Director of Public Prosecutions v Gabress
[2022] VCC 2301
•14 December 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 21-01764
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MAZIN GABRESS |
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JUDGE: | HER HONOUR JUDGE KARAPANOGIOTIDIS |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 7 November 2022 |
DATE OF SENTENCE: | 14 December 2022 |
CASE MAY BE CITED AS: | DPP v Gabress |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2301 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – Sentencing.
Catchwords: Theft – Attempted theft – Attempted aggravated burglary – Armed robbery – Attempted armed robbery – Causing serious injury recklessly – Causing injury recklessly – Burglary – Guilty plea – Sentence Indication – Worboyes – Guarded prospects of rehabilitation - Parity
Legislation Cited: ss 5, 6AAA, 18 Sentencing Act 1991 (Vic).
Cases Cited:Azzopardi v The Queen (2011) 35 VR 43; GAS v R [2004] HCA 22; R v Mills [1998] 4 VR 235;. R v Wright [2009] NSWCCA 3; Worboyes v The Queen [2021] VSCA 169.
Sentence:Three years and five months’ imprisonment with a non-parole period of 26 month’s imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr C. Thomson | The Office of Public Prosecutions |
For the Accused | Mr C. Mandy SC | Slades & Parsons |
HER HONOUR:
1Mazin Gabress, you have pleaded guilty to the following charges: six counts of theft; attempted theft; two counts of attempted aggravated burglary; armed robbery; attempted armed robbery; causing serious injury recklessly; causing injury recklessly; and three counts of burglary.
2You also consented to this court hearing one summary charge of commit offence on bail, to which you pleaded guilty.
Circumstances of the offending
3The full circumstances of your current offending are set out in the Summary of Prosecution Opening , dated 4 November 2022.
4In brief, your offending all took place on 12 January 2021 from approximately
5 am until 1.45 pm that day. Your co-accused, Bedel Youssuf, had arrived earlier in Victoria, driving a 2015 Renault Clio, Queensland registration 664 YLN, from his friend, Suleiman Khalif. Between the 11th and 12 January 2021 you were an occupant in this car, along with other co-accused: Tai Maaka;
Daniel Abdelrahman; and Mr Youssuf. You travelled in the Clio from the western suburbs with the intention of finding cars and houses to break into as well as people on the streets to rob.5Your offending, although noted in the opening as nine incidents, is comprised of eight as follows.
Incident 1
6On 12 January 2021 between 5.00am and 5.15am Mr Youssuf was driving the Clio in the Doncaster area. You, along with Mr Maaka and Mr Abdelrahman exited the vehicle, gained entry to a grey Volvo wagon belonging to Wei Zhou. You stole two Victorian driver's licenses in his name from inside the vehicle, and that is Charge 1.
7At approximately 5.15am the Clio stopped at a communal car park at Firth Street and you, along with your co-accused, gained entry to a grey Mercedes Benz sedan belonging to Anita Andrews. You rummaged through the console but you did not steal anything, and that is Charge 2.
8The three of you then gained entry to a vehicle that was parked next to the Mercedes, a white Toyota Corolla sedan, belonging to Young Agbure. You gained entry and stole a driver's licence and Nigerian national identification in the owner's name, that is Charge 3.
Incident 2
9At approximately 5.20am the Clio arrived outside of an address on Bordeaux Street, Doncaster. You, along with Mr Maaka and Mr Abdelrahman, attended the front yard of the address with the intention of forcing entry to steal property from within. Mr Youssuf remained in the car. The home owner, Tariq Hasnie, was asleep inside. At the time Mr Maaka and Mr Abdelrahman were in possession of screwdrivers and you were armed with a metallic tyre iron and a knife. Mr Abdelrahman approached the front security door and unsuccessfully attempted to open it. Mr Maaka unsuccessfully attempted to jemmy the door open with an unknown object. You began looking through the front windows before returning to your vehicle and leaving. That is Charge 4.
