Director of Public Prosecutions v Ezergailis
[2023] VCC 1769
•2 October 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 23-00771
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| EMMA EZERGAILIS |
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JUDGE: | HER HONOUR JUDGE SYME | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 August 2023 | |
DATE OF SENTENCE: | 2 October 2023 | |
CASE MAY BE CITED AS: | DPP v Ezergailis | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1769 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Home Invasion – Causing Injury Intentionally – Kidnapping –
Legislation Cited: Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic).
Cases Cited:Boulton v The Queen [2014] VSCA 342; Hogarth v The Queen [2012] VSCA 302.
Sentence: 4 years imprisonment with a non-parole period of 2 years and 1 month.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr P. Pickering | Office of Public Prosecutions |
| For the Accused | Ms N. Kaddeche | Victoria Legal Aid |
HER HONOUR:
1Emma Ezergailis, you have pleaded guilty to one count of home invasion (steal) person present, one count of causing injury intentionally, and one count of kidnapping.
2In describing your offending, I propose to anonymise the names of the victims of your offending to protect their privacy.
3In relation to the count of home invasion, the charge is that at Preston, Victoria, on the 28th day of July 2022, you entered, as a trespasser, a home situated at Spring Street, with intent to commit an offence involving an assault to a person therein. At the time, you were in the company of Adam Needham, Dino Dattoli and two others who have not been identified. People who I will call Zubair Michael,[1] Dalton McDowell[2] and Iris Knowles[3] were, at that time, present in the home.
[1] A pseudonym.
[2] A pseudonym.
[3] A pseudonym.
4The maximum penalty for this offence, which is a category 2 offence, is 25 years' imprisonment.
5In relation to the charge of causing injury intentionally, you, at the same time and place, without lawful excuse, intentionally caused injury to Zubair Michael.
6The maximum penalty for this offence is 10 years' imprisonment.
7In respect of the offence of kidnapping at Reservoir, on the same date, shortly after the above offences, you unlawfully took and carried Zubair Michael away against his will.
8The maximum penalty for this offence, which is also a category 2 offence, is 25 years' imprisonment.
Prior criminal history
9The court observes that you have prior convictions relating to driving contrary to driver's licence conditions and cannabis possession. You were convicted and fined for these offences in February 2021. This offending is relatively minor and is not a significant consideration in sentencing for this matter.
10You admit to significant illicit substance abuse over the past 10 years.
Background
11By way of background, the facts relevant to the offences, as set out in the prosecution opening, are not in dispute.
12At the time of offending, you were 28 years old and resided in Thomastown. The known co-offenders, Adam Needham and Dino Dattoli, were 28 and 43 years old respectively. Two unidentified males were also involved in the offending.
13The complainant was staying with a friend, Dalton McDowell, at Spring Street, Reservoir. Also present in the house was Iris Knowles.
Home invasion
14On 28 July 2022, at approximately 4.45 am, all three occupants were woken by knocking at the door and a voice which asked, 'Where's Zubair?'
15Zubair Michael recognised Needham's voice and ran to the back of the house.
16McDowell answered the front door. As he unlocked it, it was pushed open by you and your four co-offenders.
17One of the unidentified males was carrying a green-handled shovel which had been kept in the backyard of McDowell's premises. McDowell did not know the five people who entered the house uninvited and was understandably fearful of you all.
18Michael picked up a chainsaw on the way to the back of the house and locked himself in the bathroom at the rear, attempting to start the chainsaw to apparently protect himself.
19Needham broke the bathroom door open and forced his way in.
20A scuffle occurred between Needham and Michael in which Needham slashed at Michael with a red knife without causing injury. During the scuffle, Michael fell on top of Needham near the bath and was pulled away by Dattoli, who then pointed a silver handgun at Michael's head and said: 'Get into the car, if you run, I'll kill you and your family'.
21At some point, Michael was struck with the shovel.
22The above description relates to the charge of home invasion. It can be observed that the home invasion was serious, confrontational and very frightening offending for the three occupants targeted.
