Director of Public Prosecutions v Gardiner

[2019] VCC 222

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

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

DEAN GARDINER
LISA WYKA

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JUDGE:	HER HONOUR JUDGE LAWSON
WHERE HELD:	Melbourne
DATE OF HEARING:	18 February 2019
DATE OF SENTENCE:	28 February 2019
CASE MAY BE CITED AS:	DPP v Gardiner
MEDIUM NEUTRAL CITATION:	[2019] VCC 222

REASONS FOR SENTENCE
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Catchwords:   Criminal Law – Sentencing – Home invasion (assault with firearm) – Conduct placing another in danger of death – Immediate custodial sentence imposed.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Atkinson	John Cain, Solicitor for Public Prosecutions
For Accused GARDINER	Mr J. Saunders	Valos Black & Associates
For Accused WYKA	Mr R. Galbally	Galbally Rolfe

HER HONOUR:

1Dean William Gardiner and Lisa Wyka, you have both pleaded guilty on indictment to a number of offences.

2You both pleaded guilty to a charge of home invasion, assault with firearm and a charge of conduct, to place another in danger of death.  Those two charges relate to events that occurred on 23 June 2018, when together you entered as trespassers, a home situated at 68 Harmon Avenue, St Albans, within an intent to commit an assault and at the time you had with you firearms.

3The conduct endangering life involves you discharging those firearms, placing Errol Ibrahim, Musafa Sozer, Hayden Cook and Manpreet Singh in danger of death.

4Lisa Wyka you have also been separately charged and have pleaded guilty to one charge of cultivating a narcotic plant, namely Cannabis L on
23 June 2018.

5Dean Gardiner, you have been separately charged and have pleaded guilty to one charge of dishonestly undertaking the retention of stolen goods, namely a Victorian registration numberplate, YMR487, knowing or believing such goods to be stolen.

6The offences are serious and that is reflected in the maximum penalties prescribed by law - for home invasion, twenty-five years or 3,000 penalty units.  Home invasion is a Category 2 offence and mandatory imprisonment applies, unless the offender proves on balance of probabilities that there are substantial and compelling circumstances that are exceptional and rare and that justify not making such an order.  Both defence counsel did not seek to discharge that onus in the circumstances of this offending.

7Reckless conduct endangering life, the maximum penalty is ten years imprisonment or 1200 penalty units.  Cultivate cannabis where it is accepted that the drug is in possession, not for trafficking purposes, the maximum penalty is one year or twenty penalty units.

8The Prosecution sensibly in this case made the concession that it was open to the court to make a finding that the cannabis was found in Ms Wyka's possession was for personal use only and hence, the lesser penalty applied.  I accept the possession was for personal use and therefore the lower penalty applies.

9Handle stolen goods, the maximum penalty is fifteen years imprisonment or 1,800 penalty units.

10I shall now proceed to sentence you both, on the basis of the summary of prosecution open that was read at the plea hearing and is marked as Exhibit 1. 

11You both come before the court with no prior criminal history and there are no pending criminal matters.  Mr Gardiner you were 32 at the time of the offending, you are now 33.  Ms Wyka, you were 34 and you are currently 34.

12You have known each other for approximately nine years. You met through Mr Gardiner's former wife.  You had been in an intimate relationship for some months prior to the offending.

13The victims in respect to Charges 1 and 2 are Errol Ibrahim, Muzzafer Sozer, Hayden Cook and Manpreet Singh.

14Ms Wyka, you had previously been in a long term intimate relationship with Mr Ibrahim and the relationship had ended some months prior to the offending.  The Crown opening states approximately six months, however, Mr Galbally your counsel said it was nine months.

15Sozer was well known to you Ms Wyka, being a friend of your younger brother.  He had contacted you the day prior on the 22nd and then on 23 June 2018, on the day of the offending.  Cook is also known to you Ms Wyka and was also in contact with you on 23 June 2018.

16The context to the offending was set out in the opening.  Mr Ibrahim's father, Eircan, had been contacted by you Ms Wyka, via telephone on 20 June 2018. During that conversation, Ms Wyka you said that you were going to shoot Errol in the back of the head and "You would mutilate his body and that you'd hope the police were listening to this".

17Thereafter, there are text message exchanges between you Ms Wyka and Erkan Ibrahim concerning return of some property.