Incident 3
10At 5.30 am the Clio stopped outside an address on Olympus Drive, Templestowe Lower. You, Mr Maaka and Mr Abdelrahman, again exited the vehicle. Two of you attended the front yard of the address with one attending the front door. Your co-accused were armed at the time. Ms Sherri Watkins and her two children were asleep inside the address. One of you opened the front security door, began kicking the front door, in an attempt to force entry. Ms Watkins, whose bedroom was located next to the front door, awoke and called out, 'What are you doing?' A male voice replied, 'I'm trying to break down your fucking door'. You and your co-accused continued kicking the front door, damaging the internal lock mechanism, but you were unable to gain access, left and returned to your vehicle. That is Charge 5.
Incident 4
11At approximately 5.34am the victims, Caroline Gillies and Peter Morris, were on their usual morning walk. From within the Clio you observed them walk past the Coles Express service station located on Doncaster Road, Doncaster, and you agreed to rob them. The Clio performed a number of U-turns and ultimately pulled up in front of Ms Gillies and Mr Morris as they approached
545 Doncaster Road. Mr Maaka exited the driver's seat. Mr Abdelrahman exited the front passenger door and approached Mr Morris and started punching him. You exited the rear right passenger door. During the altercation one of you approached Ms Gillies and demanded she give you all her cash while brandishing a knife. Ms Gillies stated that neither of them had any cash. One of you then lunged towards Ms Gillies and stabbed her with the knife, puncturing the right side of her abdomen, causing a laceration to her liver. That is Charge 8.12On realising that she had been stabbed she offered the unidentified offender her iPhone, which they took before moving towards Mr Morris, and that is Charge 6, armed robbery.
13Ms Gillies begged for all of you to leave them alone and began screaming for help. The unidentified offender demanded, 'Give me cash, give me cash or I'll shoot you', while lunging at Mr Morris with a kitchen knife. Mr Morris stated that he did not have any cash and offered his mobile phone, which was not taken, Charge 7. Ms Gillies yelled to Mr Morris to run to the service station. As he turned to do so an unidentified offender stabbed him, causing a deep laceration to his right little finger, and penetrated his right, lower back. Mr Morris also received a fracture to his left nasal bone as a result of the punches, Charge 9.
14You all then returned to the Clio and left the scene. Police and paramedics arrived a short time later. Ms Gillies was in a serious condition as a result of the stabbing. Both she and Mr Morris were transported to the Royal Melbourne Hospital by ambulance for urgent medical treatment and Ms Gillies was admitted to the intensive care unit for treatment, as indicated in the Crown opening. Ms Gillies sustained serious injuries as a result of the stabbing.
15After this incident at approximately 6.26am you attended an associate's residence in Doncaster. A short time later, while at the address, you and
Mr Maaka requested the keys to the Clio from Mr Youssuf and he gave them to you. You then left the address with Mr Maaka and police observed the Clio travel east on Doncaster Road and took note of the registration. Mr Maaka was driving at that stage.
Incident 5
16At approximately 9.30am the victim, Tuan Vu, was delivering parcels in the Sunshine area. When Mr Vu attended the front of a residence on Kinnane Crescent to make his delivery Mr Maaka parked the car behind his car and you exited the vehicle and began removing the parcels from his car and loading them into yours. He observed you doing this and called out and started to run towards the Clio, which you had entered. That is Charge 10, theft. Mr Vu attended the passenger side of the Cleo and attempted to open the front passenger door. You started kicking out at him from inside the car while Mr Vu was holding onto the outside of the door and Mr Maaka frantically accelerated. Mr Maaka alone faced charges in respect of this conduct.
Incident 6
17At approximately 9.55am the Clio attended outside an address on Chelmsford Crescent, St Albans. The homeowners were not home at the time. You both exited the vehicle and approached the address. You gained entry by scaling a perimeter fence to the backyard and forcing a rear door. Once inside you ransacked the address, stealing jewellery and cash. The house alarm was activated and this, along with the sound of breaking glass, attracted the attention of neighbours, who made observations of the two of you leaving the premises and getting back into the car, Charge 11.
