Director of Public Prosecutions v Dulic

[2014] VCC 299

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-13-01910
CR-13-01909

DIRECTOR OF PUBLIC PROSECUTIONS

v

TROY DULIC
MICHAEL HEARTY

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	13 March 2014
CASE MAY BE CITED AS:	DPP v Dulic
MEDIUM NEUTRAL CITATION:	[2014] VCC 299

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J Shaw
For Accused Dulic	Mr D Cole
For Accused Hearty	Ms J Pisasale

HER HONOUR: 

1Troy Dulic and Michael Hearty, you have pleaded guilty before me to a series of armed robberies that took place between 25 May and 28 June 2013.  You, Troy Dulic, pleaded guilty to five charges of armed robbery, you Michael Hearty pleaded guilty to two charges of armed robbery.  Now this is not like the Magistrates' Court, gentlemen, where I just give you sentences, I have to actually give reasons for my sentence, so have a seat, all right, because I will be a while and I will tell you when to stand.

2The facts underlying your offending are as follows.  On 25 May 2013 you, Troy Dulic, entered a drive through area of the Prince Wine & Spirits bottle shop in Essendon to which he had been driven by you, Michael Hearty, you waiting in a car around the corner.  At the time, Mr Dulic, you were wearing a balaclava which covered your face, and carried a samurai sword.  You went up to the attendant at the cash register, ordering him to open it, and give you money, seeking the $50 notes.  You were handed all the $50 notes, then demanded the $20 notes, and then ran off to the waiting car where Mr Hearty drove you away.  You stole about $2300 on that occasion.

3The second armed robbery took place about five days later on 31 May when at about nine or 10 pm, you, Mr Dulic, went in to the drive through area of the BWS bottle shop of the Pascoe Vale Hotel in Station Street, Pascoe Vale.  Again you were wearing a balaclava which covered your face and carried a samurai sword.  You ran towards the attendant, stopping about a metre way and demanding money or, "You'll get it."  You were handed cash by the attendant and you grabbed a six pack of Jim Beam and cola cans, two of which fell to the ground.  On that occasion you stole about $300.

4The third armed robbery occurred on 3 June 2013, again at the same venue as the first armed robbery, that is the Prince Wine & Spirits bottle shop, where again wearing a balaclava that covered your face and carrying the samurai sword, you, Mr Dulic, entered the drive through area of the shop and demanded that the attendant hand over all the 50s and 20s in the til, stating, "Hurry up, I don't want to hurt you."  The money was given to you and you then walked away.  No amount was estimated as to the money that was taken on that occasion.

5The fourth armed robbery occurred on 11 June 2013 at about 7 pm, when you, Mr Dulic, ran in to the BWS bottle shop at the Westmeadows Tavern in Westmeadows again wearing the balaclava that covered your face and carrying the samurai sword, approaching attendants, and demanding money, you grabbing the til which was taken out of the register by the attendants and running away, and again no amount was estimated to the court as to the moneys taken.

6The fifth and last armed robbery occurred on 28 June 2013, at Hungry Jacks restaurant in Frankston, to which you were driven by another co-accused Stevie Wallace.  Both you, Mr Dulic, and you, Mr Hearty, were wearing balaclavas covering your faces.  You got out of the car and lay in wait near the drive through window whilst Wallace drove up through to the drive through window as though she were ordering.  The attendant unlocked and opened the drive through window.  At this time it was about 3.50 am, that is in the early hours of the morning.  Once the window was open to take the order the two of you appeared at the window and screamed at the attendant to give you the money.  You, Mr Hearty, then dived head first through the window and in to the premises and you, Mr Dulic, tried unsuccessful to climb through the window.

7You, Mr Hearty, were armed with a tomahawk, and you, Mr Dulic, were armed with a machete.  Footage of this incident captured on CCTV monitors at the scene were played in the court, it was a fairly violent, although short, incident.  Once inside, Mr Hearty, you again screamed at the attendant and forced the til open using the tomahawk which you tried to pass through the window to Mr Dulic, but couldn't get it through.  You then took the til and jumped over the front counter in to the restaurant, which was locked at that early hour of the morning, leaving by smashing glass in the front door and climbing through.  The two of you got back in to the car and were drive by Wallace to your uncle's house, Mr Hearty, in Frankston.