18Ms Wyka you attended at Errol Ibrahim's home sometime between 20 and
23 June, asking for Mr Ibrahim and you were told that he was not home.  On
21 June 2018, you sent a threatening and abusive text message to him, setting out your position as detailed in the Crown opening. 

19On the following day, the 22 June 2018, a total of 255 phone calls and messages were exchanged between yourself and Errol Ibrahim.  The contents of those communications is not fully known.

20On 23 June 2018, Mr Errol Ibrahim and his friend, Mr Cook, were both visiting Mr Sozer at his home at 68 Harmon Avenue, St Albans, which is a residential area. Mr Sozer lives at that address with his mother.  Fortunately, his mother was in hospital on the day of the offending.

21Ms Wyka, you sent an SMS text message to Mr Errol Ibrahim at 9.13 pm.  It was of a very threatening and abusive nature and that too is detailed in the opening.  You followed up with further messages addressed to him that were consistently of a very threatening nature. 

22Between 10.12 pm and 12.38 am, on Saturday 23 June 2018, a total of eight phone calls were attempted to be made and messages were exchanged between  Ms Wyka and Mr Sozer, the contents of which communications are not fully known.

23Ms Wyka, you were together with Mr Gardiner, at that time, at your auntie's address at 89 Trentham Spring Hill Road, Spring Hill.

24Between midnight and 1 am, you both left that address in Mr Gardiner's white 2008 Nissan Patrol and travelled to 68 Harmon Avenue, St Albans, understanding that Errol Ibrahim would be at that address.

25Prior to departure, Mr Gardiner, you loaded two firearms into your vehicle. 

26Thereafter, a series of text messages passed between Mr Cook and you
Ms Wyka about Errol Ibrahim cutting his wrists with a razor and Mr Cook pleaded with you to sort out the situation.

27CCTV footage from 68 Harmon Avenue, St Albans, shows Mr Gardiner's white Nissan Patrol travelling past that address and parking around the corner in Milton Avenue at 1.33 am.

28At 1.42 am, Manpreet Singh attended the house to deliver a pizza that had been ordered earlier.  He approached the front door, was met by Mr Sozer.

29Both Mr Cook and Mr Error Ibrahim remained in the lounge room.  Mr Ibrahim then joined Mr Sozer at the front door, as he did so, Ms Wyka you and Mr Gardiner ran towards the front door and onto the porch of the house.  Mr Gardiner, you were armed with an Adler A110 12 gauge, single barrel lever action five-shot shotgun and Ms Wyka, you were armed with a Akkar Churchill 12 gauge under and over shotgun.  Earlier Mr Gardiner had loaded both firearms with seven rounds.

30Mr Gardiner, you told police in your formal record of interview conducted after your arrest, that you had removed both shotguns from the rear of the utility and loaded them, giving the under and over shotgun to Ms Wyka, ensuring the safety was on and then you both attended the address to "teach Ibrahim a lesson". 

31I have viewed the CCTV footage of the incident that showed both of you discharging a number of rounds through the front door of those premises. 
Ms Wyka, you took aim at the front door where the three men were standing as you approached and Mr Gardiner you followed her, also raising your firearm in the direction of where the men were standing.

32Mr Ibrahim pulled Mr Sozer inside and slammed the door shut.  Mr Singh realised he had nowhere to go and just stood directly at the front door.  You both then struggled to force the door open and the seven rounds were discharged through the door.  Some of those shots occurred with Mr Singh standing directly between you both.  Those facts constitute the circumstances for Charge 1, home invasion and Charge 2, reckless conduct endangering life.

33No victim impact statements have been filed. I have had regard to what Mr Singh said in his statement. He said that he thought this was his final moment of his life.  Understandably, as a consequence of the conduct he observed, he would have been terrified.  Your actions were recklessness of the highest order and it is fortunate that he and the others who were present, were not injured or seriously harmed by your actions.

34Mr Ibrahim turned and ran down the hallway of the house before jumping out a glass window and then down and out of the property towards Green Gully where he was later located by police.

35Mr Sozer ran into the bathroom and crouched into a ball and remained there until the bullets stopped.  Mr Cook, having heard the shots and commotion lay on the floor before moving to the bathroom with Mr Sozer, where they both remained for about half an hour until police arrived.