Incident 8
18At approximately 12.50pm the Clio was parked on the corner of Annandale Mews in The Strand, Point Cook. An unidentified Caucasian male exited the Clio and approached the front door. No one was home at the time. The unidentified male rang the doorbell, knocked several times, and then left. Approximately five minutes later you and Mr Maaka attended the front of the address.
Mr Maaka was carrying a green coloured bag concealing a tyre iron and you were carrying a white pillowcase concealing an unknown weapon. You forced the front security door and forced open the secondary door to gain access to the house. Once inside you ransacked the bedrooms, stole jewellery, personal documentation, handbags, purses and perfume, Charge 13 and 14. The unidentified male started to beep the horn in the car, called out to you, and you returned to the vehicle and left.
Incident 9
19At approximately 1.45pm the Clio attended outside an address on Tournament Drive, Point Cook. You exited the car and attended the front door while Mr Maaka remained in the driver's seat. Mr Maaka maintained a lookout while you forced the front door and gained entry to the address. No one was home at the time. You ransacked every room on the first floor, stealing jewellery, clothing, bank cards and personal documentation. Mr Maaka observed witnesses and began to beep the horn, causing you to return to the car, and the two bags filled with stolen property.
20At approximately 3.38pm the Clio attended the rear car park of an address on Pascoe Vale Road, Glenroy. Mr Maaka reversed the vehicle into a secluded corner. You and Mr Maaka exited the car, began sorting through the property you had stolen during the course of the day. At approximately 4.00pm police attended the car park and located both of you. You surrendered to the police and you were arrested. You unsuccessfully attempted to flee. Some of the stolen items from the day were recovered by police in the vehicle.
Gravity of the offending
21In considering the gravity of your offending, Mr Gabress, I have taken into account the maximum penalties prescribed by Parliament. Your offending covers a range of incidents which vary in seriousness, from what could be regarded as not very serious offending to objectively serious offending.
22Incident 1 involves two charges of theft of motor vehicle, and one charge of attempted theft. The offending is of a similar character and occurred within minutes of each other. Along with your co-accused you gained entry to the respective vehicles without causing visible damage, and stole or attempted to steal items from them. In all the circumstances I regard this as relatively low level offending.
23Incidents 2 and 3 are attempted aggravated burglaries that occurred within about ten minutes of each other but at different locations. This offence is an inherently serious one, as reflected in the maximum sentences. You attended these homes in the early hours of the morning. You were in company with others and you and your co-accused were in possession of weapons. In assessing the subjective seriousness I note that the offending was not of long duration and you left upon the unsuccessful attempt to gain entry into the homes. There was no physical confrontation with any of the occupants and generally no damage to property.
24In Incident 3 the occupant of the home did hear you and called out. Upon doing so you and your co-accused continued to kick the door and damage the internal lock mechanism.
25Incident 4 involves the offending against Mr Morris and Ms Gillies. These people were out for their routine morning walk when you and your co-accused decided to target them. You advanced upon them and, completely unprovoked, you confronted and attacked them. One of you lunged towards Ms Gillies and stabbed her with the knife, puncturing her abdomen and injuring her liver. The injury caused to her was serious and required hospitalisation and extensive medical treatment. As submitted by the prosecutor, both at the indication hearing and on the plea, I proceed on the basis that there is no evidence of any permanent or ongoing physical injury from this incident to her, though obviously the consequences for Ms Gillies have been pervasive as she outlines in the victim impact statement, which I will refer to shortly.
26To be clear, Mr Gabress, I will not sentence you on the basis that you personally committed these acts. The prosecution is unable to nominate who committed the acts with the knife or the principal offender and instead put the case against you on a complicity basis. You will not receive the same punishment as would have been appropriate had I sentenced you on the basis that you personally performed these acts. Notwithstanding, given the circumstances of this offending, I regard it as serious and your culpability as high. In company with others, you set upon and viciously attacked Ms Gillies and Mr Morris, threatened them, made demands and brandished and used a knife.[1]
[1]R v Wright [2009] NSWCCA 3; GAS v R [2004] HCA 22.