8Both of you were arrested at Mr Dulic's mother's house in Glenroy on 12 June 2013 and police found a machete, samurai sword and balaclavas at the premises.  In records of interview conducted by police with both of you on 12 July 2013 you each made full admissions in relation to the Hungry Jacks armed robbery and you, Mr Dulic, also made full admissions in relation to the other charges.

9The maximum penalty for armed robbery is 25 years imprisonment.  No victim impact statements were filed.  Each of you were aged 20 at the time of this offending and each of you is now aged 21.  Both of you have remained in custody since being arrested in relation to these matters.

10I now turn to the personal circumstances of each of you, beginning with you, Troy Dulic.  As I have said, you are now 21 years old, you were ‑ ‑ ‑

11MR COLE:  I apologise for interrupting Your Honour, he is still only 20, he turns 21 in May.  It is only for that detail.

12HER HONOUR:  No, thanks very much, Mr Cole.  You, Mr Dulic, are 20 and will turn 21 in May of this year.  You are the third of three children born to your parents.  Neither of your siblings have been in trouble with police.  You have an older sister who is married with children and your brother previously worked as a landscape gardener and now runs his own business.  Your parents have lived together for about 30 years and were described by you to psychologist Wendy Northy, whose report, dated - sorry - it does not appear to be dated, anyway ‑ ‑ ‑

13MR COLE:  I believe it is 13 February, Your Honour.

14HER HONOUR:  ‑ ‑ ‑ 13 February 2014 was tendered on the plea, as being caring and supportive parents.  You are particularly close to your mother.  Your older brother excelled at football and is now at a stage where he apparently may be picked up by an AFL club.  You were also very keen on sport when you went to school but have had real difficulties with your eyesight, which has had, in my view, a very significant impact on difficulties you subsequently had with education and with your ability to participate in sport, at which you were also talented.

15You struggled a little with your studies when in primary school and there was no evidence of behavioural disturbance at that time.  You then began secondary school at Box Forest College in Glenroy, where it appears you quickly ran in to difficulties.  It was Ms Northy's view that you have an undiagnosed learning difficulty and also I heard from your mother, who gave most helpful evidence during the plea, that you were bullied because of the very strong eye glasses that you had to wear.  As a result you simply did not cope.  The way Ms Northy describes it is:

16"He was a proud youth and felt embarrassed about his inadequacies.  He states that as he began to fail in class, 'That's when I would stuff up.'"

17By that you meant that you were basically disruptive and you were expelled from secondary school half way through Year 8 for throwing a brick through a window.

18It would appear that, and this is according to your mother, your behaviour was extremely disruptive about this time to the point that she ultimately contacted the Department of Human Services for respite and you were placed in a community residential unit in Thornbury, your mother believing that this was going to occur for a period of days, at the very most.  However, it ended up being a six month period during which time you did not attend school and when, it would appear, you were pretty much allowed to do as you wish.

19I made the comment during the plea and I make it now in these sentencing remarks.  The court sees a number of young people who have been residing in community residential units.  There appears to be minimal supervision.  The experience of this court is that almost inevitably a child in those surroundings gets in to further troubles.  It is not uncommon to find children in the care of the state, in these facilities, developing drug problems, being allowed to stay out at entirely unreasonable hours, and it almost becomes street living in one sense.  Education is almost inevitably disrupted.  In other words a period of time for an adolescent in a community residential unit, in my view, given what I have seen over the years, almost inevitably results in that child developing the behaviours that bring them in to contact with the criminal justice system.  Certainly that was the case with you.

20By the time you returned home you had developed a drug problem.  You recommenced secondary school in Year 8 at Erinbank, which had been organised by your parents, but by the end of the year you were locked up in a youth training centre, due to offending that began whilst you were away from home and which continued on your return home and which has continued ever since.