36Immediately after discharging the seven rounds, you were both seen collecting the bullet cases before running back towards Mr Gardiner's vehicle.  Before doing so, Mr Gardiner, you used the butt of your shotgun to smash the front passenger window of Mr Sozer’s vehicle parked in the driveway.  That is not the subject of any charge and you are not going to be sentenced in respect to that action.  It is merely for context.

37You both returned to the Spring Hill address, where you remained for a couple of hours before leaving and driving to St Kilda where Mr Gardiner was employed.

38At 3.28 am, Ms Wyka, you sent a text message to Mr Cook, effectively requesting that you be left alone and that you did not love Mr Ibrahim anymore.  The contents of that message were expressed in much more colourful language which I am not proposing to repeat.

39Mr Ibrahim was located by police and taken to the Royal Melbourne Hospital and treated for the injuries he suffered, after jumping through the window, over fences and running through to Green Gully Reserve.

40Mr Gardiner, you were arrested on 12 July 2018 and police then executed search warrants in respect to your vehicle.  You were interviewed and in the course of the interview, you made full admissions in relation to the home invasion.

41You told police that Ms Wyka had informed you earlier in the night about an earlier incident that she had experienced with Errol Ibrahim.  You attended to some cuts on her hands which she told you were from the same earlier incident.  This, together with the text messages that were being exchanged between
Ms Wyka and Mr Ibrahim had made you very angry about his treatment of her and that is why you participated in the offending.

42Police obtained a search warrant for a property in Sunbury where your ex-partner lived, together with your daughter and her parents.  The police located the Adler A110 12 gauge single barrel lever action five-shot shotgun and other items.  Police also executed a search warrant at Ms Wyka's house in Spring Hill and there they located the Akkar Churchill 12 gauge under and over shotgun and other items.

43Ms Wyka you were arrested and formally interviewed. During the course of your interview, you made a partial no comment record of interview.  You denied involvement in the home invasion and being with Mr Gardiner on the night of the 22nd and morning of 23 June 2018.  You stated that you were at your auntie's farm in Trentham and that you never fired a firearm. 

44You made full admissions to cultivating the cannabis located at the property in Spring Hill and told police it was for personal use only.

45Both of you were subsequently charged and have been remanded in custody since your arrest.

46It is accepted by the prosecution that the pleas of guilty were entered at the earliest stage, a committal case conference and therefore you are both entitled to a full discount on sentence.

47The offending insofar as the home invasion and conduct endangering life charges are concerned, are both objectively very serious and serious examples of these two very serious offences.  You entered a private residential property together, at night, with loaded weapons that you discharged firing seven rounds each through the front door, in the presence of an innocent bystander, Mr Singh.

48You knew that the other men were nearby and your actions constituted a high degree of recklessness.  Your actions must be condemned.

49Mr Gardiner, I consider that your moral culpability is high.  Such actions on your behalf are inexplicable having regard to your previous good character.  Whilst the situation that had been unravelling between Ms Wyka and Mr Errol Ibrahim provides a context to the offending, it in in no way justifies your vigilante actions on this night.

50Ms Wyka, I have had regard to the unchallenged evidence given by your long term friend Ms Diana Zecevic.  She has known you for some seventeen years and describes you as being one of her closest friends.  She was able to give evidence about the relationship between yourself and Errol Ibrahim, over the past six years.  She has made observations of the relationship and has observed injuries on you on multiple occasions.  She confirmed that you have complained to her about his behaviour and that she has provided refuge to you multiple times, but she has not been able to protect you from Errol Ibrahim.  He would come to her premises, knock on the door and harass you. 

51She has observed bruising to your body, neck and scuffmarks on your face.  She said that you were absolutely terrified of Error Ibrahim and that you tried multiple times to break off from the relationship.

52She confirmed between September 2017 and June 2018, you had moved to different locations in the St Albans, Mickleham, Sunbury and Melton area, in an unsuccessful endeavour to try and hide from him.

53I accept that your relationship with Errol Ibrahim has been dysfunctional and one characterised by violence and abuse.  Mr Ibrahim has demonstrated in the past many controlling behaviours, as well as obsessive traits that, disturbingly, has continued to be reflected in the content of the letters that he has continued to write to both you and Mr Gardiner, since he has been in custody.

54Tragically, you failed to alert police to Mr Errol Ibrahim's behaviour towards you over the years.  Therefore, no steps were put in place to stop his abusive behaviour and to protect you from his further abuse.  Whilst providing a context to your behaviour, it in no way excuses you for your behaviour on this night.  There is no place in the law for vigilante behaviour of this nature and I consider that your moral culpability is also high.