Intentionally cause injury
23I turn now to the charge of intentionally causing injury. As part of the sequence of the offending in the home invasion, you also entered the bathroom. You punched Michael to the face. When this occurred, Dattoli said to Michael, 'Don't fucking do anything to her'. The assaults, including your assault on Michael, took place in the bathroom for approximately five minutes. In that time, McDowell and Knowles remained in the living room, watched by the two unidentified co-offenders.
Kidnapping
24I now turn to the offence of kidnapping. After the assaults ended, Needham, Dattoli and you walked Michael out of the house towards an SUV parked in the street. Michael had a blood nose from the punch inflicted by you. He did not believe that he had any option except to go with all of you as a result of the threat by Dattoli.
25One of the unidentified offenders indicated that they would 'meet up' at the destination.
26Michael entered the passenger-side front seat of the vehicle. Needham sat behind and held a knife in one hand and grabbed the back of Michael's hair with the other. It is unclear, at least to me, who the driver was.
27As the vehicle started to move, one of the seatbelt alarms activated. Michael jumped out of the car and ran north on Cooper Street.
28You all gave chase in the vehicle. Michael ran towards the Railway Reserve bike path. He attempted to call 000 on his mobile phone at 4.58 am.
29You and Needham caught up to him. Needham slashed at Michael with a knife, causing a deep cut to the back of his head. He continued to slash and stab at Michael approximately 12 times while Michael begged him to stop.
30You took Michael's mobile phone and disconnected the 000 call, yelling at him - 'just cooperate, just cooperate'. I observe that this places you in a position of significant participation in this part of the offending.
31Eventually, Needham dropped the knife and Michael tried to escape again. You told Needham not to let Michael get away. However, he escaped towards Stanworth Court, where a staff member of Woolworths called 000 for assistance. Police and ambulance arrived shortly after.
32When Police arrived, Michael was on the ground bleeding from the wound to his head. He was taken to Royal Melbourne Hospital. Medical assessment showed that he suffered a 10-centimetre-long laceration to the left temporal, alongside superficial lacerations to the anterior neck.
Arrest
33You and Dattoli were arrested on 4 August 2022.
34On interview, you made some admissions. You were charged the same day. After some negotiations at the committal stage, you indicated pleas to these matters on 12 May 2023. It is conceded by the prosecution to be an early plea. It is noted that you have spent 424 days in custody.
Objective gravity
Home invasion
35An assessment of the objective gravity of each offence and your role in the circumstances of the offending is required as part of the sentencing process.
36The home invasion offence has several aggravating features which make it more serious. These include:
37Your motive in attending with the others was to exact 'some kind of revenge' (question and answer 57 in your record of interview). It is unknown what motivated the others.
38Next, you located the victim's address and advised others who you knew and expected to attend the victim's residence (question and answers 26 and 47 in your record of interview). This supports a finding of some planning occurring between you and your co-offenders. This increases the objective seriousness generally and underlines the importance of your role.
39The entry occurred in the early hours of the morning when there was a rational expectation that the residents would be asleep. They were.
40The invasion was undertaken by five adults, including you. This is the most significant aggravating feature of the offending. The three people in the home were placed in a very frightening situation. The number of people involved resulted in any resistance being overcome.
41The level of violence as a whole, including three offenders being armed with and threatening the victim with a shovel, a knife and a pistol, was extreme. It is accepted that at the commencement of the events, you were unaware of the weapons. However, after they were produced, you continued to act in concert with your co-offenders in the kidnapping.
42Once in the home, you knew that the victim was afraid. No doubt the others in the home were too. You knew this. Objectively, this is a very serious example of the charged offence.
Kidnapping
43I turn now to the kidnapping. Similar observations are made with respect to the objective seriousness of the kidnapping.
44The number of people involved and the use of a knife made resistance by the victim very difficult. When, by good fortune, he managed to escape, you were one of the offenders who chased and caught him.
45It was you who disconnected the 000 call he had attempted to make, thus extending the offending. It is noted that by that time, the entire event from the home invasion onward had occupied some 15 very confronting minutes for the victim.
