Director of Public Prosecutions v Elliott, Desmond
[2012] VCC 1929
•3 December 2012
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-12-01745
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DESMOND ELLIOTT |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 November 2012 | |
DATE OF SENTENCE: | 3 December 2012 | |
CASE MAY BE CITED AS: | DPP v Elliott, Desmond | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1929 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence
Legislation Cited: Sentencing Act 1991
Cases Cited: R v Mills [1998] 4 VR 235; DPP v Lawrence (2004) 10 VR 125;
R v Verdins (2007) 16 VR 269
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr D. Cronin | Office of Public Prosecutions |
| For the Accused | Mr B. Lindner | Ann Valos |
HER HONOUR:
1 Desmond Elliott, you have pleaded guilty to one charge of recklessly causing serious injury. The maximum penalty for that offence is fifteen years’ imprisonment.
2 This crime arises out of events which took place on 22 March 2012 between yourself and the victim of your offending, Gurpeet Singh, a person unknown to you.
3 It is not necessary for me to recount in great detail the facts of this matter as they are on transcript, the matter having been opened in some detail by the learned prosecutor. I proceed to sentence you on the basis of the facts as summarised by the prosecutor and discussed during the course of the plea hearing. For present purposes, I simply say that the facts in this case are most serious and disturbing.
4 An aggravating aspect of your offending involved the use of a weapon, being a wooden bat.
5 The victim of your offending has suffered considerably, and I shall return to pass some remarks on that subject shortly.
6 I turn to a summary of your offending. At the time of your offending, you were 18 years of age, and at time of sentence, you are also 18.
7 On 22 March 2012, you were at home with friends at your house celebrating your 18th birthday. It appears you were intoxicated. After consuming alcohol at the house, the group of which you were a part walked to the shops near your home and were standing in a laneway at the rear of the shops. At the time, you were in possession of a home-made baseball type bat.
8 The complainant, Mr Singh, owned a business located on the corner of Bladin Street and Whittaker Avenue in Laverton. The rear of his shop backed onto a laneway where you and your friends were.
9 At approximately 9.27 pm, Mr Singh opened the gates from the backyard of his business into the laneway. As he did so, he noticed two young men and two young girls in the laneway. He asked the group what they were doing and one of the males asked him what he was doing. Mr Singh told that male he was going to close his gates and go home.
10 After driving his car into the laneway, Mr Singh got out to shut the gates. His employee was seated in the front passenger seat of the car. Whilst Mr Singh was bending over closing the gates, you walked up behind him and struck him to the right side of his head with the bat you were carrying at that time. The bat hit Mr Singh to his left eye.
11 Mr Singh, who was bleeding from his eye and his nose, called 000 and then walked to a nearby pizza shop where an ambulance was called. He was transported initially to Werribee Hospital, where he underwent emergency surgery, before being transferred to the Royal Melbourne Hospital, where he underwent further surgery.
12 As a result of your assault upon Mr Singh, he received the following injuries: a left orbital blow-out fracture, nasal fracture, globe rupture of the left eye, notable lens dislocation of the left eye, and stretching of left optical nerve. In hospital, Mr Singh underwent emergency surgery and follow-up surgery for a left ruptured globe with comminuted open fracture of left orbit and fracture to nasal bones. In surgery on 23 March 2012 the globe rupture was repaired.
13 Mr Singh had a further eight reviews in relation to his left eye and underwent further surgery on 12 April 2012, where repair of total retinal detachment was unsuccessful. Mr Singh has only light perception in his left eye and his eye may need to be removed, consistent with the statement of Dr Ng, Ophthalmology Registrar. Mr Singh also makes reference to his eye injury in his victim impact statement, to which I shall later refer. Mr Lindner conceded that injury sustained by Mr Singh to his left eye as a direct result of your assault upon him with the bat had led to permanent injury of his eye.
14 Police attended at your home on 13 March 2012, at which time you were arrested and an imitation firearm was located beneath your bed. For completeness, I state this is not before me as any charge and you are not being sentenced for that.
