Director of Public Prosecutions v Dows

[2018] VCC 1756

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication
“Ex-Tempore”

AT MELBOURNE
APPELLATE JURISDICTION

AP-18-1764
& AP-18-2308

DIRECTOR OF PUBLIC PROSECUTIONS

v

LEE DOWS

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JUDGE:	HIS HONOUR JUDGE TINNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	22 and 24 October 2018
DATE OF SENTENCE:	24 October 2018
CASE MAY BE CITED AS:	DPP v Dows
MEDIUM NEUTRAL CITATION:	[2018] VCC 1756

REASONS FOR SENTENCE

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Subject: Appeal against sentence, Drug Treatment Order – activation of custodial part and calculation of remaining length, and fresh offending, Magistrates Court Orders set aside.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms C. Ratcliffe-Jones	Victoria Legal Aid
For the Respondent	Mr Watt	Office of Public Prosecutions

HIS HONOUR:

1These are your appeals against the sentences imposed at the Dandenong Magistrates' Court on 12 July this year.

2On that date there were, as you know, two matters before the court.  You will not know the appeal numbers, but I have got to actually identify them.  There was AP-18-2308, which was the cancellation of that drug treatment order you had been placed on and the activation of the custodial portion judged by the magistrate to be 350 days.

3There was also the other appeal - it was AP-18-1764 - and I have referred to those, and I will keep referring to those as the "fresh offences".  You know what I mean; they are the 11 that were dealt with - four of which you were fined, and seven of which were dealt with by the magistrate sentencing you to an aggregate term of 24 months' imprisonment and fixing a non-parole period of 18 months.

4As I understand it - on those orders at least, if they stand - your first eligibility for parole release would be 22 August 2019 with a sentence lapse date of 20 February of 2020.

5To understand these orders - of course, you do - but one needs to go back a little bit earlier, because, as we know, you appeared at the Magistrates' Court at Dandenong on 10 August of 2017.  That was on a very large consolidation of offences.  I am not going to go and list them all now, there is not a need for me to do that, but on that large consolidation of offences occurring from, I think, December of 2016 to about February of 17 you were placed on that drug treatment order.  That is to say in August of 17 you received an 18 month term of imprisonment and it was to be served by way of that drug treatment order.

6Your performance on that order was not disastrous by any stretch of the imagination.  That probably seems strange for me to be saying that, given that you are sitting in front of me in breach of that order and having committed offences, in the currency of it, but the fact is I have got a report from that crowd and it is not all negative at all, not by any stretch of the imagination.

7There were the 14 days of sanctions along the way, of course - also the offending that I have described as the fresh offending - and, of course, you brought it to an end by then absconding and not turning up at one of the review hearings and a warrant being issued and that being executed upon you in February of this year.  You were obviously all over the shop in February of this year, committing the offences for which I am now to deal with you, at least in part, and there are some other outstanding matters that are pending, and to be heard at Ringwood next year.

8Anyway, you left the Magistrates' Court then on 12 July, not under your own steam, but receiving a sentence of 24 months with an 18 month non-parole period, and the magistrate declared - I think incorrectly - the PSD at that stage.  He gave you more than you were deserving of.

9I have had the summaries of the drug treatment order offences placed before me.  As I say, I am not going to waste your time or mine rehashing all of those.  I have had also the summaries of the fresh matters that have been read to me in court the other day - and you were present, you heard those read.  I am not going to waste my time reading those.

10What I have to do; I am sitting here in the appellate jurisdiction.  It does not make much sense to have an appellate system, where a person can appeal against a sentence if the new judge, or judicial officer, doesn't actually exercise his or her own discretion.  That is what I have got to do.  I do not just look at what the magistrate did and do the same.  Sometimes I do, but I do that only in circumstances where I think it is appropriate.  What I have got to do is I have got to work out what the appropriate sentence is myself, so I have to set aside the Magistrates' Court orders, which I do, and have regard to the various matters that have been placed before me.

