Director of Public Prosecutions v Fiscalini
[2021] VCC 1523
•8 October 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-01098
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JORDAN FISCALINI |
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JUDGE: | HER HONOUR JUDGE GWYNN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 September 2021 | |
DATE OF SENTENCE: | 8 October 2021 | |
CASE MAY BE CITED AS: | DPP v Fiscalini | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1523 | |
REASONS FOR SENTENCE
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Subject:Criminal Law
Catchwords: Prohibited person possess firearm; Handling stolen goods; Aggravated burglary; Common law assault; Discharge firearm at premises recklessly; Commit indictable offence whilst on bail.
Legislation Cited: Sentencing Act 1991; Firearms Act 1996.
Cases Cited:Hogarth v The Queen [2012] VSCA 302; DPP v Meyers [2014] VSCA 314; DPP v Drake [2019] VSCA 293; Worboyes v The Queen [2021} VSCA 169; Azzopardi; Baltatzis; Gabrielv R [2011] VSCA 372; Bugmy v The Queen [2013] HCA 37.
Sentence: 5 years and 10 months imprisonment; non-parole period of 3 years and 6 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms T. Saville (for Plea) Ms C. Cameron (for Sentence) | Office of Public Prosecutions |
| For the Offender | Mr W. Barker (for Plea) Mr L. Hocking (for Sentence) | Michael J. Gleeson & Associates |
HER HONOUR:
1Jordan Fiscalini, you have pleaded guilty on indictment to single charges of prohibited person possess firearm, handling stolen goods, aggravated burglary, common law assault and two charges of discharge firearm at premises recklessly. You have also pleaded guilty to one summary charge of committing an indictable offence whilst on bail.
2In sentencing you for these crimes I must have regard to the maximum penalties for the offences, which are as follows:
(a) Prohibited person possess firearm carries a maximum of 10 years imprisonment;
(b) Handle stolen goods carries a maximum of 15 years imprisonment;
(c) Aggravated burglary carries 25 years imprisonment;
(d) Common law assault, 5 years imprisonment;
(e) Discharge firearm at premises recklessly, 15 years imprisonment; and
(f) Commit indictable offence whilst on bail, 3 months imprisonment, or 30 penalty units.
The Offending
3The offending that gives rise to these charges all occurred on the night of 19 February 2020. At that time you were 19 years of age and were living at an address in Tyner Road, Wantirna South. You were both a "prohibited person" under the Firearms Act 1996, and on bail (Prohibited person possess firearm/commit indictable offence whilst on bail). The co-accused in this matter, Joshua Searancke, is proceeding to trial.
4The circumstances of your offending are set out in a document entitled "Summary of Prosecution Opening for Plea" dated 27 September 2021. It is a detailed document and represents an acceptance by you of all the elements of the offences to which you have pleaded guilty and the factual basis on which I am to sentence.
5In brief terms, on 18 February 2020, you were observed at the Tyner Road property. A Commodore was parked outside, without number plates. You told police you had just purchased the vehicle and were in the process of getting it registered.
Number Plates
6About 6:30 pm on 19 February 2020, Samuel Derwent parked his vehicle at the Stud Park Shopping Centre in Rowville. His car bore registration plates 1QL-2NE. Mr Derwent recalled seeing the registration plates on the vehicle as he walked to the shopping centre. When he returned to his car at approximately 7:00 pm he noticed the plates were stolen and reported the matter to police.
7You and your co-accused drove the Holden Commodore bearing those registration plates 1QL-2NE a short distance to Eastlink. At approximately 6:55 pm, you were travelling Frankston-bound on the freeway. The vehicle pulled over in the right-hand side emergency lane, around 300 metres before the Greens Road exit.
8
One of you crouched inside the door, holding a black sawn-off shotgun up at a
45-degree angle, pointing directly across the city-bound lanes. The firearm was then discharged.
9This sets the background for the offending which followed.