46He was suffering from the significant assault inflicted by your co-offender. He was bleeding. You instructed another offender not to let him get away, although, it seems this ultimately occurred. Fortunately, he escaped, thus limiting the time over which the offending extended.
47Objectively, this is a serious example of the charged offence.
Intentionally causing injury
48In relation to intentionally causing injury, I note that there was one punch inflicted which caused Michael’s nose to bleed. You inflicted it in a situation where the victim was in a vulnerable position, having been assaulted by others who were still present and who protected you by threatening the victim if he retaliated.
49The injury and the offending is of relatively low objective seriousness.
Mitigating matters
50In relation to mitigating matters, it is accepted by the prosecution that you were not armed yourself and you were not aware of others being armed when the home invasion commenced. As noted above, you obviously became aware of these items by the time the kidnapping had occurred.
51The prosecution concede that apart from punching the victim in the face as described above, you did not participate personally in any of the other violence inflicted on him (while noting your complicity with those who actually inflicted the violence).
52Your involvement in the most serious charges is perhaps less objectively serious than that of the others who made direct threats and undertook assaults with weapons. It is not a circumstance of mitigation but will be considered when assessing your role.
53In summary, this reduces the objective seriousness of your involvement in the offending compared to the other offenders, although, your complicity is once again noted. As I have said, your co-offenders acted in an apparently protective manner towards you and you took advantage of that. You were present with the other offenders throughout the events and encouraged their behaviour both by your presence and verbally. Specifically, when you told Needham not to let Michael get away.
54The circumstances of the entirety of the offending are of great concern and represent a very serious set of circumstances. Your involvement, while perhaps less directly violent than your co-offenders, was still significant.
Victim Impact Statement
55No Victim Impact Statement was provided. This does not reduce the objective seriousness of the offending.
Personal circumstances
56I turn now to your personal circumstances. I have reviewed the report prepared on your behalf by psychologist Dr Barth.[4] This report was prepared after he interviewed you and had access to the prosecution opening and your criminal antecedents. The report is prepared largely as a result of your self-report. Its contents are not challenged.
[4] Tendered as Exhibit A.
57Some of the information given to Dr Barth was not entirely consistent with the submissions from counsel, especially, as it related to your use of substances over the years. You did not give evidence, so I take these submissions with caution.
58The recent CCO report informs the court that you advised that report writer of significant alcohol use over many years and what appears to be intermittent and significant substance abuse. You report that in the year prior to this offending, your use escalated. Other information is available from friends and family which I will refer to below.
59Historically, you reported a close family background and a great deal of support from your parents and siblings. You suggest that you were indulged as a child. You left home when aged 18 but maintained contact with your family. Your family still offer significant support, although, perhaps, they are not fully aware of the depth of your substance abuse problems. Your father reports only really becoming aware of your significant addiction in the few months prior to this event.
60On your self-report to Dr Barth, substance abuse was significant. It is remarkable that you did not come to the attention of authorities prior to now, considering your admission of involvement with companions who were involved with criminal offending and substance abuse over an extended period.
61I suggest, in the fullness of time, that your family be given significant information about your self-reports to Dr Barth and that they be allowed a copy of his report so that they may properly be informed as to the level of assistance you will require.
Substance abuse
62To be more specific, you report that you indulged in significant substance abuse from the time you left home, although you admit significant use while still living with your family.
63Your substances of choice included alcohol, cannabis, methamphetamine, ecstasy and GHB. As a result of this drug abuse, your social contacts largely included other drug users. You reported to Dr Barth (at paragraphs 15 to 17 of his report) that this substance abuse continued until your incarceration on these matters although you had 'commenced NA (Narcotics Anonymous)' prior to the offending.
64Your counsel's submission indicates one attendance at Alcoholics Anonymous (AA) prior to offending. Your counsel submits that you had periods of abstinence, notably, in 2014, when you were aged 20. Additionally, for a total of eight to nine months in 2019 or 2020.