15 You were taken to Altona North Police Station where a record of interview was conducted with you in two parts. In the initial part of the interview, amongst other things, you said Mr Singh was staring at you and you hit him. You said you had drunk a slab of beer by yourself between 7.00 pm and 11.00 pm. You said you were drunk. You knew you had hit him and you regretted it.
16 You described the incident in the first part of the interview as:
“…like walked to each other. I swung the bat because I thought he was gonna hurt me ’cause he was walking at me too. I didn’t know that he wasn’t gonna hit him when I found out afterwards. I don’t know, it was too late already, swung the bat and hit him”.
You described the bat as being made of wood, a bit of old wood that you made. You told police you went to hit him in the arm, but he went down a bit and it got him in the face somewhere. You described you used the bat’s own weight, that you did not full swing it hard, just let the bat do its work. You described that the next day after the incident, you burnt the bat. You described in this first part of the interview that your thoughts were that you might as well get him before he got you because he was walking at you. You said you hit him because you thought he was going to hit you. At Question 435, you asked if the guy was all right and said you “fucked up”.
17 As I previously stated, this interview was suspended and then re-commenced. In the second part of the interview, you made admissions to the circumstances of the offending, describing it somewhat differently at that time. You agreed there was no walking towards you as you had previously stated. You said he turned around and you hit him. You said you gave a different account in the first part of the interview because you did not want to get locked up. You said your intention in hitting him was to scare him. You felt like a dog, and you should not have done it. You said, “I regret it, if that’s what you mean”.
18 Your actions were cowardly and despicable. You had no argument or background with Mr Singh. Given the actions by Mr Singh, specifically his car initially being behind locked gates at the rear of his shop, I do not accept the suggestion by Mr Lindner this was a case of mistaken identity. There was apparently an altercation earlier that night with some other males in a car but nothing to suggest it involved Mr Singh.
19 You indicated your intention to plead guilty at a committal mention in June 2012 and also, of course, pleaded guilty to this offence before me. You are entitled to have that fact taken into account in your favour and I do so. The community has, by your plea of guilty, been spared the time and cost of a trial and witnesses, in particular the victim of your offending, have been spared the ordeal of having to give evidence upon your trial. Further, I take into account in your favour you indicated early your intention to plead guilty to this charge. I note that in the record of interview, you acknowledged you were the one who hit Mr Singh with the bat when you were spoken to by police in the interview on 30 March 2012, although initially attempted to deflect blame onto Mr Singh.
20 In the circumstances, I am prepared to accept that your plea of guilty indicates remorse for your actions, that you stated such in the record of interview and had further expressed your remorse to your psychologist, Alison Mynard.
21 Mr Lindner, on your behalf, conceded your offending was serious. He urged that I accept the material reflected that this was a case of mistaken identity. He took me to various aspects of the record of interview. As previously stated, I have concerns in relation to that, as I discussed during the course of the plea hearing, and the transcript of the hearing will reveal that discussion.
22 Mr Lindner submitted that on the occasion of this offending, you were drunk, having consumed a significant amount of alcohol. You had not taken your medication, and acknowledged that in your record of interview. From the material, it is clear you declined your medication on this occasion.
23 You described that the reason you had the baseball bat with you on this occasion was that other youths had come to the house prior to this incident and that you left the house at a later stage in order to further remonstrate with those youths. Mr Lindner submitted you were not the one who took the baseball bat from the house, rather, it was one of your friends. Whether or not that be the case, ultimately it was you who had the bat and were the one who hit Mr Singh. Whilst I accept you were adversely affected by alcohol, in your own answers in the record of interview, you stated you were specifically aiming for Mr Singh’s arm at the time you wielded the bat.
24 It was ultimately your decision to drink alcohol on this particular occasion and your decision not to take your prescribed medication. You knew your medication was to calm you down. I do not proceed on the basis that you specifically refused your medication, knowing it would make you more agitated.
25
In relation to your alcohol consumption, I do not consider it to be mitigatory of your offending, but rather providing some background to it. For completeness, I state I do not regard it as an aggravating feature either.