27After this offending you returned to your associate's home and then you and
Mr Maaka left alone in the Clio with you as a passenger and you continued your offending. Incident 6, 8 and 9 involved burglaries committed by you and
Mr Maaka. These offences were committed on residential premises, which I consider increases their objective seriousness.28It was submitted on your behalf that at the time of the offending you were under the influence of a combination of drugs and alcohol. At the time you were plainly disinhibited, extremely lacking in self-control, attempting to get money or property for more drugs. To use your own words to psychologist, Marlese Bovenkerk, you were, 'Just on a rampage'.
Victim impact
29Mr Gabress, I received a victim impact statement from Mr Gillies, Mr Morris,
Ms Cherie Smith-Hoyer, and Ms Barbara Smith. Ms Gillies says that she will never be the same after this attack. 'I'll never be the same. I'm constantly on edge and struggle to be on my own. I'm anxious in public places and crowds and rely on my children and partner to reassure and protect me'. She refers to her time in hospital and the several operations that were required to overcome the damage to her liver, internal bleeding and infections. She refers to the profound physical and psychological impact or your offending, and also the way it has changed her daily life. One of the most devastating losses is that she and her partner are no longer able to go for walks together every day. This was something that was an important part of their relationship and allowed them to exercise and spend quality time together.30In his victim impact statement Mr Morris speaks of the impact of your offending and feeling anxious, uncomfortable and vulnerable ever since the attack. He and Ms Gillies are no longer able to enjoy walks together. He has had ongoing counselling and is now cautious in public and uncomfortable in crowded places.
31Ms Smith-Hoyer, the victim of Incident 3, states that she and her children had to move from their home as they felt unhappy and frightened. Ms Barbara Smith, the victim of Incident 6, says that she now feels anxious and insecure in her home of 55 years. She lost inherited jewellery that can never be replaced. She did not sleep for weeks after the break-in.
32While such matters cannot overwhelm the sentencing process, there can be no doubt, Mr Gabress, that your offending has had a serious impact upon your victims, and I take this into account in sentencing you.
Plea of guilty and remorse
33Your matter resolved in a sentence indication hearing on 31 October 2022. While it is not a plea at the earliest opportunity your plea does warrant a substantial discount in sentence. By your plea victims and witnesses have been spared the further delays and distress involved in a trial and in giving evidence. As the prosecutor accepted, though entered at a later stage, your plea carries significant utilitarian benefit. Also I accept that your plea is particularly valuable in circumstances where it has been entered during the currency of the pandemic and should attract a more pronounced amelioration of sentence than a plea entered at another time.[2]
[2]Worboyes v The Queen [2021] VSCA 169.
34Your counsel, Mr Mandy, submitted that you were aware that your actions have affected others and that you made a terrible decision on the day in question and that you are very sorry. According to Ms Bovenkerk, during her assessment you did not attempt to minimise or deny your behaviours, reporting that you, 'Put yourself in the situation of taking drugs. Your decisions were not the best but at the end of the day you were the one that took the drugs.’
Personal circumstances
35Your personal circumstances were canvassed in detail in the psychological reports of Gina Cidoni, of 23 October 2022, and Ms Bovenkerk, of 9 December 2022, and also by your counsel, Mr Mandy. In brief, your family are originally from Eritrea and are Sunni Muslim. Your father, Mr Hassan Gabress, came to Australia with his wife, your mother, in 1997. They managed to escape the civil war in Eritrea and were granted humanitarian visas as they had been targeted by government forces. They have not returned since although some family members remain in Eritrea and face constant stress.
36The family initially settled in Adelaide where they had friends. You were born, followed by your four sisters. Your mother works part time for Australia Post and your father runs and operates his own cleaning business. Your family remain supportive of you and have attended court. You appear to have grown up in a loving and stable household. You did well at school, excelled at soccer and you were awarded a scholarship to Henley High School. Ibrahim Mohamed, who has known you since birth, describes you as a, 'Very fit and talented soccer player, who loved sports'. You got into Henley after passing a series of talent examinations in soccer and sports. Your younger sisters always looked up to you and it seems that in your earlier years you were busy with school, soccer and family. Your sisters, Maal and Maab, in their letters describe you as being family orientated and as providing them with love, support and assistance. They describe you as generous, intelligent and hardworking.