65Your counsel submits that an attendance at an AA meeting in February 2022 demonstrates 'insight and an attempt at betterment'. Perhaps, this is the NA meeting referred to by Dr Barth. In any event, my observations above are apt.
66I note that at that time, your parents were very concerned for your welfare. Without knowing the circumstances of this one attempted meeting, it is difficult to concur that it represents a turnaround in your attitude to substance abuse, as evidenced by your prior 10 years of presentation and, of course, this offence being committed afterwards.
67Your counsel further submitted that your addiction to drugs became a real problem in 2021. Your parents and Ms Hargreaves, who has provided a reference, seem to be of the same understanding. This submission and information contradicts the information in your self-report to Dr Barth. His analysis suggests that the problems were well entrenched prior to this offence.
68The contents of the recently prepared CCO report supports that proposition. In it, observations are made that your three prior serous relationships were 'all influenced by drugs’ and ‘had an alignment to criminal behaviour'. Further, that your relationship with one of your co-offenders, Needham, spanned across 10-year.
69Your self-report to your parents, Ms Hargreaves and your counsel, were not consistent with the interview results ascertained by Dr Barth and as confirmed in the recent CCO report. Dr Barth is an objective professional tasked with forming conclusions as requested. I find his observations are more likely to be accurate than the naturally subjective and supportive reportage from friends and family who seek, quite properly, to put the most advantageous view of you before the court. In fact, Ms Hargreaves reports that you told her you were unable to disclose the exact nature of your offending.
70For those reasons, I give the objective opinions of Dr Barth, referred to below, more weight than the submission from your counsel that you have gained insight, than the observations from Ms Hargreaves that you 'regret your involvement'. As above, her letter, while obviously very supportive, is diminished by the fact that she states that she does not know what the allegations really are (see page 2 of her reference).
71Dr Barth observes:
[Your] long-standing history of substance abuse issues … have significantly impacted your life and are sufficiently severe to warrant the diagnosis of a stimulant-use disorder and a alcohol-use disorder by DSM-5-TR criteria. These disorders would have been categorised at the "severe" level. [He further observes] provided current abstinence can be objectively verified, both disorders would be specified as in remission - in a controlled environment.[5]
[5] See paragraph 34.
72There are some positive findings that can be made. It is pleasing to note that you have fully embraced in custody programmes and have complied with the drug testing required. It is noted that you have used substances prior to now for almost continually over 10 years. You have now been abstinent for a little over one year. It is a very good start.
73You have provided to the court and Dr Barth details of the significant work you have undertaken while in custody to address these substance abuse issues. These attendances will be referred to in more detail below.
74With respect to your prospect of addressing these addictions, Dr Barth observes, at paragraph 36 of his report, that:
Notwithstanding her encouraging progress, Ms Ezergailis' understanding of relapse prevention strategies are still developing and her coping skills during periods of personal stress remain unsophisticated.
75This observation underlines the need for your family and friends who will support you on your eventual release to be fully informed of the challenges they will face in providing that support. Overcoming an addiction of such long standing can often be a difficult process. Those who will support you may be assisted by learning strategies on how to best do that.
Mental health
76I now turn to your mental health issues. Your mental health has reportedly been an issue for you for some years. You suggest that your substance abuse was driven by your feelings of anxiety and social exclusion. This conclusion is not necessarily endorsed by Dr Barth as the simple linear connection you claim it to be. His observations suggest that you lack, what he calls, 'social reasoning skills'. Your impulsivity and risk-taking behaviour is one of the consequences. He also recommends vocational and educational training as being a necessary part of a new prosocial mindset.
77My observation is that it is frequently difficult to disengage a cause-and-effect in circumstances such as yours, given your substance abuse commenced at a time of relatively immaturity. Your friendship circle included a cohort of substance abusers which in turn, make such abuse the norm for that social circle. This further encouraged your use.
78The detailed assessment by Dr Barth does not suggest any significant mental health issues not connected to your past substance abuse and your current custodial predicament. He observed that you present with a mild emotional distress that is primarily linked to your current predicament and uncertainty. He reported that you have adjusted well to prison. This observation is supported by your family and the CCO report. Your presentation in a controlled environment when you are not substance affected is to be commended.
