specialist interventions. According to Mr Cummins in both of his reports, he regards your prospects of long-term rehabilitation to be “reasonably favourable”. You have a very limited criminal history. You have a stable and, it seems, productive work history. You retain the love and support of family. In difficult circumstances, you appear to have used your time in custody productively. You have pleaded guilty and have acknowledged the impact of your offending on your victim. You acknowledge the need for ongoing and, indeed, long-term rehabilitation regarding your drug abuse issues. You have now been forthcoming in relation to your history of sexual abuse and its impact on your behaviour. For these reasons, and subject to appropriate supports when you are eventually released into the community, I am satisfied that your prospects for rehabilitation are favourable.
Tammy Louise Innes
Personal Circumstances
77 You are 27 years of age and identify as an Aboriginal (Yorta Yorta) woman. You were born and raised in Geelong until the age of five, when the family moved to Warrnambool and Mortlake, living in numerous rural towns in Victoria over the years. Indeed, you have reported to psychologist, Warren Simmons (Exhibit 13), that your family lived in about 20 different houses over the years.
78 Your parents separated when you were aged six, with your mother subsequently forming a relationship with another man. You have two younger sisters aged in their early twenties. You have described your childhood as unstable. Indeed, it seems that your childhood and upbringing was impoverished and difficult. Your parents apparently fought a great deal, amidst both of your parents smoking cannabis. Your mother apparently has suffered from alcohol and drug problems, together with some mental health issues. After your mother and father separated, your mother spent much of any money obtained on alcohol. You would see your father on weekends, but otherwise, due to a falling out between your mother and your grandmother, it seems that you were fairly isolated with your mother at the time.
79 When your mother subsequently re-partnered, a brief period of stability was overtaken by further difficulties when your mother’s partner suffered a work accident, leaving him unable to work and leading to him becoming depressed, drinking, and attempting suicide. Conflicts increased between your mother and her new partner, leading to your mother spending significant periods gambling. As a result, you were often left to care for your younger siblings.
80 You left home at the age of 13, leaving your younger sisters behind. You came to Melbourne, living initially with a friend in Dandenong and enrolling at a local secondary college. Following a falling out with your friend, you suffered from periods of homelessness and general instability, living mostly in the Hamilton and Warrnambool areas, and using a lot of alcohol and drugs at the time. Amidst this, you appear to have obtained a Year 10 level of education.
81 During the period in your early teenage years when you experienced substantial instability of both housing and life circumstances, living mostly in the Hamilton and Warrnambool areas and using alcohol and drugs, you ended up in a share house in Warrnambool with some older friends. At around this time, you were the victim of a sexual assault. In that regard, I have read and considered medical notes from a Dr Singh from 20 October 2017 (Exhibit 14), referring to you being raped at the age of 14 years. You have apparently only recently started to receive counselling in relation to this traumatic incident, that is since your remand in custody.[12]
[12]Exhibit 15; Ms Laura-Jane Singh, Letter from WestCASA (31 January 2020)
82 You have reported a considerable and disturbing drug and alcohol history. Your mother apparently first gave you an Endone tablet at the age of 12. She would then apparently give you this drug once a week, later also giving you OxyContin. Also, from the age of 12, your mother gave you alcohol, leading to you subsequently consuming alcohol every few weekends until you were “blackout drunk”. Your alcohol consumption then increased to every weekend and then occasionally during the week.
83 You have reported to psychologist, Mr Simmons, that alcohol numbed everything and was an escape from your feelings, admitting that you would consume up to a slab at a time. Cannabis use also commenced at the age of 12, with your mother, smoking daily at the beginning. Your use consisted of two grams a day and continued until the age of 15, after which you preferred the prescription medication you were obtaining at the time.
84 Approximately three years ago, you commenced using heroin, explaining to Mr Simmons that the opioid medication you had been using was no longer having an effect. You reported to Mr Simmons injecting the drug twice a week, even continuing your use despite commencing on Methadone some five years ago. Towards your late teenage years, at the age of 17, you began using amphetamines and Ecstasy every weekend. This changed to methamphetamine, which you regularly smoked, and your use peaked at one and a half grams a day until your incarceration. You have also previously used Ketamine, GHB, mushrooms and cocaine. You indicated to psychologist, Mr Simmons that you had not previously undertaken any treatment in the community in relation to your drug and alcohol issues.