55In sentencing you both, punishment, denunciation and general and specific deterrence are the key sentencing objectives.

56In formulating the appropriate sentence, I have had regard to the mitigating factors and personal circumstances that have been highlighted on each of your behalf.

57I will now turn to Mr Gardiner's personal circumstances. I make the comment that your behaviour that you exhibited on this night is in stark contrast to your previous history.

58You are a person who is otherwise of good character.  You were born in
New Zealand and your elderly parents remain living there.  They have travelled to Victoria to support you and were present at the plea hearing.  You are their only child.  Each of your parents have been previously married and there are seven step-siblings, all of whom are older than you, who remain supportive of you.

59You have had little by way of formal education.  You completed primary school and did not complete Year 11, at a high school in Garfield, a small community west of Christchurch on the south island.  When you turned 16, your father found you a job and you moved out of home.  You worked odd jobs after leaving school and you later enrolled in a year electronic engineering course, in the New Zealand equivalent of TAFE.  You were then successful in working as a fire alarm mechanic, initially in New Zealand and then in Australia.

60When you were in your early twenties in about 2008, you came to Australia to live.  You set up initially in Brisbane, but ultimately settled in Melbourne.  You have an excellent work history and you have been in continuous employment in your chosen field, working either as a fire alarm mechanic, or otherwise engaged in electrical engineering maintenance work in various locations, including on occasion, working on a fly in, fly out basis in Western Australia.

61Up until your arrest, you were working fulltime with Maximum Fire.  Max Brydy, the managing director of the company provided a written reference dated
31 January 2019, in which he expressed his surprise concerning your conduct on this occasion.  He states that you are considered to be a very valuable worker, who is well respected amongst colleagues. He personally considers that you are a person who demonstrates a strong work ethic. He has remained in regular contact with you since your arrest and considers you to be his friend.  He visits you in prison and has received numerous calls from you and remains supportive of you.  He states that you have shown remorse. Over the time leading up to the offending, you had spoken to him about the breakdown in your relationship with your long term partner Colleen, the mother of your daughter.  He was trying to help you through this experience.  He said that there was a real change within you and that was taking a massive toll upon you. 

62Further references were provided by friends and family members. In summary, they all remain supportive of you and are truly disappointed by your actions.  They confirm that you are remorseful and they consider this to be a one off event that was completely out of character.  You had never shown any violent traits in the past and you have always been considered to be an extremely hardworking, trustworthy, generous, reliable, supportive friend.

63In 2010, you moved with your partner to Melbourne and you have a daughter who is now six.  The relationship has had its difficulties and those difficulties were exacerbated when you were absent, whilst working in Western Australia, on a fly in, fly out basis over the period 2013 to 2015.  This offending has further strained your relationship. 

64You met Ms Wyka when she stayed with you and your former partner at various times to escape from domestic violence which was occurring in her relationship with Mr Ibrahim.  You moved out of the family home in May 2018 and effectively were living with friends and staying with Ms Wyka on occasion, in the lead up to the offending. 

65By reason of your New Zealand citizenship, you hold a special category visa, you do not have permanent residency or citizenship. By virtue of convictions and sentence for criminal offences in the event that a term of imprisonment is greater than twelve months, your visa will be cancelled and there is a likelihood of deportation.

66Given your strong ties to Australia, in particular, your young daughter who is an Australian citizen, it follows that during any period of incarceration, there will be uncertainty as to your migration status and your ability to remain lawfully in Australia.

67I have taken into account that that is likely to weigh heavily upon you during any term of imprisonment and secondly, the deportation, should it occur, would constitute an additional punishment because it would destroy the opportunity to settle permanently in Australia.[1]

[1] Allouch v The Queen [2018] VSCA 244

68I have had regard to all the matters put on your behalf by Mr Saunders.  I accept the plea was entered at the earliest stage and it is one of real utility.  I consider that there is evidence of genuine remorse that is reflected both in the plea and additionally, through your full cooperation with police, the making of admissions in relation to the offending and also your expressions of remorse to friends, relatives and your employer.

69By reason of your plea, you have spared the State the cost and inconvenience of a trial and also the inconvenience and further trauma that would have been occasioned to the witnesses.  You have therefore demonstrated a willingness to facilitate justice and your sentence will be discounted accordingly.  I do accept that you now take full responsibility for the conduct on that night and its consequences and that you understand that what you did was wrong.