79Dr Barth further observes that there are no indications that you were labouring under any mental disorder at the time of your offending (per paragraphs 28 to 30 of his report). He reported your cognitive function to be normal and further observed no indications of any form of thought disorder, psychosis or intellectual impairment. He estimates your intelligence to fall in the normal range (at paragraph 31 of his report).
80This is of course, a different consideration to your report of being under the influence of drugs at the time of offending. I confirm this fact, which I accept as true, is not a mitigating feature of your offending. Rather, it represents an area to be addressed as part of a rehabilitation process.
81In general, Dr Barth observes that you present as an extroverted individual, a skilled conversationalist with a social affiliation, and a personal need to continually enhance your sense of self-esteem. He opines that this strong need for attention also contributed to your propensity to focus on achieving a lifestyle which prioritises excitement and self-gratification.
82He explained that you have a low tolerance for boredom and the more 'routine' aspects of life, a matter which has significantly hindered your ability to implement more sustainable and prosocial long-term goals (at paragraph 32 of his report).
83In summary, he observes that these features of your personality have contributed to significant problems with your behavioural control. My observation, therefore, is that both your personality presentation and substance abuse issues require attention if you are to successfully rehabilitate. As observed above, the programs you have commenced in custody are a good start.
Prospects of rehabilitation and risk of reoffending
84I now turn to your prospects of rehabilitation and risk of reoffending. You profess some insight into the consequences of substance abuse for you personally and the link between your long-term drug use and this offending. However, I note, as Dr Barth observes above, that your personality has contributed to your poor ability to control your own behaviour, which includes offending, peer association and substance abuse.
85As mentioned earlier, you have reportedly adjusted well to a custodial environment and have taken advantage of the rehabilitation programs currently available to you. These programmes include your involvement in an intensive drug and alcohol treatment program which involves frequent drug testing as a necessary component. You have maintained a position of trust within treatment and peer support programs.[6]
[6] Tendered as Exhibit B.
86Again, you are to be commended for your enthusiastic involvement in these initiatives. As a result, I accept Dr Barth's findings that you demonstrate a developing insight into the issues associated with your substance use, self‑medication and use of substances to enhance your self-esteem and social connection. You have expressed a desire to implement a more prosocial lifestyle. Once more, good intentions and a developing insight represent a good start and you deserve credit for that start. As you are no doubt aware, substance abuse and relapse will be a constant consideration for your life in the future.
87When considering your risk of reoffending in a violent way, Dr Barth's findings are more circumspect. He notes that there is limited research relating to female violent offenders. Dr Barth suggests that the relevant criminogenic factors which may increase your risk of violent reoffending include: your history of turbulent interpersonal relationships; significant substance-abuse issues; and engagement with negative peers. Protective factors include: no prior history of violent behaviour; a limited criminal history; solid family support; and the genuine progress you have made in the treatment you have undertaken.
88Dr Barth opines that within these limitations, your risk of reoffending in a violent manner is most likely to fall in the 'low to moderate' range. He suggests, in the conclusion of his report, both substance abuse treatment and offence-specific treatment to reduce any risk of reoffending. That is, reoffending in similar or other forms of offending.
89He further suggests that any treatment should include close supervision, regular testing, and challenging engagement to regulate your behaviour and emotions. Detailed recommendations are contained in the conclusions of his report. As noted above, I strongly suggest that those who will supervise, or assist to supervise you in due course, inform your family members of the potential pitfalls and how they can best support your addictions. This is particularly relevant in light of your proposals to live with family members upon your eventual release.
90The CCO report prepared for the Court assesses your risk of future offending, in general, to be at a medium level. This assessment allows for and acknowledges your renewed prosocial attitudes and your progress in custody so far. The areas of elevated risk include your past education or employment, your lack of prosocial leisure, recreation habits and your choice of companions over time.