37In 2015 or 2016, aged around 16, you began associating with negative peers, started staying out late and commenced using drugs and alcohol. This caused tensions within your family and had a significant impact on your schooling and sports. Your performance deteriorated but you still managed to finish school and you kept playing soccer in the NPL in South Australia, just below the national league. I note here that when you were aged 15 your mother gave birth to another daughter, who tragically died in her first year of life. This had a profound impact on you and likely provides some relevant context to how things started to fall apart in your life.
38In January 2017 you and your family moved to Roxburgh Park in Melbourne. Your parents decided that there were better opportunities here and they also wanted to move you away from the negative influences. You were 18 at the time and had just finished high school. The move was not welcomed by you and was a significant upheaval and you struggled to adjust and fit in.
39In Melbourne you wanted to study health science but needed another English subjects, which you had not completed. Unfortunately your life continued on the same path. You gravitated towards negative peers, lacked a stable daily routine, and you continued to take drugs and alcohol.
40You were involved with Youth Justice as a result of various offending but were exited from its supports in April 2018. The previous progress report indicates that you were capable of engaging with them and that you have, with adequate supports in the past, achieved periods of stability.
41You have a very limited employment history. Your first job was for your father's cleaning business in around 2019. You then moved to a carpentry job and started a TAFE course in building and construction. An altercation involving another student led to the suspension of your enrolment. Shortly thereafter COVID-19 hit and disrupted things further. The jobs dissipated. You mostly stayed at home. As Mr Mandy put it on your behalf, you were idle, isolated and directionless. Boredom was relieved by drugs and alcohol and socialising with the similarly inclined.
Prior criminal history
42Your prior history, Mr Gabress, dates back to 2018. You have a prior history for driving matters, dishonesty offences, drug offences and charges which include robbery and assault and a threat to inflict serious injury. You have received a range of dispositions including adjourned undertakings, fines, a community corrections order and imprisonment. This period on remand represents your longest experience of custody. Your prior history is relevant and, in particular, relevant to considerations of specific deterrence, community protection and your prospects of rehabilitation.
Factors in mitigation
43A number of important factors were advanced on your behalf by Mr Mandy in mitigation as follows.
Youth
44You are currently 23 years of age and you were 21 at the time of your offending. Both Ms Cidoni and Ms Bovenkerk referred to your youth as an important consideration. Ms Cidoni considered that you presented as immature for your age. She states at paragraph 81:
His young age is another factor to consider regarding the offending, which is linked to his brain under-development affecting response inhibition, regulation of risks and rewards and the regulation of emotions and competence in decision making. While he understand risks cognitively at his age, these are also weighed up socially and emotionally where the influence of peers and sense of belonging can heavily impact decisions.
45I regard your youth as a particularly important consideration in sentencing you and I have had regard to the well-established principles. Rehabilitation of young offenders is one of the great objectives of the criminal law, and the court recognises the potential for young offenders to be redeemed. It also benefits the community as the effective rehabilitation of a young offender in the long term better protects the community from further offending.[3] In all the circumstances I regard rehabilitation to be a primary consideration in your case with some adjustment given the gravity of your offending.
[3]R v Mills [1998] 4 VR 235; Azzopardi v The Queen (2011) 35 VR 43.
Mental health
46At paragraph 76 of her assessment Ms Cidoni confirms that your intellectual capacity was low/average with no test signs of major cognitive disturbance. At paragraph 77 she opines:
The clinical evaluation indicated the following clinical diagnoses and/or personality disorders in line with the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5)
(i) Generalized Anxiety Disorder (GAD)
(ii) Xanax and Cocaine Use Disorder (in enforced remission)
47In her report Ms Bovenkerk undertook various testing over the course of two assessments. She considered that you did not appear to meet the full diagnostic criteria for Generalised Anxiety Disorder and that your profile was better accounted for by a diagnosis of Adjustment Disorder with anxious mood. It appears that in response to your current circumstances involving ongoing isolation within a management unit, you have developed an adjustment disorder. She also raised the possibility of attention deficit hyperactivity disorder, which requires further assessment.