11You have heard me already give a bit of praise to Ms Ratcliffe-Jones and the way she has conducted the plea on your behalf.  I was not just saying that, and I do not say it too often, I can tell you, but she was across the relevant legislation and obviously had very detailed instructions in relation to your personal background, and the like, so she could not have done more on your behalf and it has been of great assistance to the court.

12She made realistic submissions in terms of the drug treatment order appeal.  There is no challenge to the cancellation of the order, or any reduction to the custodial portion over and above any pre-sentence detention.  What she was arguing is rather than calculate it at 350 days and activate that sum it would be open to calculate the activated portion by deducting the 135 days that ran when you were in custody, between the execution of the warrant on 27 February this year, and the date of the hearing of the breach on 12 July - and then declare as PSD the further period - 104 days since the July appearance to today; to the date of the sentence.  So she submits deduct all that and then therefore activate a much smaller portion - I think it was 116 days. 

13She conceded though that ordinarily the drug court - though there were some exceptions, ordinarily they would not make that sort of calculation and give credit for PSD, or pre-sentence detention, in relation to the other fresh offending.  One way or the other though of course you get credit for the time that you have been in custody, there is no question about that, it is just a matter as to how it is dealt with.

14As to the fresh matters she was arguing that the sentence was excessive, in that the sentences were disproportionate to the gravity of the seven offences that were dealt with by the magistrate.  She has made submissions today about the relative serious of the offending; how it is to be viewed.  She also made some submissions about your explanation for the theft from the hairdresser, which I do not accept for one moment, but she raised on your behalf a number of matters in mitigation.  I am not going to spend the next hour up here rattling them all off.  I have had regard to everything that has been said on the plea, as I hope these remarks will make plain.  I have considered the matter in some detail since last we met, and there have been fresh matters that have been raised today that further give me a sense of the person that I am dealing with and the risks that you pose into the future, and the judgements that I can make about your prospects of rehabilitation.

15Amongst those matters raised by your counsel were the fact that you pleaded guilty - well, you have, and you get a benefit for that, and you must.  If you had pleaded not guilty to these fresh matters and been found guilty by a court inevitably you would have done worse, and that is the position.  So I take into account your plea of guilty.  You have admitted your responsibility, you have avoided the need for a contested hearing.  So I take the guilty pleas into account in all the ways contemplated by the authorities in this area.  I am prepared to find that you have a level of remorse also for the commission of the crimes that are fresh before me.

16You have, actually, a pretty limited history, and I take that into account as well.  I will come back to that.  She raised also on your behalf what she has referred to as the extra curial punishment in this case.  What she is referring to there is the fact that in the course of one of these escapades - that is, the jaunt on 18 September when you were a passenger in a stolen vehicle, which you should not have been, the vehicle has left the road, it has been involved in an accident, and you have been the person seriously injured.  Injuries sustained by you that are obviously serious, that required surgical fixation, and there have been significant ramifications ever since.  That you have, therefore, an increased burden in custody - and I do not doubt that for one moment.

17There is a large amount of material before me from Corrections that spell out the impact of those injuries upon the way in which you can go about the service of the term of imprisonment that you have been serving, and also the fact that you are on the waiting list for the reoperation on that site, so your being in custody with those injuries is no easy business, so I take that into account as well by way of an increased burden.

18Worryingly, you are also on some opiate pain medication, and that is hardly the best thing for someone in your setting.  So there is obviously a need for the surgery to be conducted and to have at least the physical issues appropriately dealt with, and the rest hopefully will fall into place in terms of pain management.  That is on hold for the moment not because you are in custody, but because you are on a waiting list, and you would be on a waiting list whether you were in custody or not.  You are judged to be a Category 3 patient, which I think suggests that the procedure is desirable to be done within 365 days.  Anyway, you are on waiting list, and hopefully that can be done either whilst you are in custody, or after you are released from custody.