Remorse
91Insofar as submissions have not been dealt with, I accept that your early cooperation with police and acceptance of guilt must result in an appropriate consideration on your sentence. Such acceptance can also be evidence of remorse.
92You told Dr Barth that you have learned to forgive. I am not sure that this is an expression of remorse. You told Ms Hargreaves that you could not talk about the offending 'as you [had] not been charged yet'. This does not seem to be accurate as Ms Hargreaves' letter is dated June 2023. However, I accept that for whatever reason, you regret your involvement in this offending. It is noted that you have embraced your rehabilitation while in custody and this is very much in your favour.
Purposes of sentencing
93I now turn to the purposes of sentencing. As set out in s 5 of the Sentencing Act, the purposes of sentencing often pull in different directions, but all are important.
94Your counsel submitted that the quality of supervision on a CCO is of a more specific and, therefore, higher quality, than that which could be offered as part of parole supervision. To elaborate, counsel suggested that CCO supervision would be more focussed on your individual needs and requirements than supervision on parole. This was a novel submission. When challenged to support it, counsel was unable to do so and it was ultimately withdrawn.
95The focus of counsel's submissions was to suggest that no further time in custody was required. Those submissions were repeated today and she referred to specific areas of Boulton's case[7] which I had already accessed. I do not agree with this submission, even if a combined sentence was possible under the Act.
[7] Boulton v The Queen [2014] VSCA 342.
96At counsel's urging, I did seek an extended CCO report on the basis that it would give the court more information than was currently available about the supervision possible. I acceded to this request as, in the fullness of time, suitable supervision arrangements need to be made whether on parole or otherwise.
97Counsel today suggested that you have undertaken everything that is necessary or possible for you to undertake while in custody. I certainly accept that you have undertaken a number of programs in custody, but I do not accept that you are necessarily at a stage where I can only take rehabilitation into account as being the only, or most important, sentencing option.
98With respect to a further comment on the CCO report, I would again suggest that the report, if you consent, be made available to your family and to those who will ultimately supervise you. The more information that is available, the better informed supervisors will be when they try to assist you.
99The observations of the CCO report writers are in similar terms to those of Dr Barth. The CCO report expresses appropriate concern as to your long-term substance abuse and long-term association with criminal associates.
100I have no doubt that the same supervision requirements exist in parole supervision as are suggested by the CCO report. I accept that supervision will assist you with the sentencing objective of rehabilitation with some immediate consequences if you fail to maintain your undertakings. This also addresses the protection of the community.
101The sentencing objectives of just punishment, deterrence and denunciation are equally important. As observed in Hogarth's case,[8] the consequences for an offender must be significant where a number of people are involved in an unlawful entry and where the degree of offending therein places occupants of that home in fear. Such aggravating factors were relevant to what the court referred to as 'confrontational aggravated burglary'.
[8] [2012] VSCA 302.
102That case followed the maximum penalties being increased from 15 to 25 years, which is still the maximum for home invasion. That being said, I accept that the maximum penalty is only one of many matters a sentencing court must consider.
Further considerations
103Home invasion and kidnapping are both category 2 offences within s 5A of the Sentencing Act. Therefore, this court must impose a sentence of imprisonment (without a CCO) unless certain circumstances are satisfied. It is not submitted that you fall into any of these exceptions.
104Notwithstanding this difficulty, counsel submitted that a combined sentence is, in some form, available to the court. The prosecutor conceded that a single term of imprisonment could be imposed on Charges 1 and 3, and a separate CCO could then be imposed on Charge 2.
105The objective seriousness of the two most serious offences cannot be overlooked. Counsel submitted that notwithstanding that these two offences are Schedule 2 offences, the court could, and should, make fixed term orders of imprisonment representing time served for each of them and on the remaining offence, place you on a Community Corrections Order. The effect of this, she submitted, would be a sentence which had a definite date of release combined with supervision on a CCO. Prosecution counsel did not disagree that this was technically possible.
106While I have some doubt that this type of disposal would reflect the intention of s 5H of the Sentencing Act, I have no need to consider this question. It is my firm view that a term of imprisonment is required to reflect the objective seriousness of the offending and your involvement in it. A term of imprisonment will be well in excess of time served.