48Mr Mandy submits that your underlying issues remain untreated and a lengthy prison term will not alleviate them at all. Release into the community at some stage in the future without significant structure and support would only exacerbate them. Ms Bovenkerk notes at paragraph 124 that this potential for your current mental state to deteriorate further and develop into a more severe form of anxiety disorder in the absence of appropriate psychological treatment to promote adaptive coping. I note that presently you do not receive any mental health assistance in custody and you are not medicated. While on the material no Verdins principles are enlivened in your case or relied upon, I take into account your circumstances as outlined in the reports.
Time in custody
49Your counsel, Mr Mandy, also made the submission that custody has been more onerous because of the COVID-19 related restrictions. In addition, in the last 20 months or so you have been held in isolation within a management unit. Both Ms Cidoni and Ms Bovenkerk refer to the difficulties you have had in adjusting to prison life. You have apparently been involved in multiple incidents. You exhibit significant interpersonal difficulties that tend to culminate in aggressive behaviours. I take into account, Mr Gabress, your more arduous conditions in custody in sentencing you.
Prospects of rehabilitation
50While your prospects of rehabilitation are guarded, you cannot be said, I agree, to be beyond redemption, and any sentence imposed should maximise your chances at rehabilitation. As submitted by Mr Mandy, you are a young man who must be redeemable for your benefit and ultimately the community's. Both Ms Cidoni and Ms Bovenkerk conducted risk assessments using well-established tools, which generally indicated that you present a moderate to high risk of future violent offending.
51Ms Cidoni also provided the following opinions at paragraphs 82 and 83 of her report:
His coping in prison is poor given his report of incidents and lengthy isolation period. This experience has caused maladjustment and this prolonged situation could change his life trajectory and have long term impacts on his mental health. Known effects include anxiety, depression, anger hostility, hypersensitivity, problems with communication and socialising, poor impulse control, social withdrawal and self-harm. Mr Gabress would be assisted with an order to undergo rehabilitative treatments incorporating drug education, psychotherapy to build, to promote maturity, deal with his presenting symptoms, promote his vocational and other prosocial involvements, relapse prevention, and improve his coping skills to reduce reoffending risk.
52Ms Bovenkerk also recommends a sentence that incorporates a period of support and supervision to assist in your transition between prison and the community, including offence specific treatment, psychological interventions and drug and alcohol counselling. She states also that there are several protective factors that serve to mitigate your recidivism risk, including the absence of evidence of a major mental illness, or violent ideation or intent, and your recognition that you require treatment to address your substance use. You also have available accommodation, employment and family support.
Co-accused
53As I have already noted, Mr Gabress, in addressing the circumstances of the offending, you offended with other co-accused. Mr Youssuf pleaded guilty to one charge of theft and one charge of attempted aggravated home invasion. He undertook to give evidence, I note, against other co-accused, and on
14 October 2021 he was sentenced to three months' imprisonment on the theft and nine months on the attempted aggravated home invasion, to be served concurrently. Given the number of charges Mr Youssuf faced and the undertaking he gave, I consider that a disparity in sentence is justified in this case.54Mr Maaka pleaded guilty before me on 2 December 2021 and was sentenced to a total of two years' imprisonment. There were some discernible differences between both the offending Mr Maaka pleaded guilty to and his personal circumstances. Briefly, Mr Maaka was not charged with offences relating to the use of the knife either directly or on a complicity basis and, in particular, he was not charged with causing injury, or any cause injury offence, against Ms Gillies. I do note that in Incident 8 he pleaded guilty to a home invasion, which is a materially different offence to what you have pleaded guilty to as your charge has a lower prescribed maximum sentence and does not attract the
Category 2 regime. Also Mr Maaka had a number of relevant factors personal to him, including an acquired brain injury and the risk of deportation, though I do note that he had a more extensive prior criminal history to yours.55I consider parity remains a relevant consideration. It is an aspect of equal justice. However, in your case a degree of adjustment or disparity is required and can be explained by the differences I have indicated.