19I have been told a bit more about your background today, but I had pieced together a fair bit of it from the reference from your mother, and from the drug treatment report as well, and it is an unusual background - not unusual to see someone significantly affected by methamphetamine; we see it every second day we come into court, I am afraid - but unusual in the sense that you are a person who is 29 years of age and you have actually done a fair bit of meaningful work in the course of your life.

20You left school very young and went off to pursue an apprenticeship as a chef.  I understand that you have ultimately completed that. It was probably engagement in that occupation and the pretty crazy sort of hours involves that perhaps led you, initially, into some form of drug use.  Your choice, of course - it is no one else who has forced you to do drugs. You have sought employment in other industries - indeed, even in another state - but you had worked in another pretty punishing industry actually; as a furniture removalist for a significant period of time.

21I am not going to restate your full employment background, it has been placed before me today by your counsel, but what is apparent is that you have not been shy of actually working - and working hard and in long term jobs - so immediately you are a long way removed from many people who sit in the dock.

22Another feature is that off to your side today you have your parents sitting there.  Well, a lot of people do not have anyone, and you have got a fair bit of support.  It is not unqualified support; you are their son and they will support you, but they are going to need you to prove yourself to them and perhaps blot out some of the things that you have done in the past by your future good conduct, but you have got support.

23So you have got a meaningful employment history in the past, so that gives a pretty decent sense as to there being the prospect of that in the future.

24You had a relationship - a long term relationship - which, I suspect, you have compromised totally by the way that you have abused drugs, and you know that - and as a result you have lost those who are dear to you, and again, you are going to need to work your way back into that by the efforts that you make in rehabilitation in the future, but that is a goal that you can have, and it is one you should have, and it is, again, something that can give the court a sense that you have something really to work for into the future.

25There has obviously been a very deep trough in your life, and it was not a short one.  It was a pretty significant one arising out of drug use, and drug use then leading to this relationship breakdown - and no doubt connected up very much to the offending that you have committed - and it explains why the drug court took the steps that it did and placed you on the order; even in the face of very serious offending that they were dealing with.

26As I have said, the report before me is not at all negative.  I mean, there were some negative aspects, obviously, but there were some positive aspects, including a level of insight being displayed and a desire for change - and a desire being expressed - and one that I actually do accept is genuine.  Now, whether you can find it within yourself to change, that is the $64,000 question that you will be asking, and your parents will be asking.  If you cannot, it will be of the same, because you will keep offending.

27So look around you in prison; at the people that you see in prison.  Is that where you want to live your life?  Is that the sort of existence that you want?  It is not, and I know that, and it is a matter of taking the steps that you can take to avoid that at all costs, and that is a desire that I think can be seen expressed both in the drug treatment order report - even though it is here on a breach - and also the fact that a good deal earlier - in November of 14, and into 2015 - you were seeing Mr Glover.

28There is a report from Mr Glover in relation to the treatment that you had received - he is a senior forensic clinician.  So that pre-dates all of this offending, and so that related, I think, to your partner giving you something of an ultimatum and you went off and also got a mental health plan that I was told something about.  So again, it is evidence of someone who actually wants to make some change in their life.  You have not been able to make it, but the desire to do it is worth a fair bit, in my judgment.  There are some people who do not want to change.

29There is a criminal history, and you heard me deal with that briefly enough, and I think I can by saying this.  I have looked at your criminal history - it looks pretty ominous, actually, when you open it up, because it has got p.1 of 11, and then you have got 11 pages - and that is a bit depressing to see it, but then you actually read it and the criminal history - the first ten pages of that are devoted to the very matters I am dealing with; either the fresh offences and the appeal dealt with at the Magistrates' Court back in July 18, or sanctions imposed on the drug treatment order in December of 17 and November of 17, or the actual drug treatment order itself imposed on 10 August 2017 - and that then spans another handful of pages.