First incident
10You and your co-accused then travelled to Frankston. At approximately 10:20 pm, you parked the Commodore and you both walked to unit 1 of 325 Nepean Highway. One of you was armed with the shotgun. You banged on the front door of the unit and forced open the front door. Occupants Frazier and Knox were inside the premises.
11The offender holding the firearm said to Frazier, “Who held a gun to my missus’ throat?”, entered the house (charge 3 - aggravated burglary) and punched Frazier in the mouth with a closed left fist. That offender then lifted the gun to his shoulder and hit Frazier with the butt of the gun to the left side of his temple, causing pain, swelling, and bruising, before firing the gun over Frazier’s head, through the laundry window behind him (charge 4 - common law assault). The offender holding the firearm then opened the gun in front of Frazier, saying, “There’s another one in there, smart ass”.
12Both you and the co-accused then left without saying or doing anything further.
Second incident
13You both then went to unit 46. The occupants of this unit were a Ms Sibwoga and her husband Mr McEachran, who had gone to bed at around 9:30 pm. Ms Sibwoga was awoken by a loud banging noise, followed by a single loud popping noise. McEachran had gotten up shortly before and had gone to investigate. McEachran heard the fly wire screen door being removed and then heard banging on the glass sliding door.
14The shotgun was then discharged into the glass sliding door, sending glass from the door through the unit (charge 5 - discharge firearm at premises). Debris from the shot struck McEachran’s arm. He heard you both jumping his back fence and went to look outside. He saw the arm of a person disappearing over the fence.
Third incident
15Both you and the co-accused then travelled to Lysterfield. At approximately 11:30 pm you parked the Commodore in Volks Court and walked to 66 Major Crescent.
16Dazhan Deng and Ying Liu lived at this address with their adult son, Chuang Deng.
17You and the co-accused walked up to the front door. One of you broke a glass panel in the front door, putting a hand through, trying to unlock the door. By this time, the occupants had become aware of your presence at the front door and held the chain on the lock to stop you from opening the door.
18Deng recalls the man standing behind you reaching through the door and holding what Deng believed was a gun pointed at the front door. Ms Liu also saw a gun, and recalls seeing the gun come through the hole in the door.
19Once they saw the gun, Deng and his parents took cover behind a wall in the living room. The gun was discharged into the brickwork above the front door (charge 6 - discharge firearm at premises), before you both ran away.
The Vehicle
20The Commodore was located by Police in Blackburn and searched. Items of relevance to their investigation were located including two registration plates, 1QL-3NE, the subject of charge 2, handle stolen goods. I see this charge as the least serious on the indictment.
Arrest and interview
21You were arrested on 24 February 2020 and interviewed in relation to this matter on 10 March 2020. Whilst you did provide your address, during that interview you otherwise gave "no comment" answers, as is your right.
Offence gravity
22This is obviously extremely serious offending, and, in your case, or in any event, a little hard to understand.
23Apart from the first incident, the reasoning behind the offending remains unclear. Your co-accused apparently lived nearby and you knew each other. You were able to provide him with a means of transport with a Commodore but to this day you are apparently unaware of the motives of your co-accused in the offending.
24The Crown case is put on the basis that it is not said that you are the gunman in any of the incidents. Nor were you said to be in actual possession of the firearm You are charged on a complicity basis.
25Be that as it may, you were prepared to be involved. You were aware of the presence of a working firearm from the moment it was fired across traffic, yet you continued. In so doing, I accept on the evidence before me that you were the follower, not the leader.
26The first incident involves the aggravated burglary and menacing of the occupants of 1/325 Nepean Highway. The aggravated burglary is particularised as entering with an intention to assault and having an offensive weapon – the firearm - at the time of that entry.
27I have had regard to the decisions of the Victorian Court of Appeal including that of Hogarth v The Queen [2012] VSCA 302, and DPP v Meyers (2014) 44 VR 486. The Court in Hogarth concluded that current sentencing for confrontational aggravated burglary did not reflect the objective seriousness of this form of the offence
28Further, in the decision of Meyers, the Court of Appeal referred to determining the appropriate sentence for an offence of aggravated burglary through an assessment of the seriousness of the offence and included a number of non-exhaustive considerations as being relevant to such an assessment.