70By reason of your arrest and detention on remand, you have had cause to reflect on your behaviour. This is the first time you have experienced imprisonment and it is proving to be a salutary lesson for you.  You have been productive in custody and numerous certificates of completion were provided to the court, concerning the different programs that you have been able to complete.

71You are upset by reason of your incarceration and not being able to see your daughter.  You do have significant ongoing support from family, friends and your employer.  Having regard to all the factors that I have highlighted, I do consider that you have genuine prospects of rehabilitation that are excellent and that the likelihood of reoffending is negligible.

72Mr Saunders acknowledged that the offending for which you stand to be sentenced is serious and that as such the sentence to be imposed, has to reflect general deterrence, just punishment, denunciation.  He submitted that principles of parsimony and proportionality must be given some weight in the sentence. He acknowledged that a sentence of imprisonment to be immediately served was appropriate and submitted that a longer than usual parole period was justified.

73I turn now to Ms Lisa Wyka's personal history.  You are the only child born to parents who separated when you were three years of age.

74I have had regard to the contents of Dr Barth, consultant psychologist report dated 4 February 2019, that sets out in considerable detail your background history.

75You have two younger half-brothers, you were predominantly raised in the Kealba area, in the north western suburbs of Melbourne.  You have a complex family background, characterised by pervasive instability.  You initially lived with your mother upon separation and had regular contact with your father.  Your mother was a heavy drug user addicted to heroin.  Eventually the Department of Human Services intervened and you were placed with an uncle, as your father was serving time in gaol at that time.

76You were aged seven when he was released and you were placed back into his care upon his release.  You enjoyed living with him and have maintained a close relationship.  Your mother also served a period of time in gaol and later died of a heroin overdose when you were aged 15.  Tragically, you found your mother's body and experienced an intensive emotional reaction to her death.

77It was around that time that you left home and started using drugs heavily.  You lived a very transient lifestyle for a period of about two years before your father assisted you, in obtaining stable accommodation.  You have contact with your two younger half-brothers and father.

78One brother provided a letter to the court.  Aaron Wyka is a director of Domain Builders Proprietary Limited, a building and construction company and he states that there is a position available in his company, upon your eventual release. He confirms that you will be trained in all aspects of administration.

79You left school at the beginning of Year 11 and have not completed any vocational training or education.  You have in the past been successful in obtaining work as a receptionist/stock controller and you have also worked in the freight industry in an administrative role.  Over the years your drug use significantly impacted upon your ability to be effectively employed and you have not worked since 2013.

80You are currently working as a cleaner and food billet in your unit at the prison and have expressed a strong desire to return to work upon your release.

81You have had a history of abusive relationships over the years.  Insofar as
Mr Errol Ibrahim was concerned, you have known him since you were 15 and your relationship commenced in 2013.  The relationship was characterised by volatility, violence and abuse and there are allegations of sexual abuse.

82You told Dr Barth that his behaviour became more erratic and increasingly violent, particularly in the context of his heavy abuse of the drug ice.  You also told Dr Barth that you abused ice heavily during the period and that your behaviour became more reckless and impulsive.  You endeavoured to leave the relationship unsuccessfully on several occasions, because Errol Ibrahim would track you down and talk you around to returning.  He made repeated threats to harm you and your family and friends if you disclosed the extent of his behaviour and you were frightened to report matters to police. 

83The toxic nature of the relationship between yourself and Errol Ibrahim was underscored by the evidence from your friend, Ms Diana Zecevic.  You are currently in a relationship with Mr Gardiner and consider that to be a positive one.  You have expressed a desire to continue that relationship. 

84You have had a lengthy history of substance use, including alcohol and illicit drugs commencing from an early age.  You have used cannabis since you were 15 and your use has remained compulsive and addictive, until your arrest on these matters, according to Dr Barth's report.  You have been a long term user of methylamphetamine, also known as ice and you were using heavily when in the relationship with Mr Ibrahim.  You were using approximately two to three times a week until the time of your remand.

85You have not used any illicit drugs since being placed in custody.  That is consistent with the many drug screens results that were provided.

86In addition, you have taken steps to address your drug addiction through participating in the Intensive Residential Treatment  Program conducted by Caraniche Pty Ltd, at Dame Phyllis Frost.