107I accept the observations in Boulton's case[9] that a CCO, properly constructed, can address the needs for punishment notwithstanding that punishment occurs within a community setting. However, I am not of the view that dealing with the matters as submitted by counsel reflects proper consideration of all of the s 5 sentencing requirements, even if s 5H were technically disregarded.
[9] See Boulton v The Queen [2014] VSCA 342.
108Using the maximum penalties of the offences and my assessment of the objective seriousness of the offences and your involvement in them as a guiding process, I cannot conclude that anything other than a term of imprisonment is the just outcome for these offences in total. Although you have taken significant steps to resolve your substance abuse issues, other sentencing considerations must also be addressed. As I have said, the sentencing objectives of just punishment, deterrence and denunciation are equally important.
109I will, however, make a generous finding when considering the non-parole to total term ratio to ensure that your period of supervision is as long as is practicable in the community.
110You having been using substances and socialising with other users for a number of years, perhaps, up to 10 years. The period of supervision in the community ought, of necessity, be a long one. It is appropriate that you understand that at the conclusion of the total non-parole period, you will then be eligible for parole and, at that time, you will be subject to a decision of the parole authorities as to your suitability for supervision and the terms of same.
111Your current presentation bodes well, however, issues such as accommodation, employment and counselling will have to be considered. I have expressed some concerns that your family is not fully informed as to the depth of your past substance abuse and therefore, the real difficulty you may have in reinventing your prosocial life must be acknowledged.
112Your compliance with parole supervision will determine whether that supervision is maintained, varied or terminated. No doubt your family will be advised in detail of the requirements if they propose to assist with your rehabilitation. On the current presentation, it seems clear that they will.
COVID considerations
113Finally, I note some COVID considerations. It was submitted, and I accept, that for some of the time since following your arrest, conditions in custody were more restrictive than usual due to COVID requirements. I observe that notwithstanding those restrictions, you have managed to receive personal visits from family and friends and you have undertaken the significant number of courses you have told the court about. COVID is a consideration, but a minor one.
Sentence
114I accept that the events were part of a set of circumstances that took place after some planning over a relatively short period of time. Concurrency in the sentences will reflect this.
115On Charge 1, for the offence of home invasion, I sentence you to a term of imprisonment of three years and six months. This will be the base sentence.
116On Charge 2, intentionally causing injury, I sentence you to a term of imprisonment of two months. This will be served concurrently with the base sentence.
117On Charge 3, kidnapping, I sentence you to a term of imprisonment of two years and six months. Six months of this sentence will accumulate on the base sentence.
118The total effective sentence imposed is therefore four years' imprisonment with a non-parole period of two years and one month.
119Pursuant to s 6AAA of the Sentencing Act, had it not been for your plea of guilty,[10] I would have imposed a term of imprisonment of six years and six months with a non-parole period of three years and six months.
[10] This declaration also takes into account your early admissions to police.
120I note you have served 424 days of pre-sentence detention and I reckon this period as time served.
121My associate is going to work out shortly a rough time that Ms Ezergailis might apply for parole.
122ASSOCIATE: September next year, Your Honour.
123HER HONOUR: It's around about September next year, Ms Ezergailis, that you will be in a position to apply for parole. I know that is something you were keen to know. Those days are always subject to further deductions which may be reckoned as emergency days and so forth.
124Mr Pickering, is there anything else, any other orders sought?
125MR PICKERING: No, Your Honour.
126HER HONOUR: Ms Kaddeche, is there anything else?
127MS KADDECHE: No, Your Honour.
128HER HONOUR: Do you require some private time with your client? We can leave you in court and speak to her privately if you wish.
129MS KADDECHE: No, Your Honour, we've spoken to her before court.
130HER HONOUR: You've done that, all right.
131MS KADDECHE: So we'll organise that.
132HER HONOUR: All right. Thank you very much. Thank you, counsel. Thank you, Ms Ezergailis. We'll adjourn now.
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