21Your drugs of preference have been marijuana and, most destructively, ice.  That drug use commenced from your mid-teenage years and has continued right up until you were placed in the MRC as a result of these armed robberies.  Indeed it is perfectly clear that you offended in this extremely violent and dishonest way, over the period of the months that I described, because of your, what I would have to describe as, substantial ice habit, and that you undertook these armed robberies in order to finance your drug habit.

22You have got an extensive prior criminal history dating back to 2008.  Your offending comprises of burglary, intentionally damaging property, theft of motor vehicle, assault and resist police.  You have breached probation, you have also been sentenced on three occasions previously to a youth justice centre for use of cannabis, for affray, recklessly causing injury, reckless conduct endangering serious injury, and most concerningly for armed robbery on more than one occasion.

23So, the situation was, when you came to court, Mr Dulic, that it appeared there was very little that could be said that was positive on your behalf.  Fortunately for you, and most unusually in the experience of this court, it became clear during the proceedings that despite your appalling criminal history and despite the offending you engaged in on this occasion, you come from a very good family.  Your mother, as I said, gave evidence on the plea.  She was extraordinarily helpful.  It would appear that whilst things started off well with you, your problems with your eyesight which got in the way of any sporting ability or sporting aspirations that you had, also interfered grossly with your educational opportunities, and you have basically turned to drugs as a way of coping with your life ever since, which is not unusual for a teenager in your position to do.

24The problem is, you have run through the entire range of dispositions that a court can offer a young person, courts always being very anxious to keep young people out of custody.  Ironically gaol seems to have done you a lot of good.  You are no longer using ice.  It would seem that in fact the period of time that you have spent in custody is the longest time you have spent, since you began using drugs, in a state of sobriety insofar as illicit substances are concerned.  You have used your time well, you have been trained in metal work, you have had work in the system, and in fact your mother spoke very positively of your progress and of the fact that she has rediscovered the son she always knew she had who was completely obscured from her by the drugs that you were using.

25One of the most terrible things for parents of children who use a drug like ice is they have to cope with their terrible erratic moods.  Over the years it is quite clear, and I am satisfied, you have caused your mother immense pain and grief and that when you have been living with her, when you have not been in custody, you have been an extremely difficult person to have in the house because of your drug use.  It is well known that ice interferes dramatically with people's moods.  They can be violent, they are touchy, angry, difficult to live with.  The morning after the big high the night before, can leave them in black moods where they are irritable, where they pick fights, so that generally living with a person who engages in the sort of drug use that you did is almost difficult and traumatic experience. I am satisfied that that your drug use absolutely escalated once you were released from the youth justice centre - I note that you were on parole from the youth justice centre at the time you committed these offences - it just simply rocketed up, and basically matters had to come to a head that they have.

26The sort of offending that you engaged in, although extremely serious, was typical of youth offending.  That is it was spree offending and it was heedless offending and it was going go on until you were caught.  Ultimately you have run in to the brick wall and you have now spent something just several months short of 12 months in adult custody.

27Because of your age I had you assessed for suitability for a youth justice centre sentence.  It was not argued before me that anything other than a custodial disposition was appropriate in your case.  I received what I regarded as a very full and helpful report from the youth justice officers, that is Ms Wirasinghe, a youth justice case manager from Preston, and her team leader Robin Skerry.  It was noted that whilst you were serving periods of detention at a youth justice centre there were a lot of management issues with you.  You got in to assaults, you got in to fights, there were problems with you using drugs, and indeed during the plea I expressed some concern about the appropriateness of youth justice centre for you.

28I am extremely impressed with the progress that you have made in gaol.  I am impressed with the fact that you have kept yourself busy, I am impressed with the fact that you have stayed off drugs, and I do find that you have good prospects of rehabilitation.  You continue to have the support of your mother and most importantly I am satisfied that you care very much about your family, and that you particularly care about your mother.  During your plea your mother produced a letter that you had written to her which I found to be compelling material supporting what I have said.

29Basically the letter finished up with:

30"So how is Travis and Dad?  Tell them I miss them and love them dearly and can't wait to get out and spend more time with you guys.  I'm starting to realise that family is everything and if I keep going the way I am I might lose you."