I note, in relation to your prior Court appearance on 23 August 2010 at Sunshine Children’s Court, there was no material before me to suggest that involved excessive consumption of alcohol by you on that occasion.
Mr Lindner, perhaps wisely, did not seek clarification of this with you.
26 Mr Lindner took me to a number of extracts in the record of interview where you expressed your sorrow for your behaviour.
27 It would also appear, from the record of interview and from your instructions to Mr Lindner, you realised you had injured Mr Singh to his face and nevertheless, you left the scene without offering him any assistance. It was not until question 431, you eventually asked about Mr Singh’s state of health. You did say you were sorry in the record of interview and that you “shouldn’t have done it”.
28 You have a prior Court appearance at Sunshine Children’s Court on 23 August 2010, where you appeared on a charge of unlawful assault, criminal damage and discharging a stone to cause injury/danger, and were without conviction released on an undertaking for a period of 12 months, with a condition you be of good behaviour and continue to attend Hand Break Turn and accept support of Disability Services. Brief details were provided, based on your self report in relation to that offending. You do come to Court with a prior criminal history, albeit only one Court appearance. It was, however, unfortunately also for an offence of violence, although not of the same seriousness as your offending before me.
29 Mr Lindner referred to your personal history and circumstances. As I have previously stated, you are 18 years of age at the time of sentence. You are a young offender as defined by the Sentencing Act 1991. As such, the principles in R v Mills [1998] 4 VR 235 apply when sentencing you.
30 I am conscious that your rehabilitation is the primary sentencing consideration, given your young age. However, I note a number of authorities that have referred to the sentencing of young offenders, and I shall refer to these later in these sentencing remarks.
31 You attended Laverton Plains Primary School, ceasing your education there at Grade 5, and as a result were unable to read and write.
32 You attended Visy Care for approximately one year before returning to Laverton Secondary School, leaving before Year 8. Since leaving school, you have not had any work until most recently.
33 By way of further material, regarding your background, a report from Ms Alison Mynard, Clinical Psychologist, dated 18 September 2012, was before me. Ms Mynard referred to your background as well. You were the youngest of four siblings. You described your childhood negatively, describing your father as consuming alcohol on a daily basis. It was difficult for Ms Mynard to obtain detailed information from you or your mother about your childhood. I was told by Mr Lindner your parents separated 26 years ago.
34 You said you no longer associated with any of your friends who were with you at the time of this offending.
35 You described having been in a relationship with a young girl for some time and that she had become pregnant earlier in the year. Unfortunately, she miscarried. You broke up with her just prior to this offending. You further described another girlfriend when you were approximately 14 years of age.
36 Turning to your medical history, from birth to the age of 3, you had fluid behind the eardrums which apparently was not treated properly for many years. You were often in pain and could not hear at times. Apart from an incident where you reported you had been stabbed in the back of your ribs when you were younger, no other medical problems were noted.
37 You said you hated primary school and secondary school, and struggled academically. You would misbehave at school. Since leaving school, you had not participated in any educational or vocational programs or work (it seems until recently). You were largely illiterate.
38
Turning to your substance use history, you described having used cannabis daily since you were 8 years of age. You claimed you ceased cannabis use several months ago, deciding cannabis was not good for you any more. You also claimed you had been smoking ice for about a year, and said you had given this up several months ago, at the same time you ceased your cannabis use. You further described that you would drink alcohol daily from the age of 13, again until a few months ago when you ceased that, consuming alcohol occasionally on weekends now. You said you were scared of the offence you committed and of the consequences both for Mr Singh and for yourself. That had triggered your cessation of substance use. In
Ms Mynard’s opinion, however, she believed the amount and frequency of your overall substance use may have been exaggerated by you in your self report to her.
39 Turning to your mental health background, you described getting angry easily. You struggled to take any responsibility for your actions. You said you stay at home now, which was “better than getting into trouble”.