Sentencing principles
The basic purposes for which a court may impose a sentence are punishment, general, specific deterrence, rehabilitation, denunciation and protection of the community. As I have already indicated, I regard your youth as an important consideration in the instinctive synthesis and rehabilitation a primary sentencing purpose. Put simply, I indicate that if you were older, Mr Gabress, I would have imposed a substantially greater term of imprisonment.
56I take into account the sentencing guidelines referred to in s5 of the Sentencing Act 1991 (Vic) where relevant to your case. I have also had regard to the sentencing landscape for the offending before me, particularly the attempted aggravated burglaries and the recklessly cause serious injury charge.
57The principles of totality and proportionality are also very important considerations here. I must ensure that the total sentence is appropriate for the total criminality.
58I must ensure that the total sentence is appropriate for the total criminality. In your case this has required me to adjust the orders for concurrency. Quite properly, there was no dispute between the parties that a term of imprisonment is warranted in your case. Taking all relevant matters into account and all submissions and material relied upon by both counsel at both your sentence indication hearing and your plea hearings, I sentence you as follows:
Sentence
59On all charges you are convicted. I am going to go through each charge separately and I will try and do it slowly so counsel can take a note of the terms imposed. So I will go through them now:
Charge 1, four months' imprisonment;
Charge 2, three months' imprisonment;
Charge 3, four months' imprisonment;
Charge 4, 12 months' imprisonment;
Charge 5, 12 months' imprisonment;
Charge 6, 20 months' imprisonment'
Charge 7, 12 months' imprisonment;
Charge 8, 25 months' imprisonment;
Charge 9, eight months' imprisonment;
Charge 10, four months' imprisonment;
Charge 11, nine months' imprisonment;
Charge 12, six months' imprisonment;
Charge 13, nine months' imprisonment;
Charge 14, six months' imprisonment;
Charge 15, nine months' imprisonment;
Charge 16, six months' imprisonment;
Summary Charge, commit an offence whilst on bail, one month imprisonment.
60Charge 8 is the base sentence. I make the following orders for cumulation: Charge 2, three months; Charge 3, three months; Charge 4, three months' cumulation; Charge 5, three months' cumulation; Charge 6, four months' cumulation; Charge 7, two months' cumulation; Charge 9, one month;
Charge 11, one month; Charge 13, one month; Charge 15, one month.61All other sentences are to be served concurrently with the base sentence, which I repeat is Charge 8. That should arrive at 41 months' imprisonment, which is a total of three years and five months. I am going to pause so that counsel can check my calculations.
62MR MANDY: I get 41 months, Your Honour.
63HER HONOUR: Yes, which is three years and five months? Sorry, you are on mute, Mr Thomson.
64MR THOMSON: I am sorry. Your arithmetic is correct, Your Honour. The total effective sentence is 41 months.
65HER HONOUR: Thank you. I am setting a non-parole period of 26 months.. I do that, taking into account the factors that I have relied upon and I have referred to in mitigation, particularly Mr Gabress' youth and the recommendations made in those reports.
66I declare, pursuant to s18, that Mr Gabress has served 701 days as
pre-sentence detention.67I can indicate, pursuant to s6AAA that but for Mr Gabress' plea of guilty I would have sentenced him to total effective sentence of some four years and
11 months with a non-parole period of three years and five months generally.68MR MANDY: Thank you, Your Honour.
69HER HONOUR: I make the disposal order, which I have before me. I make the disposal order in the terms as set out in the amended disposal order. Is there anything further?
70MR MANDY: No, Your Honour, not from me.
71HER HONOUR: All right.
72MR THOMSON: Your Honour, not from me, Your Honour.
73HER HONOUR: All right. Thanks very much. Mr Mandy, we are going to leave the link on for you so that you can have an opportunity to speak to Mr Gabress just to ensure that he followed.
74MR MANDY: Yes.
75HER HONOUR: All right.
76MR MANDY: Thank you, Your Honour.
77HER HONOUR: All right, thank you, counsel.
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