85 You have had a number of previous intimate relationships, your first from the age of 12. That relationship was intermittent over the next four years, and you have reported that this relationship was quite toxic, emotionally abusive, and sexually abusive. At the age of 15 you met your next partner, who was two years older than you, and you lived with his parents for a period of time, obtaining a sense of stability. That relationship continued until you were 18, when you became pregnant. Following complications with that pregnancy, sadly Kayden was born prematurely at 23 weeks and died one hour after delivery. You were just 17 years of age at the time. In the context of your emotional struggles following this tragic event, that relationship ended.
86 Following the death of Kayden, you entered a period of heavy drug and alcohol use with consequential periods of homelessness and a suicide attempt. In that regard, and in relation to the difficulties associated with your pregnancy, I have read and considered various hospital and medical notes tendered at your plea hearing (Exhibits 16, 17, 18).
87 During this tumultuous period, you met Mr Dewitte. Together, your drug usage increased. Whilst you have acknowledged it as being a good relationship, you have reported that it was at times physically and emotionally abusive, particularly when you were both using methamphetamines. You would encounter periods of sobriety, together with relapses. In terms of your mental health, I have read and considered various discharge letters from South West Healthcare, documenting such interventions. In particular, I note that you have spent two weeks in the Psychiatric Unit at Warrnambool Hospital followed by four weeks at another facility, in the context of having been diagnosed with a drug induced psychosis.[13]
[13]Warren Simmons, Psychological Report (24 March 2020), paragraph [24]
88 During periods of abstinence from methamphetamine, you have reported that your relationship with Mr Dewitte was positive. Together, you have two children: Jaxon, aged six; and Jacob, aged three.
89 It seems that the period leading up to the offending was a difficult period for you, in relation to your increased use of methylamphetamine, which you have reported you were using in large quantities with Mr Dewitte.
Your Culpability and Degree of Responsibility for the Offending
90 During your assessment with psychologist, Warren Simmons, you indicated in relation to the offending your belief that the victim in this matter had been sexually inappropriate with you when you were younger, and you had struggled with thoughts of this, regularly having to travel past his house to get from place to place, and often experiencing intrusive thoughts when that occurred. On this occasion, whilst you and Mr Dewitte were significantly substance affected, you decided that it would be a good time to confront him.
91 Mr Simmons expressed the opinion that you presented with a diagnosis of Post-Traumatic Stress Disorder but, in his report, did not clearly link such a disorder to the underpinnings of your offending. However, Mr Simmons, in my view, appropriately described your chronically disadvantaged and, indeed, traumatic upbringing and background. According to Mr Simmons, your childhood would have left you vulnerable to substance use, particularly as your mother and stepfather had modelled excessive substance use as normal behaviour.
92 You were introduced to drugs and alcohol by your mother, as I have said, from the age of 12. You have endured considerable instability of circumstances from a very young age. You have endured numerous relationships which have been marred by a degree of emotional, physical and sexual abuse. You were raped in your mid-teenage years. Notwithstanding your difficulties, you have a relatively limited criminal history.
93 Laura-Jane Singh, from the Specialist Trauma Service of West CASA, located at the Dame Phyllis Frost Centre, indicates in her letter to the Court dated 31 January 2020 (Exhibit 15), that you are:
“a young woman who has experienced extensive intergenerational trauma that has consisted of exposure/experience of family violence and long history of childhood sexual abuse and sexual assault … Ms Innes has experienced significant grief and loss and extensive complex trauma, because of these events and experiences she resorted to substance misuse as a way to cope with daily triggers, intrusive thoughts and flashbacks.”
94 Pursuant to the well-known principles articulated in the High Court decision of Bugmy,[14] particularly given your Aboriginality, I am satisfied that your moral culpability for the offending is reduced due to your childhood exposure to disadvantage, trauma, violence, and drug and alcohol abuse. Pursuant to the Bugmy[15] principles, the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending. Your experiences from your childhood and youth have played a significant role in shaping your personality and your responses. As a consequence, your culpability for the offending cannot be equated with that of a person who committed the same offence but had the advantage of a normal, stable and regular home environment during their formative years.[16]
[14]Bugmy v The Queen [2013] 249 CLR 571
[15]Ibid
[16]DPP v Drake [2019] VSCA 293 at [32]
95 On a related issue with regards to your drug use history and self-reported use of Ice prior to the offending - given your introduction to drug use at the age of 12, whilst drug use connected to offending is not usually mitigatory, I have made a mitigatory allowance by virtue of your introduction to drugs by your mother, at an age where it could not be said that your decision to use drugs was freely made.[17]
[17]The Queen v McKee and Brooks 138 A Crim R 88 at [13]
96 Whilst I have made mitigatory allowances in the manner described, your moral culpability for the offending is not reduced by virtue of your stated motivation to confront Mr Smith. I again reiterate that there is absolutely no direct evidence before me to substantiate your assertion that Mr Smith had previously sexually abused you.