40 When you were approximately 14 years of age, your mother took you to a psychiatrist at the Royal Children’s Hospital, at which time you were given a prescription for Catapres (used for treatment of anxiety). No other treatment was offered. You said you had ceased taking that medication.
41 You were also, in the past, assessed by Centrelink for work readiness, although you said you were not informed of the results. You had been to a counsellor for a while when you were younger.
42 At presentation, in the opinion of Ms Mynard, you appeared to exaggerate your substance use and did not provide details about how you detoxed from those substances. You were closed about your family life and, in her opinion, you appeared to be holding information back. You had very little insight into your mental health difficulties and poor judgment in relation to decision making in your life. These matters, in my opinion, are of concern when determining your prospects of rehabilitation.
43 You said you had been prescribed Catapres about four years ago. You described yourself as a “worrier”. Ms Mynard administered the Depression, Anxiety and Stress Scale (“DASS”) assessment tool to measure symptoms and severity of depression, anxiety and stress. You displayed mild stress, anxiety levels and severe depression. You described you used to be more anxious. You now felt irritable, low in your mood and struggled to be hopeful about the future. In her opinion, you likely met the DSM-IV criteria for dysthymic disorder, a condition similar to depression but less intense. You had experienced mood problems in the last four years.
44 In my opinion, the principles in R v Verdins [2007] 16 VR 269 are not enlivened by the report of Ms Mynard.
45 Turning to your cognitive functioning, you struggled to express yourself and Ms Maynard thought you may have had an intellectual impairment. As such, she administered the Wechsler Adult Intelligence Scale 4 (‘WAIS4”) assessment test. You scored in the average range of functioning overall, although had lower scores for working memory and low average ranges of verbal comprehension. You struggled with verbal reasoning, problem solving and abstract thinking. Your most prominent weakness was your working memory.
46 Turning to your offending, before me you said you felt bad about it.
47 In her opinion, Ms Mynard concluded her impression was you were not particularly trusting of her and the process of assessment and that you were holding certain information back, possibly, she thought, about your family or childhood experiences and substance use. You displayed attitude and behaviours indicating your struggle to trust others.
48 Regarding your education, in her opinion, it appeared you “slipped through the cracks” in terms of assessment and treatment or individual follow up in primary school. Ms Mynard concluded it was difficult to accurately assess your issues without there being a trusting therapeutic relationship. She noted you appeared to have poor impulse control, difficulty regulating your emotions and were easily led by your peers with low insight into those problems. You lacked direction and role modelling by your parents. These matters I find troubling. You obviously require assistance in these areas.
49 In the opinion of Ms Mynard, you appeared to be young for your age, that you currently lacked guidance, role models and direction in your life. A number of recommendations were set out at the end of her report, on p.5.
50 Also before me was a report from Dr Michael Aufgange of Meadows Medical Centre. He had been treating you since January 2006, when you first attended acknowledging your problems with cannabis use and depression. You said you had had some counselling for anger management a couple of years prior to this report dated 9 August 2012. You had not held down any regular work since you left school in Year 8, being at the time of his report. You told Dr Aufgange you were going to quit your use of amphetamines in the week that you saw him and said you were decreasing your alcohol consumption and your cannabis use. Dr Aufgange referred to his concern that you had a self-destructive component. He was keen for you to have a comprehensive psychiatric assessment and evaluation of your learning ability to enable you to set some goals and to determine appropriate treatment. Unfortunately, he noted you had eluded that thus far. He described your mother as being supportive and I note your mother was in Court to support you during your plea hearing.
51 Also before me was a brief reference from Mr Bob Southern, undated, which confirmed you had some current employment working full time as a landscape gardener. It was unclear to me whether or not Mr Southern was aware of your Court appearance and the charge to which you pleaded guilty.
52 Mr Lindner submitted there are a number of sentencing considerations. In particular, that you have pleaded guilty and the early stage at which you so pleaded. I have already referred to that, and accept such is relevant in mitigation of your sentence. He further referred to the remorse shown by you in the record of interview and expressed to Ms Mynard. I have already noted that. He referred to the difficult upbringing you had and that you had seen a psychiatrist when you were 14 years of age at the Royal Children’s Hospital, with medication prescribed.