29In this particular case, entry was forced to the premises at around 10:20 pm by two offenders carrying a loaded shotgun that was used to assault one of the occupants (the subject of a separate charge). It would appear that you were not the one with whatever issue was held with the occupants, but you simply should not have been there.
30The next two events occur without any apparent reason and also involve the discharge of a firearm.
31Whilst it is submitted that your offending was unsophisticated and lacked premeditation, in my view it takes some planning to organise two offenders, access to your vehicle, the weapon and coordinate the addresses to attend. I am not in a position to reach a concluded view as to what role you played in that decision-making process, only that you did participate from the point that you were on clear notice that a gun was present and likely to be used.
32Whilst I accept the submission that I could not form the view that the firing of the weapon was directed at any person, I note that if it had been, the charges would likely have been different than those presently charged as common law assault (Charge 4) or discharge of a firearm at premises recklessly (charges 5 and 6).
33Obviously the charge of prohibited person in possession of a firearm is a separate charge. However, the closeness in connection between possession of and then discharging a firearm makes it necessary to have regard to the principle of totality and also to avoid double punishment, given that the act of possessing the firearm was essential to the conduct that gave rise to the offence of discharging that firearm.
34The possession of a loaded firearm cannot be seen as an aggravating feature of the discharge firearm charge, which, by its very nature, also entails the use of a loaded firearm. The same applies to the fact that it was fired at premises. This aspect will be reflected in the individual sentences imposed and the degree of cumulation between the charges, which will need to be moderated accordingly.
35The firing of such a weapon into a home simply has to be inherently dangerous and very dangerous at that. Each incident occurred in a residential area.
36At the Sibwoga/McEachran premises, the gun was fired into the glass sliding door and debris from the shot struck Mr McEachran’s arm, highlighting the risks of firing a gun into premises.
37At the next premises, given their attempts to keep the door closed, you would have been aware that there were occupants of the premises and that they were near the front door at the time the gun was discharged into the brickwork above the front door. This charge of discharge firearm is more serious than the one before it.
38It is very fortunate indeed, in relation to these two events particularly, that the outcome wasn’t more serious.
39It is apparent that the residents of each premises were entirely unsuspecting, apparently innocent and very vulnerable in the circumstances. Each incident occurred in a private home, an environment in which the residents are entitled to feel safe.
40In my view there needs to be a clear message sent to the community that access to firearms by offenders who have no right to do so, who then choose to use that weapon, is not something that will be tolerated. As such, considerable weight needs to be given to the principles of general deterrence and denunciation - constituting a warning to those considering committing similar offences. Protection of the community is of course paramount.
Victim Impact Statements
41Victim Impact Statements authored by Ying Liu and Dazhan Deng were tendered at the plea hearing. They are both persons in their 60s.
42The purpose of a victim impact statement is to give those affected by your crime the opportunity to participate in the criminal justice process by informing the court about the effects of the crime upon them.
43Ying Liu speaks of fear that the gunmen would return. Her fear remains and is constant. She observed the impact on her husband to be such that she described him as “almost handicapped” and that she was unable to work much as she needed to look after him. They have isolated themselves in their home in response ever since.
44Dazhan Deng describes not being able to sleep and that when he closes his eyes he still sees two people holding a gun. He has frequent nightmares. He has been diagnosed with depression and requires medication. He has been unwilling to leave his home.
45The impact of your offending on this older couple continues some 18 months post the events, and highlights that such moments in time can have enduring effects on people's day-to-day lives and sense of safety
46I have little doubt that the other victims are likely to have had a similar response and found the use of a gun particularly terrifying.
Plea of Guilty
47You indicated your willingness to plead guilty to the charges on this indictment after a contested committal and following participation in the case conferencing process which forms part of the County Court’s response to the COVID-19 pandemic.