30So it is p.10 before I get to what I will treat as the first relevant matter.  Of course it is relevant - you were on the drug treatment order at the time of the fresh offending, you know that - but if I am looking back to look at your criminal history I would go right back to August of 2016, when you were placed on that CCO for burglary and theft, and prior to that there is a theft and obtain property by deception dealt with in February of that same year, then there is a very significant gap - I think a seven gap when you were dealt with at Ringwood for criminal damage, which has been explained to me - and prior to that there is a Children's Court matter.  Well, that is of no relevance to my task at all, given its age, so the point I am making is that as to your criminal record - there is nothing in that that suggests to me that you are beyond reclamation.

31It actually is not a long record, though I give you this as fair warning; it will appear to be a long record to a magistrate in the future who is dealing with you, so do not take any comfort from my analysis here, but that is the reality; you have not been at court on a large number of occasions.  It is a handful of occasions, you are 29 years of age, and so it is a very limited history, in my judgment, by a man who has taken some steps along the way, obviously, to deal with the addiction that no doubt contributes significantly to your appearance before the court.

32You have not succeeded in that - you will not be the first, and you will not be the last who has slipped back down that greasy pole of addiction.  It is not easy, and it will not be easy in the future, and it will not be solved by going to Western Australia, or by you working in one industry and not another.  There will be the availability of drugs for you to use in the future if you want to use them, or if you choose to use them.  You are going to need to work your way through those issues, and the best way for that is for you to be receiving, I would have thought, some significant inpatient treatment into the future.

33There has been a very strong letter that I have commented on, it is authored by your mum, but really on behalf of both of your parents, and it sets out a lot of relevant material.  It is an extremely thoughtful letter; it is warts and all, really.  It makes for pretty sad reading, as she describes the way in which you have gone from the happy go lucky boy that she brought up to someone who has spiralled out of control at some points in your life; into drugs with the breakdown of the relationship and the breach of bail and the breach of the drug treatment order and winding up in prison.  It has obviously been devastating to your mother and father, and to your family, to witness this descent - not just a descent into crime, but a descent into just a person other than the person that they brought up.

34She is not blind to your faults, not at all.  Recognises them, and recognises the need to obviously set some limits.  They are not going to have you back in an unqualified fashion; you are going to need to actually prove yourself to them in the years that lie ahead.  You have made very bad choices, and those choices have been devastating to you, but also to them.  You are going to need to mend lots of bridges, but hopefully you can, but she sees some good signs and has a sense that maybe the time in custody has saved you, actually.  She wonders whether you would be alive if you had not actually been incarcerated, and she describes being very pleasantly surprised, upon a visit in July, of seeing more the person that she used to see.  So there are these positive signs.

35So she has hope, and your parents no doubt have hope for the future.  I think that hope is realistic, given what I have said to this point.

36You have also done some courses in custody.  You have done some education as well.  You are thinking you need to re-skill to get into a different occupation.  That is a matter for you in the future, but it does not seem to me that you are someone who is shy of work, so I think being occupied is significant for anyone, actually, and there is no reason to think you will not be occupied once ultimately released.

37You have been tucked away in custody continuously since February of this year, when the warrant was executed.  What are your prospects of rehabilitation?  It is very difficult for a court to gaze into a crystal ball; we cannot.  All we can do is look at what is in front of us, in terms of the materials, and it is a bit hard for me not to be guarded about your prospects - it is probably hard for you not to be guarded; you do not know what the future holds for you. I have got your past failure on the order, and indeed, on the community corrections order as well.  I have got your absconding, I have got the fresh offending, but that cannot all be seen independent of the other positive things, and the positive things are the level of support that you are going to have, the limited criminal history that you do have, and the level of insight that you seem to have displayed as to the triggers for lapsing and the desire to get into a residential facility.

38I have been told that you have been waitlisted for a bed at Windana.  That the hope was that it would be available within three to five months.  The other day Ms Ratcliffe-Jones was suggesting “perhaps work on the theory of five”.  That estimate is looking a bit sick and sorry now, because she received an email from Windana suggesting it is more likely to be nine months.  We do not know, is the reality, but again, the fact   that you are seeking to head into that direction is suggestive of someone who wants to have some real change in your life. That is what you need.