87You have also undertaken some family violence information sessions and have completed some course work relating to the construction industry and other vocational courses whilst in custody.  You are committed and determined to remain abstinent from drug use.

88You have expressed remorse and shame for your behaviour to Dr Barth. I have had regard to the contents of his report.  He concludes that you have had an unstable and dysfunctional childhood which has had a pervasive effect on your personality and behavioural adjustment.  He considers that the symptoms you exhibited are sufficiently severe to warrant the diagnosis of adjustment disorder, with mixed disturbance of emotion and conduct and that you are at risk of developing more intensive symptoms during your period of custody.

89He considers that your personality adjustment is sufficiently severe to warrant the diagnosis of borderline personality disorder with antisocial features.  He says that you also have cannabis use disorder which is severe and stimulant use disorder which is moderate and both of those conditions are in early remission, in a controlled environment.  He has recommended ongoing treatment in respect to mental health, as well as drug relapse prevention.

90On a positive note, he says that your sound intelligence and positive support from your father means that there may well be an unprecedent opportunity for you to make constructive change to your life.  He recommends intensive treatment to support you, otherwise his prognosis is that you would face difficulties.  I accept his recommendations and will make available his report to the correctional authorities to assist them with your future management. 

91I have accepted that the cannabis that was found in your possession was for personal use only and you will be sentenced accordingly.

92In sentencing you, I have had regard to the matters put on your behalf in mitigation by Mr Galbally.  You too entered an early plea, at the earliest opportunity, a committal case conference.

93You now accept responsibility for the offending.  You are remorseful to a degree.  You too have facilitated justice.  Your plea has real utility.  You have spared the State the unnecessary cost and inconvenience of a trial and also spared the witnesses from coming to court to give their evidence on a trial.  Your sentence will be discounted accordingly.

94Whilst you did not express immediate remorse or accept responsibility for your actions when you were interviewed, unlike your co-accused Mr Gardiner, I accept with the benefit of reflection, you now show some remorse for your behaviour.

95You too are a person who comes before the court with no criminal history and you are considered to be a person who is otherwise of good character.  It is your first time in custody and I accept that the experience has been a difficult one for you as well. 

96You now indicate a degree of insight and acceptance of responsibility through the many programs you have completed. You have remained drug free in custody.

97On your behalf, it was conceded an immediate term of imprisonment was justified and that the offending was aggravated by the use of firearms, in the presence of innocent bystanders.

98In formulating the appropriate sentence, I have accepted Dr Barth's expressed opinion that you are at risk of developing more intense symptoms of your adjustment disorder during your time in custody, and also that you are at risk of developing a more serious mood disturbance whilst in custody. I consider limbs 5 and 6 of the Verdins principles have been enlivened and I have taken that into account.

99Overall, having regard to your post offence conduct and the fact that you have utilised your time well in prison, and that you have remained drug free, together with the fact that there is an opportunity for you to work upon your eventual release, I consider that you have reasonable prospects of rehabilitation.  The likelihood of you reoffending is low.  You too have strong support from family and friends.  You are regularly visited in prison by Ms Zecevic. 

100In written submissions, it was put on your behalf that an immediate term of imprisonment, followed by a Community Corrections Order was appropriate, having regard to the combination of features that have been highlighted on your behalf.

101However, as I indicated at the plea hearing, I consider that the nature of this offending is such that a term of imprisonment to be immediately served with a non-parole period to be fixed is appropriate punishment and the only sentencing disposition available.

102Ultimately, weighing all the factors relevant to each of you that I have highlighted, I have concluded that you should receive the same sentences in respect to the charges of home invasion and reckless conduct endangering life, notwithstanding that it was Ms Wyka's personal circumstances that formed the instigation for the events and it was Mr Gardiner who provided the guns, you essentially performed the same role in the offending and therefore you will be treated accordingly.

103I understand that there is a difference in terms of Ms Wyka's condition that I have highlighted, having regard to what Dr Barth says, but I have had regard to the fact that Mr Gardiner was immediately prepared to admit his involvement in this matter and was fully cooperative with the authorities at the time of his arrest, so therefore I consider that the same sentence ought be applied.

104Both of you have the benefit of prior good character.  You are both mature adults who come before the court with no prior or subsequent criminal offending.  Overall, I am satisfied that there is little likelihood of both of you reoffending, having regard to your personal circumstances currently. 