48Case conferences are designed to discuss pathways to resolution where possible or to narrow the issues prior to listing any trial. Your decision to resolve and plead guilty in the context of the COVID-19 pandemic has additional utilitarian value as it provides certainty and finality to all parties in circumstances where the Court’s operations have been significantly disrupted and many trial dates remain as yet unfixed.
49In the recent decision of Worboyes v The Queen [2021] VSCA 169 at [39], the Court of Appeal said:
“ a plea of guilty entered during the currency of the COVID-19 pandemic is worthy of greater weight in mitigation than a similar plea entered at a time when the community and the courts are not afflicted by the pandemic’s effects. A plea of guilty during the pandemic ordinarily should attract a more pronounced amelioration of sentence than at another time…”
50No complainants were cross-examined at committal, and I note that a number of charges you faced at committal have subsequently been withdrawn. In that sense, your plea to the charges on the current indictment can be said to have been given at an early stage.
51Your plea also has utilitarian value in saving the court the time and expense of contested proceedings, and witnesses the need to attend court and give evidence - evidence which would, by its very nature, be about particularly distressing events.
52I do accept that there is some indication of remorse in your instructions to resolve the matter.
53These factors will all be taken into account in your favour.
54In your case the conferencing process commenced in February of 2021 and you were arraigned and entered your guilty pleas on 14 April 2021. There was some delay in finalising the matter whilst a psychological report was obtained, hampered by the psychologist getting access to you on remand. This had led to delay such that you were not in a position to be sentenced until today, 8 October 2021. During this period the matter has continued to hang over your head. I take that into account in a general sense.
Criminal History
55Mr Fiscalini, you have an extensive and admitted criminal record, beginning in November 2013 in the Melbourne Children's Court with charges of theft of a motor vehicle, theft and criminal damage, for which you received a 12-month good behaviour bond.
56Throughout 2014 you had a number of appearances before the Children's Court for a wide range of offending including theft of a motor vehicle, going equipped to steal, wilfully damaging property, driving offences, escape from lawful custody, carrying a controlled weapon, reckless conduct endangering serious injury, resisting police and various breaches of bail condition bail conditions. You were initially placed on a youth supervision orders, without conviction, and then probation, also without conviction, for a period of 6 months.
57In 2015, you were again before the Melbourne Children's Court on a number of occasions for a similar range of offending. On 14 September 2015, that included charges of theft from a motor vehicle, unlicensed driving, intentionally damaging property, recklessly causing injury, theft of a motor vehicle, drive in a manner dangerous, reckless conduct endangering serious injury, reckless conduct endangering life, possess a controlled weapon, failing to obey a lawful direction of police, breaches of supervision order and bail, you were convicted and placed in a Youth Residential Centre for what appears to be a period of 7 months .
58On 29 September 2016 at the Melbourne Children's Court you were again placed on a youth supervision order with treatment conditions, without conviction, for a period of 12 months for charges which included theft of a motor vehicle, fail to obey lawful direction of police, reckless conduct endangering serious injury, dangerous driving while pursued by police, armed robbery and a range of dishonesty offences.
59On 3 May 2017, you were before the Ringwood Children's Court in relation to charges which included theft of a motor vehicle, unlawful assault, reckless conduct endangering serious injury, armed robbery, driving offences and breach of the Youth Supervision Order imposed in 2016. You were sentenced to time already served in a Youth Justice Centre and placed on a Youth Supervision Order for a period of 9 months.
60You were placed on probation for a period of 6 months in June of 2017 for charges of unlawful assault, affray, burglary and intentionally damaging property.
61On 8 November 2017, at the Ringwood Children's Court, you were dealt with for charges including theft of a motor vehicle, negligently dealing with the proceeds of crime, criminal damage, driving in a manner dangerous, dishonestly receiving stolen goods, reckless conduct endangering serious injury, and breaches of the probation and youth supervision orders you were subject to. You were convicted and placed in detention in a Youth Justice Centre for a period of 9 months.
62In 2018, you again had a number of appearances before the Children's Court. On 9 February 2018 you were again placed on probation for a charge of unlawful assault.