97 On your own account, under the influence of methylamphetamine, and in company, you decided to physically confront Mr Smith in the middle of the night, by entering his home as a trespasser with an intention to assault. Such acts of vigilantism must be condemned on behalf of the community. Those who act contrary to the rule of law by taking personal vengeance need to be appropriately punished, so as to deter not only those offenders from committing similar offences in the future, but also to deter others from taking the law into their own hands.[18]
[18]Hamid v The Queen [2019] VSCA 5 at [48]
Plea of Guilty
98 As I indicated in relation to Mr Dewitte, a mitigatory allowance is warranted by virtue of your plea of guilty, Ms Innes, entered at the committal hearing but prior to the calling of any evidence, for the reasons I have previously articulated.
Remorse
99 I am satisfied that your plea of guilty is reflective of genuine remorse on your part. In that regard, I note Mr Simmons’ opinion that when discussing your offending behaviour, you became quite tearful and indicated that you were sorry for what had occurred and, in the opinion of Mr Simmons, you were able to demonstrate remorse for your actions. A further mitigatory allowance is therefore warranted.
Period in Custody
100 You have now been in custody for 553 days, or just over 18 months. Significantly, in December 2019, you self-referred to the Specialist Trauma Counselling Service of West CASA, located at the Dame Phyllis Frost Centre, where you have since obtained culturally appropriate assistance in relation to your deep-seated history of trauma and abuse.
101 Since 24 March 2020, you have been involved in the Intensive Residential Drug and Alcohol Treatment Program offered by Caraniche within the Dame Phyllis Frost facility. I have read and considered the impressive letter of support written by senior psychologist, Sandra Kahan from Caraniche, dated 27 July 2020 (Exhibit 12), indicating your positive progress within this entirely voluntary intensive unit at Dame Phyllis Frost Centre. Notwithstanding the challenges associated with COVID-19, you have maintained your position within the program, which involves you being abstinent from drugs, as monitored through random twice weekly drug screenings which have all been negative on your part.
102 I have also had regard to various courses and certificates obtained by you whilst in custody, further attesting to your positive progress in custody (Exhibit 22).
103 You have maintained the love and support of your family, some of whom I note were present during previous and current hearings, as was the case with regard to Mr Dewitte. Your children with Mr Dewitte, Jaxon and Jacob, have been in the care of your mother, Jenny Cain. As I indicated in relation to Mr Dewitte, I have read and considered the letters from M Power dated 5 August and 16 September 2020.
104 In relation to difficulties encountered by your oldest son, Jaxon, he has recently apparently been exhibiting symptoms of withdrawal and hypervigilance, tearfulness and emotional detachment. I have little doubt that your time in custody has been more onerous due to your awareness of the impact of your incarceration, together with that of Mr Dewitte, on your children.
105 As was the case with regard to Mr Dewitte, whilst these circumstances do not rise to the level of exceptional circumstances,[19] as with Mr Dewitte, a mitigatory allowance is warranted due to the increased anxiety caused, adding to your onerous time in custody.
[19]Markovic v The Queen [2010] 30 VR 589
106 I also acknowledge the applicable mitigatory allowance by virtue of the COVID-19 pandemic, and its impact upon your time in custody. Due to the indefinite suspension of personal visits, your contact with your children is now limited to video and phone contact only. As was the case with Mr Dewitte, I have no doubt that the impacts of COVID-19 have made your time in custody more onerous, and a mitigatory allowance is therefore warranted.
107 On the basis of the opinions expressed by psychologist, Mr Warren Simmons, together with a review of the medical history as evident from the various documents tendered, I am satisfied that a further mitigatory allowance is warranted by virtue of Verdins’[20] principle 5, in that your Post-Traumatic Stress Disorder, as confirmed by Mr Simmons, could mean that a sentence of imprisonment would weigh more heavily on you than it would on a person in normal health. However, given the absence of any clear evidentiary foundation, I am unable to make a further mitigatory allowance pursuant to Verdins’[21] principle 6 – that there would be a serious risk of imprisonment having a significant adverse effect on your mental health.