53 Mr Lindner understandably relied heavily upon your age and rehabilitation.
54 Mr Lindner submitted that I should have you assessed for your suitability or otherwise for Youth Justice Centre and also for your suitability or otherwise for a Community Corrections Order.
55 Mr Cronin, on behalf of the prosecution, submitted this was not a case of mistaken identity, that you had watched Mr Singh reverse out from behind locked gates, drive out and then attacked him from behind. Further, he referred to your relevant prior Court appearance involving violence (albeit, as I have said, a different type of offending to that before me).
56 Mr Cronin submitted there needed to be just punishment and denunciation of your offending. In addition, there needed to be general and specific deterrence.
57 This was, he submitted, an unprovoked attacked of a citizen of the community simply going about his own business.
58 Mr Cronin submitted that it was a relevant sentencing consideration that you were young and that rehabilitation would be a dominant factor when sentencing you. Further, he acknowledged your plea of guilty occurred at the first committal stage.
59 I also note and accept that there is nothing pending in relation to you.
60 There was Victim Impact Statement before me from Mr Singh. Mr Singh has suffered considerably in the manner described in his Victim Impact Statement as a direct result of your offending. The Victim Impact Statement of Mr Singh was read into the transcript. He described the difficulty he had following opening his business in December 2010. This injury meant he had to sell his business. He felt as if his life had been taken from him as a result, and felt anger and fear. He had difficulty sleeping and he described in detail the ongoing problems he has in relation to his left eye and the permanent damage caused to it by your offending. The damage to his eye has reduced his ability to obtain employment which he would otherwise have sought. He described your attack as having taken everything from him, and that he did not now have a business and did not have a job.
61 When he first went to the hospital and was told his eye was severely damaged and may need to be removed, he was very stressed about the thought of losing his eye. Operations since had not been able to bring his vision back and his eye shape has shrunken in size, which caused him embarrassment. He said the ramifications of your actions had changed his life. You had injured him emotionally, physically and financially.
62 The effects upon a victim are a relevant sentencing consideration (see s.5(2) of the Sentencing Act 1991). I am conscious, however, I must not allow the effects upon a victim to swamp the sentencing process.
63 I turn to R v Mills [1998] 4 VR 235 and the importance of rehabilitation when sentencing young offenders. The principles in Mills are general propositions and are not of automatic application. Each case depends on its own circumstances, including the circumstances of the offence as well as the offender (see DPP v Lawrence [2004] 10 VR 125) involving a young offender, in that case a charge of intentionally causing serious injury, not the charge before me. Nevertheless, the Court expressed concern regarding alcohol-fuelled violence by young people.
64 In Connolly [2004] VSCA 24, Coldrey J referred to the principles in Mills and stated that:
“No doubt a sentencing court will endeavour to implement these principles as far as it possible in sentencing a youthful offender but they are not to be regarded as immutable. In the context of the variety of fact, situations and offenders with which courts have to deal, such factors as the seriousness of the offences committed (and just punishment therefore); the need for deterrence (specific and general); the offender’s prospects of rehabilitation; and the need to protect the community may need to be reflected in the sentence imposed.”
65 Further, in R v JED [2007] VSC 348 Justice Kellam referred to the relevance of the offender’s young age:
“Your young age is a most relevant matter and the law requires me to take that matter into account. The law recognises that youth and immaturity impact upon both judgement and culpability. Furthermore, the law makes it clear that the community has an interest in the possible rehabilitation of a young offender. In R v Mills, Batt JA expressed his approval of the proposition that the youth of an offender should be a primary consideration for a sentencing court and that usually rehabilitation is far more important than is general deterrence. His Honour pointed out, however, that that was particularly so in circumstances where a youthful offender is a first offender, which is not the case with you. (I interpose, nor are you) Furthermore, in R v Bell [1999] 2 VSCA 223, Batt JA said:
“ ... the general propositions accepted in R v Mills are just that – general propositions. They are, as their terms show, not of universal or automatic application. True it is that they may apply not infrequently, but each case depends upon its own circumstance, including, it is to be noted, the circumstances of the offence as well as those of the offender”.