63On 26 April 2018, at the Ringwood Children's Court, you were sentenced to a further period of 12 months in a Youth Justice Centre for charges which included theft of a motor vehicle, reckless conduct endangering life, and drive in a manner dangerous, weapons charges and failing to stop vehicle on police direction are also included.
64On 22 November 2018, at the Melbourne Children's Court, you were convicted and placed on a 3-month Youth Supervision Order for charges of criminal damage, unlawful assault and recklessly cause injury.
65Closest in time to the offending before me, on 10 December 2019 you were dealt with at the Melbourne Magistrates' Court for charges of theft of a motor vehicle, theft, unlicensed driving, making a false report to police, dealing with property suspected to be proceeds of crime, handling stolen goods, and committing an indictable offence whilst on bail. At that time you received an aggregate sentence of 46 days imprisonment in adult custody, reckoned as already served.
66That was your first appearance in the adult jurisdiction. Up until that point you had, as outlined, appeared in the Children's Court, a jurisdiction holding a sentencing regime which factors in the immaturity of youth and focuses, rightly, on rehabilitative and therapeutic intervention. You do not appear on the face of it to have responded to those interventions nor the short sharp shock of 46 days of adult gaol.
67You had only been out of custody for about two months at the time of your offending the subject of the indictment and summary charges.
68You are not to be punished for your criminal history a second time, but it is relevant to the weight that this court must give to the principles of specific deterrence, denunciation, and indeed protection of the community. It is obviously relevant to the assessment that needs to be undertaken as to your prospects for rehabilitation.
69Some explanation for this history that I have just referred to arises in your personal circumstances and I turn to those now.
Personal Circumstances
70In helpful and detailed submissions tendered on your plea, your Counsel sets out a difficult personal background.
71You were born to parents Melissa Robbins and Jason Fiscalini on 28 October 2000 and are now 20 years of age. Your parents were very young at the time of your birth, each between the ages of 14 and 16, and were in very difficult circumstances themselves, having met in residential care and struggled with substance abuse.
72You report having always had contact with your father, who has been a chronic heroin user and served periods of imprisonment since your birth, and you have most recently spent time with him in custody.
73You have a number of half-siblings on your mother's side, with whom you report having good relationships.
74You grew up living with your mother at various homes, but were removed from her care when you were 7 years old in the context of then concerns about your exposure to inappropriate sexualised and violent behaviour, parental substance abuse, transience and lack of stability, as well as your own apparent learning difficulties and problematic behaviours.
75From age 7 to 10 you lived with your paternal great aunt in Ferntree Gully, and were then returned to your mother's care.
76For some time you were spending four days a week in home-based care/residential units and a number of days a week with your mother. You report being placed in foster care homes where you suffered emotional abuse, and that you ultimately stopped accessing the residential unit and spent the majority of time with your mother.
77
As a result, you have had very limited schooling and did not attend beyond
Grade 6. You also have a very limited employment history, having worked briefly at a radiator repairs workshop and later with your stepfather, who is a sheet metal worker.
78Reinforced by the expert evidence to which I will shortly refer, I accept that this background gives application to the Bugmy principles (and further considered in DPP v Drake [2019] VSCA 293), that is, the effects of social disadvantage and trauma during formative years do not diminish with time, notwithstanding any criminal history.
79In part, they explain that history. I accept that your moral culpability should be reduced as a result of your social deprivation and disadvantage in your formative years. Your moral culpability for the offending cannot be equated with that of a person who had committed the same offending, but who had had the benefit of a stable and normal upbringing during childhood and adolescence.
Expert reports
80Tendered on your plea were two psychological assessment reports authored by Gina Cidoni, Psychologist, based on assessments conducted by her on 26 March 2020 and then on 11 July 2021.
81Ms Cidoni’s reports are not the subject of challenge.
82You expressed your remorse to her.