39You hope to regain contact with your daughters, and you have not had contact for a long time - a pretty good reason for that, I would have thought, given the person that you had become at certain portions of your life over the last couple of years - and again, you are going to need to regain trust, and the best hope for you in that respect is to show a clean bill of health and clean drug urines, and a significant period of actual change in a residential facility.  There is also the circuit breaker obviously thrown up by the fact that you have been in custody for a significant period of time, and it would seem that you are drug free.

40The submissions made by your counsel as to disposition - well really she was arguing that there should be a sentencing structure that should permit you to enter into Windana in the relevant time frame which, at that stage, it was thought to be three to five months.  It is now looking to be much later than that.  So the suggestion was I could pass essentially a straight sentence and to permit that release in the not too distant future or a combination type disposition with a term of imprisonment with time yet to serve obviously which would then permit you to be released onto a community corrections order.

41Failing that, a non-parole period being fixed as against to head sentence but with a reduction in the length of time that you had to serve prior to being eligible for release on parole for the same reason: to permit at least consideration by the Adult Parole Board of your release on parole to Windana.  Now you have got the spectre of the outstanding matter though that is emerging now that is the matter that is listed at Ringwood in March of next year that might have the effect of impeding the Adult Parole Board from considering release on parole until that matter has been finalised.

42I cannot know one way or the other what the Adult Parole Board will do and ultimately I can tell you I am going to fix a non-parole period.  I cannot even work on the theory that you will be released on parole.  I have got to work on the theory that you will serve every day of the head sentence that I will soon pronounce but it will be apparent from the non-parole period that I am fixing that it would be in your interests, I would have thought, to try to get that matter in March of next year, brought forward. That no doubt would depend on the stance you were taking in relation to it whether you were pleading guilty or not guilty because if that is an impediment to you being released on parole, then that is something that I cannot do anything about.

43In any event, I do not believe it is appropriate to pass a straight sentence here.  I have got to pass an appropriate sentence.  I have got to consider the principles of totality but I have also got to consider the relationship between the sentences imposed here, both the drug treatment order sentence, that is the 350 days, and the other sentences imposed and the extent to which they should run together or be running consecutively.

44I do not believe it is appropriate to combine a term of imprisonment with a corrections order.  You have already had the most supervised release that exists, that is on the drug treatment order and you have not passed that with flying colours.  You have made some efforts but you have breached it.  You have breached it by non-compliance, you have breached it by offending and you then absconded.

45A community corrections order simply does not give me that direct connection that the Drug Court order would have or a parole order would have and I do not regard it as available in the circumstances for a person who has already breached a community corrections order and breached a drug treatment order.

46In addition, it would have you, as I perceive it at the moment, with far less direction than would be available under a drug treatment order and it would have a finite end in terms of a combined sentence, the prison term would come to an end.  You would then be released.  Of course there is no guarantee of any placement to Windana at all.

47Of course, prison is not to be utilised by me as a holding facility until something better is available.  That is not what my task is.  What I have got to do is pass an appropriate sentence.  If I thought that you had done enough time in custody to satisfy the various needs of sentencing, then I would have to release you and that would be so even if you had nowhere to go.

48But that is not the position.  I do not think that you have done enough time in custody at all.  I am going to pass a head sentence that would expose you to a significant period in custody and a non-parole period that will give you some cause for hope and, if released, perhaps foster your rehabilitation.

49Anyway, I have taken into account all the matters that had been raised on your behalf, including the principle of totality of sentence.  I do not want to impose a sentence that is crushing upon you and I have got to actually impose proportionate sentences, proportionate to the gravity of your offending.

50I will have you just remain seated, I think, in the circumstances.

51On AP182308, I will probably get the terminology wrong because I do not speak the Drug Court lingo but I am going to cancel the drug treatment order.  I am going to activate the custodial portion and that portion, I calculate to be, as the magistrate did, the period of 350 days.