As is stated in DPP v SJK and GAS [2002] VSCA 31:
“When youth is raised for sentencing considerations, the focus is usually placed upon the offender’s prospects of rehabilitation, but this is by no means the only basis upon which it assumes relevance. For at least a century, the attribution of criminal responsibility and the response in terms of the dispositions handed down upon offenders has increasingly reflected developing ideas and understandings concerning personal responsibility, moral culpability and accountability. In the case of young people, to some extent, the law incorporates an acknowledgement of aspects of immaturity. By reason of the stage of development that an offender may have reached, he or she may not fully appreciate the seriousness and full consequence of the offending actions. However, it does not follow that this is always the situation or that, as teenagers, offenders cannot be held appropriately accountable for their conduct in engaging in serious criminal activity.”
The Court further stated:
“These remarks are not intended to diminish in any way the considerable significance to be accorded to youth and rehabilitation as factors to be taken into account in the determination of the appropriate sentence to be imposed on a youthful offender. They are intended, however, to emphasise that these factors constitute only some in a number of matters that must be taken into account and that, even in the case of a young offender, there are occasions on which they must give way to the achievement of other objectives of the sentencing law.”
66 In Nancarrow v R [2010] VSCA 300 the Court, referring to Mills, stated:
“As has often been pointed out, Mills is not authority for the proposition that in the case of youthful offenders, rehabilitation is invariably the overriding factor in sentencing. As Maxwell P said in R v Wyley (2009) VSCA 17.
... what Mills did, in my respectful opinion, was to draw attention to the great significance for sentencing of looking to the offender’s future, as well as to the past conduct for which the offender is being sentenced.
Mills constantly reminds sentencing courts, and this Court on appeal, that there is great public benefit in the rehabilitation of an offender and in maximising the prospect that the offender will carry on a law-abiding life in the future. But that consideration is not unique to young offenders. Nor is there any one correct answer as to how the balance is to be struck between that consideration and others which may point towards a period, or a longer period, of imprisonment, rather than a non-custodial sentence.”
67 I am also required to balance conflicting sentencing considerations and determine the weight to be given to those considerations. In this regard, the Courts have referred to the offence of recklessly causing serious injury.
68 In Wyley, the Court was sentencing a young man for the offence of recklessly causing serious injury. Turning to the offending:
“The sentence should also reflect this Court’s disapproval of such gratuitous and inane violence as you exhibited …”
69 The Court noted, however, that rehabilitation was also an important factor to be balanced in the overall equation. Accepting the importance of rehabilitation, the Court stated:
“The message must be heard loudly and clearly that this type of mindless violence and aggression will not be tolerated by the Courts. Young men must realise that drinking too much alcohol does not excuse physical violence …”
And further:
“The regrettable fact is that gratuitous violence by drunk and aggressive young men in our streets … is prevalent and the cause of grave harm on many occasions.”
70 Your offending also involved, as I have said previously, a weapon.
71 I have guarded optimism regarding your rehabilitation prospects based on, in part, the reports before me which continue to concern me. You also have a prior Court appearance involving violence although, I stress, not the same type of violent offending currently before me. You have also in the past had a history of excessive alcohol consumption and drug use. Your drug use has been long standing. I understand you have instructed your consumption of all illicit substances has ceased. I am concerned by the cautionary note in the report of Ms Mynard as whether or not you are being entirely truthful in relation to your details of your substance use.
72 I can only hope that you will make every effort to rehabilitate yourself but you will need help. If you do not take on board assistance you will be offered and commit further offences such as this, you will be back before the Courts and you can expect the sentence to increase.
73 In fixing an appropriate sentence for your offending, I must seek to maximise such chances of your rehabilitation as there may be, being particularly mindful of your young age.
74 As well as matters personal to you to which I have referred, including your prospects of rehabilitation, I must also take into account such matters as deterrence, especially general deterrence, which is of considerable importance in a case such as this.