83Ms Cidoni sets out your medical and psychological background, noting diagnoses in 2012 of post-traumatic stress disorder and attention deficit hyperactivity disorder for which you were prescribed Ritalin. This apparently resulted in positive behaviour change, but you did not take that medication long-term. You have been admitted to psychiatric wards due to experiencing psychosis and recalled that the most recent admission was in 2019.
84You reported to Ms Cidoni having commencing alcohol use at age 11, and also using cannabis, methamphetamines, Xanax and GHB. In your younger years you were apparently admitted to hospital and secure welfare placements in the context of heavy intoxication. I do accept that drug use had direct connection to your upbringing.
85Ms Cidoni conducted psychological testing and concluded that you have considerable intellectual difficulties, with a full-scale IQ of 60, falling in what she described as the impaired range, where more than 99 per cent of people your age would do better. Test scores indicate that you do have an intellectual disability.
86She also concluded that you have limited adaptive and coping skills, and that personality testing indicated variable moods with prominent hyperactivity, anxiety, disturbance of thought and behaviour while using substances, as well as post-traumatic symptoms. You also presented with major depressive disorder and generalised anxiety disorder.
87In Ms Cidoni’s opinion, your traumatic and disadvantaged background has severely affected your formation.
88Overall, you presented to her as impressionable, immature and disinhibited due to your cognitive impairment, with continuing symptoms of attention deficit hyperactivity disorder that impact overall on your control over your own behaviour and your willingness to indulge in substance abuse. She opines that in relation to the offending you were significantly impaired by your low cognitive function and as a result of your chronic mental illness such that :
“his capacity to understand the wrongfulness of his actions, to think clearly and make calm reasoned decisions and appropriate judgements, were markedly reduced.”
89Whilst raising obvious concerns about how best to protect the community, I accept that her conclusions, in the context of your dysfunctional upbringing, allow for considerable amelioration of your moral culpability and moderation of both general and specific deterrence.
90Overall she factors into her opinion your unfortunate upbringing, your low cognitive function and your recognised mental health conditions. These factors, in my view, cannot be seen in isolation. They all have their role to play in the context of your life as it presently stands and in the context of the remand that you have experienced which I will also refer to.
91Ms Cidoni raises concerns about your ability to cope in the prison system due to the combination of your cognitive impairment, severe anxiety, immaturity, impressionability and what you have experienced to date of the remand setting. I am satisfied that the hardship experienced by you as a combination of these factors is increased. Further, that a less severe sentence is justified as there exists a serious risk that imprisonment could have a significant adverse effect on your mental health.
Youth
92Your young age at the time of your offending, 19 years, does bring to the forefront of the sentencing mix the principles in relation to young offenders.
93Youth of an offender has obvious relevance.
94In Azzopardi; Baltatzis; Gabrielv R [2011] VSCA 372; at [34]-[36], Redlich JA made clear the reasons to prioritise youth as a sentencing consideration. These include that:
(a) Young offenders are immature, and may not fully appreciate the nature, seriousness and consequences of their criminal conduct;
(b) It includes the recognition by the Courts of the increased potential for young offenders to be rehabilitated, which is obviously in the public interest; and
(c) The recognised fact that incarceration can impair, rather than enhance, a young offender's prospects of rehabilitation.
95I accept that these considerations all have application to your particular case.
96Whilst there are occasions on which the sentencing principles as they relate to youth can take a "back seat", given your reduced moral culpability this is not one of those cases and your youth should be given both proper consideration and proper weight.
Rehabilitation
97On any view of it, given your personal difficulties and prior criminal history, your prospects for rehabilitation would appear as guarded.
98However, one factor that may have some relevance to those prospects is your remand experience.
99As a direct consequence of your offending the subject of the indictment and summary offences before me, you have spent some 514 days on remand, your longest exposure to that or any other setting of confinement. You have been on remand for these matters since a filing hearing on 12 May 2020.
100This is coupled with the fact that your period of remand has been during the Corrections response to the COVID-19 pandemic which, in general terms, has meant less access to freedom of movement, limits on personal visits and less access to programs and therapeutic interventions.