52So I am going to reimpose that 350 day term.  That is you will be committed to prison for that 350 days which takes into account the fact that you had already served the 182 or 183 days in the lead up to that order being made and you have had the 14 days along the way by way of sanctions.

53I have had regard to those obviously.  That is how we get to 350 days but I am not going to bring into the calculation the 135 days you did after the warrant was executed.  You were in custody at that stage and remanded on the fresh offences. Nor am I having regard to the 104 days since the appeal.  You will get credit in another direction in a moment for all of that time.

54So what I am doing is I am doing what the magistrate did.  I am reimposing that 350 days that he imposed activating that sum.  This sentence imposed on that appeal has to be read in conjunction with the sentence imposed on AP-18-1764 which is the fresh offending.

55Again on that matter, the Magistrates' Court orders are set aside and on that matter, AP-18-1764, - you heard me say a few things about that.  It is not my job to speculate as to how or why the magistrate saw fit to impose a 24-month term with a non-parole period of 18 months.  I have perhaps a sneaking suspicion that there may well have been the unamended summary placed before the magistrate in the same way as there was before me when I first came onto the Bench and there is a very big difference between the unamended summary and the amended one.

56I will never know for sure but knowing that magistrate as I do, when knowing the true sentencing facts here and the personal circumstances available to me, I am a bit surprised by the outcome in the Magistrates' Court.

57In any event, that is not important for me to determine and I will never be able it.  I must pass a proportionate sentence.  I act on the amended summaries placed before me.  I cannot go beyond them and on the matters for which fines were imposed.  There is no issue taken with those various fines that were imposed and on those matters - I reimpose the fines imposed by the magistrate in relation to Charge 10, possession of GHB, Charge 13, possession of GHB, Charge 15, the trespass and Charge 17, the fraudulently use of the number plates.

58I reimpose the same monetary penalties that were imposed.  There is no issue taken with that at all by your counsel.  Indeed she was really indicating that that part of the appeal was not actually proceeding and it has not.

59I should have made plain on the drug treatment order that I granted leave the other day for the appeal to proceed out of time.  That probably should appear on the formal order.  I am not sure it did the other day.

60Returning then to the fresh matters.  So that is Charge 2, 6, 7, 8, 9, 11 and 12 and they are the other parts of that appeal and they are the parts where you received a term of imprisonment.  The term that you received in the Magistrates' Court in July was 24 months with an 18-month non-parole period.  I do not regard that as a proportionate sentence at all in the circumstances.

61So what I am going to do is on Charge 2, 6, 7, 8, 9, 11 and 12, so charges of theft of a motor vehicle, two of those, obtain property by deception, three of those, and attempt to commit an indictable offence and the charge of theft so those seven charges, I am going to impose a term of imprisonment.  It is going to be an aggregate term.

62I have asked your counsel whether she has got any issue in terms of the legalities of an aggregate sentence being employed.  No doubt I can impose separate terms of imprisonment for those separate offences and then I could pass levels of cumulation between them and levels of concurrency to reach the same end destination but she is not suggesting I should do that and she is content with an aggregate sentence being pronounced.

63So on those charges, I am going to convict and sentence you to an aggregate term of 12 months' imprisonment.  Not the 24 months imposed by the magistrate.

64I make licence orders on Charges 2 and 11.  They were not made by the magistrate.  They should have been but even in the absence of being made, there will be a default provision of three months anyway, as I understand it, but I am going to cancel all licences and disqualify you from driving for a period of three months and I am going to date it from today's date.

65These orders will probably not have any actual effect on you but still I am required to make the order and I am at large in terms of the amount of time I put you off the road. I could put you off the road for 12 months or 18 months or two years but I do not want to do that.  I think that sort of order might actually impede your rehabilitation rather than foster it so I will limit it to three months in each case.