31It ended with, in capital letters, love you Mum.  Now as I said, this court rarely sees people who offend the way you do who have the sort of family you have got.  Usually it is young people who have got no family support, who have got drug addicted parents, or parents who do not care, or parents who have been abusive.  You do not have that.  You have a terrific family and it is perfectly clear to me that you care about them a great deal. 

32So in those circumstances I am prepared to find that you have got good prospects of rehabilitation, but I accept the youth justice centre report, which is that a youth justice centre detention is not going to be appropriate for you.  You need a lot of structure.  You need to be kept busy and you need to have a sort of disciplinarian environment in the meantime.  That is to ensure you stay off drugs, that is to ensure that you stay on the straight and narrow and hopefully whilst you are undergoing the sentence that I am about to impose upon you you will learn a bit about self-discipline yourself.  It does seem to me that you do know what you have to do to lead a satisfying life.  You have got the problem that your education did not go very far.  You have got the problem that you have been addicted to ice over a long period of time.  These are matters that you can attend to.

33I make the comment specifically that in my view you are a young man who should be placed in the youth unit at the gaol.  I think the programs there would be entirely suitable for you and I think both you and the community would benefit from your placement there.

34In sentencing you I take in to account your relative youth, what I find to be your good prospects of rehabilitation, your very positive progress in gaol, the strong family support you continue to enjoy, and your early plea of guilty.  I therefore sentence you as follows, could you stand up please?

35On each of Charges 1 - 4 you are sentenced to 18 months' imprisonment.

36On Charge 5 you are sentenced to two years imprisonment.

37The base sentence for sentencing will be the sentence imposed on Charge 5.  I order that six months on each of the sentences imposed on Charges 1 - 4 be served cumulatively to the sentence imposed on Charge 2, giving a total effective sentence of four years.  I order that you serve a minimum term of two years.  I direct that - how many days is it now?

38MR COLE:  Two hundred and forty four, Your Honour.

39HER HONOUR:  I direct that 244 days of this sentence have already been served by way of pre-sentence detention.  Now, four years with a two year minimum might seem like a massive sentence to you, Mr Dulic, but without those particular mitigatory, or helpful, factors that I have mentioned you would be looking at six years with a four year minimum, in my view, even on a plea.  Because you are young and because you are doing well you are going to be spending far less time in gaol than would otherwise be the case.  Armed robbery is considered to be an extremely serious crime and you are out of the Children's Court now.  That last armed robbery in particular, where you were armed with an incredibly dangerous weapon, that machete, involved a high degree of violence in my view.  When you offend the way you have been, and that included going back on two occasions to the same venue, I have to look at what are called general deterrent aspects in sentencing, that is I have to sentence a person in a way that sends out a message to the community that this sort of offending will not be tolerated.  One of the problems with an armed robbery is it involves so much violence.

40I also have to take in to account protection of the community.  Even though I did not receive any victim impact statements I have got no doubt that the young woman at Hungry Jacks, and the people who were the attendants at the other bottle shops where you committed the armed robberies, would have been left in a terrible emotional state afterwards.  Imagine if it was your brother or your sister who was working in the jobs that these young people were at the time you committed these armed robberies.  They would go to work scared every day.  Usually people who work in those places earn very little money, they are very easy targets, and the court has to protect such people.  This is why I have responded in this way.

41So, Mr Dulic, you have told Ms Northy, you have told youth justice officers you want to stop offending and that you want to straighten out your life.  This is your opportunity.  This is also a demonstration to you as to what will happen to you and what your life will be like unless you stop behaving in this way.  This is a major sentence and it is an adult sentence that you have now received.  If you commit any further offences in the future this appearance in the County Court and this sentence that you have received will be only your record and you can only expect to be gaoled every time you commit an offence, do you understand that?

42OFFENDER DULIC:  Yes.

43HER HONOUR:  Basically your offending pattern has been one where it is like a graph that has gone up, up, up, up, up.  You know along the way you have been given so many chances by the courts, you have been given youth attendance orders, you have been given probation, you have been given good behaviour bonds and you have been given youth justice centre detentions.  You have ignored them all.  You have ignored all those chances.  You have gone on to offend, and offend, and offend, and it now has to stop.  You want it to stop and the court has to make sure it stops.  I think you have probably got the brains and the insight to realise that this sort of offending, that sort of drug use, has to cease or you are going to spend large portions of the rest of your life in gaol.  Do you understand?