105The offence of home invasion is relatively new and accordingly, there is no clear guidance on sentencing practices.  Ms Bate, the prosecutor, was not able to provide any comparable cases.  Charges 1 and 2 involve very serious examples of very serious offences and I have already highlighted the high degree of recklessness involved in respect to the charges before the court.

106The motivation for the offending stem from an irrational desire on the part of
Ms Wyka to send a clear message to Mr Errol Ibrahim that she wanted nothing further to do with him.  However, through your actions, through your vigilante actions, discharging the firearms in the manner described, that demonstrated a high level of recklessness and exposed other innocent people to real risk of serious harm or death.

107Your behaviour warrants stern punishment and on behalf of the community, I must condemn your behaviour.  General and specific deterrence do play a role, albeit I consider specific deterrence can be moderated to a degree, having regard to your present circumstances.

108I will now announce the formal court orders.  Could you please stand Ms Wyka and Mr Gardiner.

109In respect to Charge 1, the home invasion, you will be convicted and sentenced to five years imprisonment.  In respect to Charge 2, conduct placing another in danger of death, you will convicted and sentenced to three years imprisonment.  In respect to Charge 3, Lisa Wyka for the cultivate narcotic plant, Cannabis L, you will be convicted and discharged and in relation to Charge 4, Mr Gardiner, handle stolen goods, convicted and sentenced to fourteen days imprisonment.

110I make the following order for cumulation.  I direct that two years of the sentence imposed on Charge 2 be cumulative on Charge 1.  That makes a total effective sentence of seven years, in respect of both offenders and I fix a non-parole period for five years.

111I make the following declaration pursuant to s.6AAA in relation to both Ms Wyka and Mr Gardiner, but for your pleas of guilty, I would have imposed a term of imprisonment of nine years, to serve seven years.

112I make the disposal orders sought and the forfeiture order sought. I note that Mr Gardiner's vehicle is not included in the forfeiture order at this stage.  Is that correct?

113MR SAUNDERS:  No Your Honour there is a dispute as to that.

114HER HONOUR:  Yes.

115MR SAUNDERS:  We'll endeavour to resolve it, but if we can't, then it will have to be (indistinct words).

116HER HONOUR:  No formal order to be made today?

117MR SAUNDERS:  No formal order at this time.

118HER HONOUR:  Very well.  I will just make the disposal order sought and I note that the Crown has indicated its desire to make a forfeiture order subject to further discussions.  Very well.  The pre-sentence detention I understand is 231 days?

119MR SAUNDERS:  Yes.

120MR GALBALLY:  That's correct, Your Honour.

121HER HONOUR:  Yes, all right, I make the following declaration for pre-sentence detention.  I declare that it is 231 days and direct that that be entered into the records of the court, in respect to both Dean Gardiner and Lisa Wyka. That concludes my sentencing remarks.

122MR GALBALLY:  Your Honour, the victim Errol Ibrahim's father was present in court during his plea and is here again today.  I don't know what his motive is.  I'm not asking you to do anything about that, but I do want to get it on record in the event that there's any curial proceedings by my client against his son in the future.

123HER HONOUR:  I don't know what the purpose is of your comment frankly,
Mr Galbally.  Are you saying that there is a security issue or ‑ ‑ ‑

124MR GALBALLY:  No, no, not at all, not at all.

125HER HONOUR:  No?

126MR GALBALLY:  Not at the moment, I'm not raising that.

127HER HONOUR:  No.

128MR GALBALLY:  ‑ ‑ ‑ but in the event that an intervention order is applied for by Ms Wyka against Errol Ibrahim, it may be relevant to the magistrate's consideration that ‑ ‑ ‑

129HER HONOUR:  I am not going to say anything other than ‑ ‑ ‑

130MR GALBALLY:  ‑ ‑ ‑ he's attended ‑ ‑ ‑

131HER HONOUR:  ‑ ‑ ‑ he was directly affected by the offending and there is a legitimate purpose for him being here and that is all I am prepared to say.

132MR GALBALLY:  Yes that's all of it.

133HER HONOUR:  Yes.

134MR GALBALLY:  Thank you, Your Honour.

135HER HONOUR:  The matter that you raise is the subject of separate consideration by a differently constituted judicial ‑ ‑ ‑

136MR GALBALLY:  I appreciate that.

137HER HONOUR:  We can adjourn please.

‑ ‑ ‑