66I think I probably need to repeat also the orders formally on the record.  Let me just look at that.  That is Charge 14 and 16 were marked withdrawn, struck out and so I repeat those orders obviously.

67I have considered the relationship between these two sentences, therefore, that is the 12 months that I am imposing and the 350 days that I am activating under the DTO.  Really, there is no basis in my judgment for there to be full concurrency between the two orders.

68You received 18 months on the drug treatment order, you have served obviously a portion of that and that is why it is activated only to the tune of 350 days but that was serious offending and then you have been committing the offences that have just been described as the "fresh offending" in the currency of that drug treatment order and even that separate offending is occurring on a variety of different dates.  There is simply no warrant for it to be totally subsumed by the 350 days otherwise ordered, indeed quite the opposite in my view.  I think there needs to be a level of identifiable cumulation between the old matter, 350 days, and the fresh offending.

69As I say, I have imposed a term of 12 months imprisonment.  I am directing that 200 days of that sentence of 12 months be served cumulatively, that is on top of the orders made on drug treatment order.  What that translates into then is a total effective sentence as across these two appeals of 550 days.  By my calculations, that is a really a touch over 18 months.  That is the total effective sentence.

70I am going to fix a non-parole and the non-parole is a period of 12 months' imprisonment so it is that period you have to serve before being eligible for release on parole but it is here then that I bring back in those days that your counsel was suggesting I could take into account in the calculation of the drug treatment order activation which I have not but obviously I have to have regard to the fact that you were in custody from the date of the warrant being executed on 27 February and you have been in custody ever since.

71And those two periods, there was a period of 135 days leading into the Magistrates' Court appearance, then a period of 104 days since then.  It is a total of 239 days that you have been in custody and I have to declare those so you have a non-parole period then of 12 months and I declare that you have already served the period of 239 days so you get credit for that period.

72By my reckoning then, you have a period of roughly 126 days, a touch over four months before becoming eligible for release on parole so there is a significant benefit in the appeal having been conducted.  As you see, the previous parole eligibility date was 22 August 2019.  Well, it is much, much closer than that and obviously a sentence lapsed status comes forward into 2019 as well, given the orders that I have pronounced.

73I have told you I have taken into account your guilty plea in terms of the fresh matters.  If you pleaded guilty, I would have given you more obviously.  I have given you an aggregate of 12 months.  In fact I would have given you an aggregate of 18 months imprisonment.  I would have made other orders in terms of cumulation as well but I do not need to trouble myself in relation to those.

74I was going to make a direction by way of custodial management in terms of the bed at Windana.  I think really it is a matter for the Adult Parole Board to keep abreast of that.  I mean, he is still on the waitlist, Ms Ratcliffe-Jones, isn't he?

75MS RATCLIFFE-JONES:  He is, Your Honour, and I also had to make contact with the Parole Board myself on his behalf and keep them updated as to what is occurring.

76HIS HONOUR:  Look, I will put a note on the order in terms of custody management just to alert them to it, that this man is on a waitlist for a bed at Windana and then they will be awake to that and that he has previously been on a drug treatment order but they will know all those things.  They will know the latter anyway but they will know - and you have no problem with me endorsing the order in that way?

77MS RATCLIFFE-JONES:  Not at all, Your Honour.

78HIS HONOUR:  All right.

79MS RATCLIFFE-JONES:  It would be helpful.  Thank you.

80HIS HONOUR:  All right, there are orders for forfeiture and disposal that I have signed so I am ordering the forfeiture under the provisions of the Confiscations Act of the false number plate and I am ordering disposal of the bottle containing the GHB.  I have signed those orders.  I am not going to further slavishly pronounce the formalities of them.  I have made the orders.  They are not objected to.

81Now let me just see if there is anything I have missed out or anything that jumps out of either of you.  I have now pronounced the full order and I have filled in some of the blanks in terms of times and periods, Ms Ratcliffe-Jones.  Is there anything that leaps out of you in terms of any problems with the order or not?