44OFFENDER DULIC:  Yes.

45HER HONOUR:  Thank you, take a seat.  Pursuant to s.6AAA I declare that had you not pleaded guilty I would have sentenced you to a term of imprisonment of five years and ordered that you serve a minimum term of three years.  That is not what I am giving you, Mr Dulic, I have to say what would have happened to you if you had not pleaded guilty.  Because you have pleaded guilty you are getting four years with a minimum term of two years.  If you had not pleaded guilty I would have given you more.  Also I can see you - it is all right, he is not getting more, it is four with the two, and you have got, I think, on estimation, something like 14 months to go.  All right?

46OFFENDER DULIC:  OK.

47HER HONOUR:  Thank you.

48MR COLE:  As Your honour pleases.

49HER HONOUR:  Now, I turn to you Mr Hearty.  You are now 21 years of age and you are also - you can have a seat, Mr Hearty, I will tell you when to stand.  You also, like Mr Duric, come from a good and supportive family.  Your mother gave very helpful evidence on the plea and it appears that you have had longstanding problems yourself, which has interfered, as it did with Mr Duric, in your education.  Just excuse me.

50

MR COLE:  My apologies for rising Your Honour, but I think I saw Mr Hearty indicating he needed to go to the toilet.  I assume it is not going to be a short sentence, Your Honour is always very thorough, so I thought I

would ‑ ‑ ‑

51HER HONOUR:  That is a nice way of saying wordy, Mr Cole, I appreciate that.

52MR COLE:  Certainly not Your Honour.

53

HER HONOUR:  Mr Hearty, of course, I will stand down while

you ‑ ‑ ‑

54OFFENDER HEARTY:  Thank you.

55HER HONOUR:  I will remain here while you go to the toilet.  Thanks for letting us know.

56MR COLE:  May I approach Mr Dulic, at this time, Your Honour, just to reinforce the sentence, so that he understands.

57HER HONOUR:  Of course.

58OFFENDER HEARTY:  Thank you Your Honour, I appreciate it.

59HER HONOUR:  No, that is quite all right Mr Hearty, that is fine.  All right, you were one of two children born to your parents, who separated when you were very young.  Your mother re-partnered and your mother's partner has essentially been your father over the years.  It appears you demonstrated behavioural problems from a very early age.  You were diagnosed with attention deficit disorder and from the age of five were placed on dexamphetamine to counter that.  At the age of nine you were taken to the child adolescent mental health service at the Austin Hospital because of your disruptive behaviour.

60This obviously interfered greatly with your powers of concentration and your capacity to be properly educated.  You met Mr Dulic when you two attended Box Forest High School.  From your early teens you began smoking marijuana, you did not engage at school, and at the end of Year 8 you were suspended and simply did not return to school.

61You had begun a mechanical subject in Year 8, which you liked, and you worked in a mechanical job for six months.  You were promised an apprenticeship at that firm, but this did not eventuate.  You were then unemployed, taking on unskilled labouring jobs through family friends, and then began bricklaying with a friend which work you discovered you really enjoyed.  At the age of 16 you started an apprenticeship but were unable to handle the academic side of this and you stopped after about 12 months.  How long, sorry, did I get it wrong?

62OFFENDER HEARTY:  No I didn't stop, miss.

63HER HONOUR:  Did you get your apprenticeship?

64OFFENDER HEARTY:  I'm second year.

65HER HONOUR:  I am just talking about the formal part, all right?  Bear with me and see if I have got this right, all right?  So you stopped your apprenticeship after about 12 months but you have always kept on working as a bricklayer.  This has been casual work for you, you were essentially taken on on a contract basis.  What is interesting about you, Mr Hearty, is that when you are working it seems you are something of a fanatic, you will work very long hours, and indeed your preference is to be employed seven days a week, 12 hours a day.  When you are not working, which is often the case because your work stops when jobs do, you very quickly become bored and that is when trouble begins.