75 There is also an element of specific deterrence required when sentencing, as you do have a prior Court appearance for assault.
76 I must also consider the question of the protection of members of the community from you and bear in mind the likelihood of your re-offending. You must continue to address your alcohol consumption and/or drug use, receive professional assistance and take any medication prescribed in order for me to be less concerned about the need to protect the members of our community from you. There is the need to protect members of the community when sentencing you.
77 I am called upon by the Sentencing Act to manifest the community’s denunciation of your conduct and generally to impose a just punishment.
78
I arranged to have you assessed for your suitability or otherwise for a Youth Justice Centre order. As I discussed prior to sentence, I am concerned about your non-attendance for assessment at two appointments made for you at Footscray. A medical certificate was provided for one non-attendance but not the other. I question your appreciation of how serious your offending is.
I have, however, received a report which indicates you are suitable for a Youth Justice Centre order pursuant to s.32C Sentencing Act 1991. The author, Rosanne Paul, concluded you met the criteria for such an order, you are young and have a diagnosed intellectual disability. Whilst you appeared, she said, to accept responsibility for your actions, you required further interaction to address your offending behaviour.
79 Ms Paul observed you had not previously been in an adult custodial environment. I am also very mindful of that.
80 I am of the opinion that Mr Lindner’s primary submission of a Community Corrections Order does not appropriately/adequately reflect all matters relevant to sentencing, including not only the gravity of your offending and the seriousness of it, but also taking into account all matters in mitigation of your sentence.
81 I do, however, take into account you have not been in an adult prison nor in detention previously. You are also a young offender with a limited criminal history. In my opinion, the only appropriate disposition is a sentence involving detention in a Youth Justice Centre.
82 I am satisfied, despite the submission by Mr Cronin on behalf of the prosecution, that imprisonment in an adult prison is not appropriate.
83 I sentence you as follows:
84 On Charge 1, you are sentenced to be detained in a Youth Justice Centre for 3 years.
85 I note as prescribed by s.35(4) Sentencing Act 1991 I declare you have spent nil time in custody in respect of this charge, and I direct that such be entered in the records of the Court. I do want that confirmed.
86 Pursuant to s.6AAA Sentencing Act 1991 had you been found guilty of this offending by jury verdict, I would not have imposed a Youth Justice Centre detention. Rather I would have sentenced you to 4 years' imprisonment in an adult jail with a non-parole period of 2 years and 6 months.
87
The prosecution made an application for a Disposal Order for the imitation hand gun found under your bed when police attended at your home on
30 March 2012. This was consented to by counsel on your behalf and I make the order in the terms sought. I had better check if that is disposal or forfeiture.
88 The prosecution also made application pursuant to s.464ZF of the Crimes Act 1958 for a forensic sample. Mr Lindner consented to this application on your behalf. I make the order on the basis of the seriousness of this offending and your prior criminal history. It will be for a saliva sample. I must advise you, Mr Elliott, that the authorities may use reasonable force in order to obtain that sample from you.
89 First of all, most importantly, any custody?
90 MR LINDNER: I should check with my client. I think it is nil. I am almost certain it is.
91 HER HONOUR: Would you mind?
92 MR LINDNER: Just as a precaution.
93 HER HONOUR: It all makes a difference, as you know.
94 MR LINDNER: That is correct, Your Honour.
95 HER HONOUR: Was it a disposal, not a forfeiture?
96 MS JANKOVIC: Forfeiture order, Your Honour.
97 HER HONOUR: It has disposal on the heading.
98 MS JANKOVIC: It may have been.
99 HER HONOUR: No, that is all right. And it is for saliva.
100 MS JANKOVIC: Yes.
101 HER HONOUR: Are there any other matters, anything I have missed, anything you want some clarification of? I will fix up that citation that I did not have, about the year. I will sort that out and it will appear in the revised material.
102 MR LINDNER: If Your Honour pleases, may I be excused?
103 HER HONOUR: Yes, absolutely. Yes, thank you.
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