82MS RATCLIFFE-JONES:  Not immediately, Your Honour.  I will certainly be just reviewing the figures just in case but it will just take some time to just get my head around those ones.

83HIS HONOUR:  Yes.  Anyway, if there are any issues, it can always be brought back before me or more significantly any issues in the way it has been interpreted by the authorities but it is plain from each document that they will need to refer back to the other appeal, so they will be related to each other and it is plain that though I am passing a 12 month term on the fresh matters, I cannot be passing a non-parole period of 12 months on that alone.  So I am passing 12 months there.  It is the 350 on the other.  I am cumulating 200 days.  That brings it up to 550 days and then I am making that single non-parole period referrable to that total effective sentence.

84MS RATCLIFFE-JONES:  Yes.  I will follow up as well the calculations just to make sure because in the past there have been occasions where they will say that the person has to serve out the counts of the drug treatment order before them taken into pre-sentence detention but I will certainly confirm, Your Honour, that the release dates and the non-parole dates will match up with Your Honour's intentions.

85HIS HONOUR:  Yes.  It will be plain enough on the order as well that I will sign that - as against that total global sentence, I have declared 239 days so he should be eligible for release - that is my intention, that he should be eligible for release on parole - upon the service of that 12 month period and he has already done 239 days.

86MS RATCLIFFE-JONES:  Yes, Your Honour.

87HIS HONOUR:  So anyway, if it has been misconstrued, then it can always be brought back before and I can try to make it plainer but I have made it as plain as I can.  Indeed I might make it plainer, still I might - though I do not have any written reasons at the moment, I am looking of all sorts of chits and bits of paper and squiggles.  I can direct that my reasons be transcribed and I can provide them to the Adult Parole Board.  That might be of some assistance.  Do you want me to do that or not?

88MS RATCLIFFE-JONES:  At this stage, no, Your Honour.  I am happy just to follow up with the relevant authorities to make sure that the release date is accordant with Your Honour's intentions.

89HIS HONOUR:  Yes.

90MS RATCLIFFE-JONES:  I will also be advising the Parole Board and providing them with the reports et cetera to assist with their decision so I think that should be sufficient.

91HIS HONOUR:  All right.  All right.  Well, I will not ‑ ‑ ‑

92MS RATCLIFFE-JONES:  But I am grateful for the offer though.

93HIS HONOUR:  ‑ ‑ ‑ I will not order a transcript.  If there is, at any stage, a need for that, then you can at least apply for it but - yes, all right.

94MS RATCLIFFE-JONES:  Thank you, Your Honour.

95HIS HONOUR:  Any other matters then that I need to deal with?

96MS RATCLIFFE-JONES:  No, Your Honour.

97HIS HONOUR:  No?  Mr Watt?

98MR WATT:  No.  No, thank you.  That was clear.  Thank you, Your Honour.

99HIS HONOUR:  All right.  Well, you will go down to see your client downstairs?

100MS RATCLIFFE-JONES:  Of course, Your Honour.  Yes.  And I will to see him shortly.

101HIS HONOUR:  So you see now the - what I have said in terms of the desirability really of bringing forward if you can that other matter because it - he would eligible for release on parole prior to that point in time ‑ ‑ ‑

102MS RATCLIFFE-JONES:  Yes, I am going to be speaking to my instructor this afternoon, Your Honour, and hopefully we can get things moving.

103HIS HONOUR:  Yes.  All right.

104MS RATCLIFFE-JONES:  Thank you, Your Honour.

105MR WATT:  If it pleases the court.

106HIS HONOUR:  Yes, all right.  Look, I will just sign those final orders and - all right.  Well, look, that completes the matter then so your counsel will come down to see you downstairs, Mr Dows, and explain all of that.  He can be removed now.  Thank you.

107VOICE (from body of the court):  Yes, Your Honour.

108HIS HONOUR:  All right.  I might just stand down I think and I will come back on the Bench once the appearances have been taken and we are ready to go for the appeal matter.  Yes.

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