66You began dabbling with ice at the age of 13 or 14.  You continue to use ice and indeed you were involved in these armed robberies, as was Mr Dulic, in order to finance your habit, but when you are working you do not use ice.  This is incredibly difficult for your family, as well.  It may well be that you have somewhat of a predilection for ice because of the years that you have been on medication for ADHD, but it is one extreme or the other with you, you are either completely straight and working, if I can put it this way, like a maniac at whatever job you have got, then when you stop you have nowhere for this energy to go and that is when use of ice and unfortunately sometimes Xanax sets in.

67Along the way, unsurprisingly, given the pattern of behaviour that you have developed over the years, you too, like Mr Dulic, have been in an amount of trouble with the law, beginning in 2010 with burglary, when you were before the Children's Court.  In February 2012 you were sentenced to 22 months in a youth justice centre for armed robbery.  Indeed, like Mr Dulic, you were on youth parole at the time you committed these offences.  The problem is, of course, that again, like Mr Dulic, it appears that youth parole simply did not have the appropriate effect upon you and you swiftly relapsed in to ice use.

68Again, you have done well in gaol, and again, ironically, gaol has been the best thing for you.  Again, it has kept you off the use of this incredibly destructive drug for probably the longest period that you too have remained off it since you began using it.  I did not make the comment in my remarks with Mr Dulic but I make them with you, Mr Hearty.  Ice is an incredibly dangerous drug, it is clearly everywhere.  It is incredibly addictive and its danger lies in the fact not only as regards the behaviour of the person who is using it, it usually leads to violent offending, and it certainly leads to very disruptive emotional behaviour. 

69It also has the power, and I hope both of you are listening to this, because it particularly affects young men, whose brains do not stop developing, surprise, surprise, until they are 29.  It can affect the way your brain grows.  It can physically affect your brain.  It can leave you with a mental illness.  Usually schizophrenia.  We have seen, in this court, so many men who have used amphetamine or ice on a long term basis and they have a permanent mental illness.  Now that is what happens if you use that sort of drug for too long.  I really want you to remember that, that is why it is such a dangerous drug.

70So what I have as a sentencing proposition in front of me with you, Mr Hearty, is as I said this Jekyll and Hyde, the mad worker and the mad ice user.  Your mother gave evidence of precisely what I am talking about when she spoke in court, that when you are working you are terrific, when you are not you are appalling.  What is new in your situation is that you have become a father and it is quite clear to me that - and I am satisfied in terms of the submissions made by your defence counsel, that this has made a huge difference to you.  Your mother is very involved with her grandchild, your partner has attended court, and I am also satisfied that you too are a person who, when you complete your gaol sentence, will come out to a stable situation, a situation of family support, and a child that you are now responsible for.

71I am also satisfied that when you come out of gaol you will be very energetic in, obtaining work.  Now, economic times, employment times are not great at the moment, you may have trouble doing this, and achieving the sort of work that you want.  You too have done fairly well in gaol although there have been management issues with you where you have clashed with some of the prison guards and as a result have had limitations placed on your visits and have spent time in lockdown, which I am sure you found very difficult.

72The challenge for you, Mr Hearty, is going to be that if you are not working what are you going to do with yourself?  How are you not going to take it out on everyone else around you, by using ice, by being bored, by being ill tempered?  No one can guarantee that you are going to have work.  The other trouble is that if you do have work now you cannot be as obsessed with it, even though you enjoy it as a form of release, because you have got a partner and a child to attend to.  So somehow you are going to have to learn how to manage yourself when you are not working.  Bricklaying day and night, night and day, is not the long term solution to your difficulties.

73During the plea I managed to speak to both of you and I was impressed with the way in which each of you spoke to me and I also am impressed by the fact that neither of you has sought to shy away from what you did.  Of course it would have been a bit hard particularly in relation to the last one, which was captured in glorious technicolour on film, so it was pretty obvious who was who, but this again, and I say this to you Mr Hearty, is very nasty offending.  You have probably left, even though I have not got victim impact statements, a couple of people with huge anxiety problems and lives that seem a lot less safe and a lot less secure than they did before, and I have simply got to ask you, as I did Mr Dulic, to imagine that it was your mother, or your sister, who was behind that counter at Hungry Jacks on that day, and how you would feel about people who did to that young woman what you did to her on that day.  She must have been utterly terrified, the whole incident looked utterly terrifying from what I saw on CCTV footage.  I would like you to bear that in mind.