101This, in my view, makes the remand and sentenced prisoner experience more difficult than it would usually be and is an additional factor I take into account.
102In very recent weeks, you have been subject to full lockdown in the Melbourne Remand Centre as a result of COVID-19 being identified in that prison. This has you confined for 24 hours and adds to the burden of your remand, as does obvious concern for your own wellbeing in that context.
103In addition, in a somewhat extraordinary event, your time in custody has involved you being stabbed by your co-accused during your committal hearing.
104Your experience of the custodial setting to date is capable, factoring in all those matters, of acting as both a sanction and a deterrent into the future.
105Your prospects for rehabilitation involve the fact that you have one infant son born whilst you have been on remand. I understand this to be your first child. Whilst you are no longer in a romantic relationships with your son's mother, I understand that she does facilitate contact between you and your son and has been able to bring him on some visits; otherwise you have seen your son on Skype.
106You see the relationship with you son and the example that you wish to set for him as a primary motivator to make positive change in your life. I encourage you to focus on that insight.
Sentencing Principles
107The basic purposes for which a court may impose sentence are just punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community. In sentencing you, I must have regard to a range of matters such as the seriousness of the offending, your culpability for it, your personal circumstances and those of your victims. I must also balance the interest of the community in denouncing criminal conduct with the interest of the community in seeking to ensure, as far as possible, that offenders are rehabilitated and are safely reintegrated into society.
108I have taken into account the relevant sentencing purposes referred to in s 5 of the Sentencing Act and the principles of totality and proportionality. I have taken into account current sentencing practices for the offences to which you have pleaded guilty, noting the limited sentencing for the discharge firearm charge. Neither party referred me to any comparative cases.
109I now turn to sentence.
110For charge 2, handling stolen goods you are convicted and fine $1,000. I impose the same penalty for the summary charge, the bail offence.
111In relation to charge 1, prohibited person possess firearm, you are convicted and sentenced to 14 months imprisonment .
112In relation to charge 3, aggravated burglary, you are convicted and sentenced to 3 years and 6 months imprisonment. This is the base sentence.
113In relation to charge 4, common law assault, you are convicted and sentenced to 8 months imprisonment, bearing in mind the low maximum penalty.
114In relation to charge 5, discharge firearm recklessly, you are convicted and sentenced to 2 years and 8 months imprisonment
115In relation to charge 6, second in time and more serious, you are convicted and sentenced to 3 years imprisonment.
116Two months of charge 1, two months of charge 4, and 12 months of each of charges 5 and 6 are cumulative on each other and the base sentence.
117Total effective sentence is one of 5 years and 10 months.
118I reckon 514 days as having already been served.
119I fix a non-parole period at 3 years and 6 months. I see merit in an extended period of supported transition into the community. This would offer you the mechanism to foster your rehabilitation and provides further community protection through that process and the services that should be made available to you. There is also protection in the responsiveness of the parole system to non-compliance.
120Section 6AAA of the Sentencing Act requires me to state the sentence that I would have imposed if you had in fact been found guilty rather than entered your pleas. If not for your pleas of guilty, I would have sentenced you to a total effective sentence of 7 years and 6 months imprisonment, with a minimum of 5 years and 6 months before being eligible for parole.
121Now, before I leave the Bench, anything I've missed, Ms Saville?
122MS SAVILLE: Nothing you've missed, Your Honour, but Your Honour was a little bit quick on the cumulation orders and I missed them. If I may just ask Your Honour to repeat that. I think you said - - -
123HER HONOUR: No problem at all. Two months of charge 1, two months of charge 4 and 12 months each on charges 5 and 6 are cumulative on each other and on the base sentence.
124MS SAVILLE: Thank you, Your Honour.
125HER HONOUR: Mr Barker?
126MR BARKER: There's nothing further, Your Honour, I understand.
127HER HONOUR: I will leave you to speak to your client privately and at this stage I'll close the court sine die, thank you.
128COUNSEL: As Your Honour pleases.
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