[20]R v Verdins (2007) 16 VR 269
[21]Ibid
Rehabilitative Prospects
108 The prosecution in this case has conceded that your prospects for rehabilitation are reasonable, albeit predicated on your ability to remain substance free when released from custody.[22] Notwithstanding your chronically disadvantaged background, you have a limited criminal history which is largely made up of driving offences, together with criminal damage and one instance of recklessly cause injury, for which you received a without conviction fine of $400, reflecting the likely gravity or lack thereof of that offence.
[22]Prosecution Outline of Sentencing Submissions (5 August 2020) Paragraph [48]
109 You maintain the love and support of your family. Like Mr Dewitte, you have the clear motivation of your two young children, who are currently being cared for by your mother. Significantly, you have made excellent rehabilitative progress whilst in custody, particularly in relation to the Caraniche Residential Drug Program to which I have referred. I am satisfied, in all of the circumstances therefore, that your rehabilitative prospects are favourable.
Sentencing Principles Applicable to Both
110 I return now to matters applicable to both of you. Pursuant to s5(2) of the Sentencing Act 1991, I am required to have regard to various factors in formulating an appropriate sentence in your case. I have referred to the maximum penalties applicable, the nature and gravity of your offending, your respective culpability and level of responsibility for the offending, the impact of your offending on Mr Smith, your plea of guilty, your respective criminal histories and general previous character, and various other mitigatory factors.
111 Whilst neither party drew my attention to any previous sentencing decisions said to be comparable to this case, I have had regard pursuant to s5(2)(b) of the Sentencing Act 1991 to current sentencing practices, as one of the factors relevant in this case. I note, in particular, that recent authority points to the need for substantial punishment for the serious crime of aggravated burglary, particularly confrontational aggravated burglaries such as this one.
112 In formulating appropriate sentences in your case, I have also had regard to the principle of parity – equal justice requires that like offences be treated alike, but also that relevant differences between offenders be capable of being treated as justifying different outcomes.[23]
[23]Piacentino v The Queen [2019] VSCA 153 at [43]
113 As will be apparent from these Reasons for Sentence, notwithstanding your involvement in the one incident, to some degree your levels of involvement and responsibility differ, as do your personal circumstances and attendant mitigatory factors applicable. By way of example, in relation to the charges of aggravated burglary, I regard your culpability, Mr Dewitte, as being higher than that of Ms Innes. You entered as a trespasser in possession of a nail gun. Whilst I have moderated your moral culpability for your conduct inside the premises by virtue of the expert opinion of Mr Cummins, this moderation does not apply to the aggravated burglary offence. In contrast, pursuant to the Bugmy[24] principles, your moral culpability, Ms Innes, for the entirety of the offending, is reduced. However, in contrast to Mr Dewitte, you, Ms Innes, fall to be sentenced for the additional charge of theft of various items from Mr Smith, accentuating your culpability overall.
[24]Bugmy v The Queen [2013] 249 CLR 571
114 In my view, in relation to both of you, there is a need for a degree of cumulation between the offences to reflect the distinct criminality involved. There is, however, in my view, considerable overlap in terms of criminality between the false imprisonment charge and the common law assault charge. As submitted by the prosecution, the assault-related behaviour accentuated the gravity of the false imprisonment which occurred at the same time. In formulating appropriate sentences in relation to these two charges, in particular, I have taken care not to doubly punish you given the overlap. Moreover, any degree of cumulation imposed in this case is subject to the overriding principle of totality, and the need not to impose a crushing sentence.
115 Section 5(1) of the Sentencing Act 1991 sets out the only purposes for which sentences may be imposed. In this case, there is a need for any penalty to reflect the sentencing purpose of denunciation of your serious criminality. There is also a need to deter other persons from committing offences of the same or similar character. As conceded by the prosecution, in relation to you, Ms Innes, the applicability of the sentencing purpose of general deterrence is moderated due to your disadvantaged background and the Bugmy[25] principles. In relation to you, Mr Dewitte, in relation to the false imprisonment and common law assault charge only, general deterrence has reduced application due to the impacts of your Post-Traumatic Stress Disorder at that time pursuant to Verdins’[26] principle 3.
[25]Bugmy v The Queen [2013] 249 CLR 571
[26]R v Verdins (2007) 16 VR 269
116 Whilst there is a need for any penalty to reflect the sentencing purpose of specific deterrence, given your limited criminal histories, together with your pleas of guilty, your expressions of remorse, and the hardships in custody to which I have referred, I am satisfied that specific deterrence has less applicability in this case.