74So, you are still a young person, so that prospects of rehabilitation are important to this court and I do find that you do have good prospects of rehabilitation because of the support that you enjoy and because of your capacity to stay off of drugs and to find work.  With neither you nor Mr Dulic is it going to be plain sailing.  All the services in the world can be offered to people like you, but until you take the decision yourself, until you take responsibility for yourself, nothing is going to change.

75Your problem, Mr Hearty, is going to be the fact that you get bored so quickly and have nowhere for your energy to go when you are not work.  As I said repeatedly during my sentencing remarks, you are going to have to handle that somehow.  I do not know whether you can sort of take up wood chopping as a hobby or something like that, I do not know what it is going to be, but you are going to have to find something.  You are also probably, both of you, going to have to engage in the exercise which most men hate, particularly young men, you are probably going to need some psychological counselling.  You can obtain that by going to your GP and getting referred to a mental health plan and you need to have 12 sessions with a psychologist.

76Both of you are going to need that sort of support.  You are actually going to have to talk about what makes you tick and why you turn around to drug use and how you can ween yourself of it.  You, Mr Hearty, need to talk about what strategies you need to develop so that you do not turn to ice as soon as boredom sets in.  When you get out, Mr Hearty, life is going to be a bit difficult, there is going to be a crying baby.

77OFFENDER HEARTY:  I can't wait.

78HER HONOUR:  Pardon?

79OFFENDER HEARTY:  I can't wait.

80HER HONOUR:  That is what they all say.  You wait until you are getting up in the middle of the night, and the baby does not want to sleep - babies always seem to want you at whatever is the worst possible time for you.  There is no way around that.  So these are all the matters that you have got to face, but again I am impressed with what has happened in gaol for you, notwithstanding the management issues, you too have undertaken work in metal and you are now working in metal at the gaol, which is exactly what you need.  Again, it is my comment that you are a young man who would benefit very much from placement in the youth unit.  I saw the shake of the head there.

81OFFENDER HEARTY:  There's all young boys there, I'd rather stay with the adults.  There's no trouble in a way.

82HER HONOUR:  All right, I hear what you have to say.  I certainly think Mr Dulic should go to the youth unit, I think that is very important, because of the training programs that are offered to you there, Mr Dulic.  I want you to come out of gaol with something under your belt.  But I hear what you say, Mr Hearty, you would rather stay where you are.  All right, well you will not be staying at the MRC, you will both be moved off.  I had thought perhaps the two of you might want to remain together.

83OFFENDER HEARTY:  If that's possible, but I don't know.

84HER HONOUR:  Well if Mr Dulic is going off to the youth unit, it is a matter for the gaol, I have got no powers of that, you will not be.  All right?  But I still think that the youth unit would not hurt for you either, simply because of the more rehabilitative programs that it has got, and I still think you could use some help with that.  I know you think you are just going to, you know, work your way out of this, Mr Hearty, and it is all going to be right, and you are going to be a top dad and nothing is ever going to go wrong again, but I still think that you need assistance.

85In sentencing you I take in to account your youth, what I regard as your relatively good prospects of rehabilitation, your early plea, and what I do regard as your general remorse for what occurred.  In sentencing you, however, I also take in to account that this is a serious crime.  I repeat the comments that I made in relation to Mr Dulic's sentence, which was that I have to deter others.  When I am sentencing someone for this type of offending I also have to take in to account protection of the community, the community in this particular case being soft targets at the sorts of premises where you engaged in this offending.

86On Charge 1 you are sentenced to 18 months' imprisonment.

87On Charge 5 you are sentenced to two years' imprisonment.