117 In relation to the need for any penalty to reflect the sentencing purpose of the facilitation of your rehabilitation, as I have explained, I am satisfied in both cases that you have favourable prospects for rehabilitation, and I have taken this into consideration in formulating an appropriate sentence in your case.
118 In all the circumstances, notwithstanding submissions by your counsel, Mr Dewitte, that a sentence of imprisonment combined with a Community Correction Order was within range, I have come to the view that the offending is simply too serious for such a disposition. In my view, a sentence of imprisonment which acknowledges your rehabilitative prospects through eligibility for parole is warranted.
119 Mr Dewitte and Ms Innes, I now come to the portion of my sentencing reasons where I will impose sentences upon you both. Doing my best to distil all of the relevant sentencing factors and purposes to arrive at just punishment in both cases, I sentence you as follows.
Sentence – Mr Dewitte
120 On Charge 2, aggravated burglary, you are convicted and sentenced to 3 years and 9 months’ imprisonment. This is the base sentence.
121 On Charge 3, false imprisonment, you are convicted and sentenced to 2 years and 4 months’ imprisonment.
122 On Charge 4, common law assault, you are convicted and sentenced to 1 year and 8 months' imprisonment.
123 On Charge 6, cultivation of a narcotic plant, namely cannabis, you are convicted and fined $500.
124 I direct that 5 months on Charge 3 and 4 months on Charge 4 be served cumulatively upon each other and upon the base sentence imposed on Charge 2, making a total effective sentence of 4 years and 6 months’ imprisonment. I direct that you serve a period of 3 years before becoming eligible for parole.
125 Pursuant to s18(1) of the Sentencing Act 1991, I declare a period of 553 days has been served by way of pre-sentence detention. This amount will be deducted administratively from your sentence.
126 Pursuant to s6AAA of the Sentencing Act 1991, I declare that had you not pleaded guilty, I would have sentenced you to a total effective sentence of 6 years and 6 months’ imprisonment with a non-parole period of 4 years and 6 months.
Sentence – Ms Innes
127 On Charge 1, aggravated burglary, you are convicted and sentenced to 3 years and 3 months’ imprisonment. This is the base sentence.
128 On Charge 3, false imprisonment, you are convicted and sentenced to 2 years and 4 months’ imprisonment.
129 On Charge 4, common law assault, you are convicted and sentenced to 1 years and 8 months’ imprisonment.
130 On Charge 5, theft, you are convicted and sentenced to 12 months’ imprisonment.
131 I direct that 5 months on Charge 3, 4 months on Charge 4, and 2 months on Charge 5 be served cumulatively upon each other and upon the base sentence imposed on Charge 1, making a total effective sentence of 4 years and 2 months' imprisonment. I direct that you serve a period of 2 years and 6 months before becoming eligible for parole.
132 Pursuant to s18(1) of the Sentencing Act 1991, I declare a period of 553 days has been served by way of pre-sentence detention and this amount will be administratively deducted from your sentence.
133 Pursuant to s6AAA of the Sentencing Act 1991, I declare that had you not pleaded guilty, I would have sentenced you to a total effective sentence of 6 years' imprisonment with a non-parole period of 4 years.
Ancillary orders
134 In relation to both of you, I make the disposal order sought by the prosecution.
135 In relation to you, Ms Innes, I make the two compensation orders sought by the prosecution.
136 Can I please confirm with defence representatives that none of the ancillary applications were opposed, firstly, Mr Bhattacharya.
137 MR BHATTACHARYA: No, Your Honour.
138 HIS HONOUR: And, Ms Cao?
139 MS CAO: No, Your Honour.
140 HIS HONOUR: Yes. Thank you. I will sign those orders once they are produced.
141 Firstly, Ms McDonnell, any issues or ambiguities in relation to those sentences? Have I missed anything?
142 MS McDONNELL: No, Your Honour. Thank you.
143 HIS HONOUR: Thank you. Mr Bhattacharya?
144 MR BHATTACHARYA: No, Your Honour. No issue.
145 HIS HONOUR: Thank you. Ms Cao, have I missed anything?
146 MS CAO: No, Your Honour.
147 HIS HONOUR: Yes. All right. Thank you. Thank you, Mr Swindon. If you can adjourn the Court please.
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