88The sentence imposed on Charge 5 will be the base sentence and I order that six months of the sentence imposed on Charge 1 be served cumulatively to the sentence imposed on Charge 5, giving a total effective sentence of two years and six months, and I order that you serve 15 months before becoming eligible for parole.

89Pursuant to s.6AAA I declare that had you note pleaded guilty I would have sentenced you to a term of three years and six months and order that you serve a minimum term of 27 months before becoming eligible for parole.  So that is what I would have sentenced you to if you had not pleaded guilty, all right?  I declare that the sentence - how many days of the sentence, is it please?

90MR PISASALE:  Two two three.

91HER HONOUR:  Two hundred and twenty three days of this sentence has already been served by way of pre-sentence detention.  Have a seat, all right?

92OFFENDER HEARTY:  Thank you Your Honour.

93HER HONOUR:  That means you have probably got about six months to go, something along those lines.  Now, the other thing I want to remind both you boys is this.  Stand up.  When you get out of gaol you will be on adult parole.  Adult parole is very, very, different to youth parole.  It is very strict.  If you breach it you will be thrown back inside so fast your head will turn.  All right?  Your heads will spin.  That means breaching does not just mean offending again, it means not sticking to the conditions.  So you are now in a really serious situation, you are not being dealt with by youth justice anymore.  So the sorts of chances that you were given under the youth justice system are gone.

94Particularly I want you to understand this, if you commit another offence while you are on adult parole, not only will you have to serve out the time you owe, any new sentence you get will be served on top of that.  The court has got no choice.  So you are virtually doing double time.  Do you understand?  So when you get out on parole you have got to be incredibly careful.  Your chances of going back in to gaol are very, very, high.  All right?  Have a seat.

95Now, I will attend to these other orders.  I do apologise to everyone in court for how long this took but I just wanted to get this done today.  Now, what have I done with all those forms that you gave me?  There they are.  I am going to - application has been made for - is it retention?

96MR SHAW:  Retention in relation to Mr Dulic.

97

HER HONOUR:  Retention of the forensic sample obtained from

Mr Dulic.  Now, with Mr Hearty I am going to allow police to take an intimate sample.  So Mr Hearty can you stand up, I will explain what that means.  Police will come along and they will swab your mouth.  I need to tell you that if you resist police doing this police may use reasonable force in obtaining that sample, all right?

98OFFENDER HEARTY:  Miss - um, Your Honour, I've had about five of them done.

99HER HONOUR:  Have you?

100OFFENDER HEARTY:  Yes.

101HER HONOUR:  Well now you are going to have six.  They have clearly lost them all.

102OFFENDER HEARTY:  All right.

103HER HONOUR:  So have a seat, it is going to happen again.  So you know the score?  Good.  All right.  I am also signing a disposal order for the machete and the - all right, done.  Thank you, I am sorry again that the process has taken so long but it is done, here are the orders now.  Ms Dulic and Ms Hearty thank you very much indeed for your attendance at court and for your assistance, it was really invaluable.  It gave me a terrific insight in to both your boys.  It is not a happy thing that they are where they are but hopefully it is the end of the road.  Both of them needed to run in to a brick wall and they have.  It is really important that they continue to enjoy your support, they are very lucky to have these strong mothers, and loving mothers, who stay in their lives and continue to support them, I think they are both aware of that.  I wish you all very well indeed and I hope I never see you again.  I am sure you want to see me about as much as I want to see you again.  Both boys, you can both have good futures, I hope this is the last time that either of you ever appear before a court.  All right?  You have both got a great deal to offer the world and I wish you good luck in how things go in gaol and once you get again.  Thank you very much.

104MR COLE:  Your Honour I just wanted to apologise for an oversight too, I should have indicated the writer of that report for Mr Dulic is present in court, Ms Wirasinghe.

105HER HONOUR:  I'm so sorry ‑ ‑ ‑

106MR COLE:  It's my fault for not alerting Your Honour to that.

107HER HONOUR:  I'd like to compliment you on the report I thought it was terrific.  It was extremely helpful, it covered everything that I needed to turn my mind to.  Yes, one of the better ones that I've received, so thank you very much indeed for that.  All right.  Thank you very much, yes, we'll stand down, thank you.

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