Director of Public Prosecutions v Hains

[2017] VCC 1631

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-17-00687

DIRECTOR OF PUBLIC PROSECUTIONS

v

MAX HAINS

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JUDGE:	HIS HONOUR JUDGE MCINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	31 October 2017
DATE OF SENTENCE:	9 November 2017
CASE MAY BE CITED AS:	DPP v Hains
MEDIUM NEUTRAL CITATION:	[2017] VCC 1631

REASONS FOR SENTENCE
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Catchwords: CRIMINAL LAW – Sentence – intentionally cause injury – attempted armed robbery – criminal damage – trafficking in a drug of dependence – summary offences.
Legislation Cited: Sentencing Act 1991 (Vic), Crimes Act 1958 (Vic), Criminal Procedure Act 2009 (Vic).
Sentence: Convicted and sentenced to two combined sentences of 23 days imprisonment and community corrections orders for two years, to run concurrently

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C. Cameron	Office of Public Prosecutions
For the Accused	Mr M. Dempsey	Lethbridges Barristers and Solicitors

HIS HONOUR:

1In this matter, on the two prior hearings, that is, 18 August 2017 and 31 October 2017, Mr Roper appeared on behalf of the prosecution, today Ms Cameron appears and Mr Dempsey on behalf of Mr Hains. 

2Mr Hains was born 5 May 1992.  He is now 25, and was 24 at the time of these offences.  The plea to indictment H10106628 was entered on 18 August 2017.  Mr Hains lives with his parents at 34 Tudor Drive, Mooroolbark. 

3The charges covered under the indictment are: Charge 1 pursuant to s.18 of the Crimes Act, intentionally cause injury.  That was an offence committed on 22 November 2016, when at a retail premises, Mr White, who was working there, was suddenly punched by Mr Hains initially, and then punched further, in circumstances that indicate some mental issue.  There was no provocation by Mr White.  There had been a background of treatment, to which I will refer, of paranoia insofar as Mr Hains is concerned, and this seems totally consistent with such a crime.

4The innocent victim who was punched remarked "What are you hitting me for?", and was answered with comments along the lines "You know who I am". 

5The next offences occurred on 10 January 2017, which make up the second and third charges.  Charge 2 concerned an attempted armed robbery at the 7/11 store at Mooroolbark.  I will come to the precise circumstances later.  That is an offence pursuant to s.75A and s.321M of the Crimes Act, the maximum penalty for which is 20 years imprisonment. 

6At the same time, in a confrontation with the worker at the 7/11, an assault was effected by use of a box cutter when the store worker had his finger cut. That makes up Charge 5 of the summary offences which are before the Court by way of s.145 of the Criminal Procedure Act.

7The third charge on the indictment is a charge of criminal damage. Having been apprehended outside his parents' place early the next morning - that is, 11 January 2017, he caused criminal damage, firstly to the police car door, and then when placed in custody in the police station, he head-butted the wall and caused two holes in the wall.  All of those circumstances make up the charge of criminal damage under s.197, for which the maximum period of imprisonment which can be imposed is a period of ten years.

8The final charge came about from the search of his car and of his mobile phone. It is an offence of trafficking cannabis pursuant to s.71AC of the Drugs, Poisons and Controlled Substances Act, the maximum penalty prescribed for such an offence is 15 years.

9There were then four summary charges, which the Court has been asked to take into account and sentence upon, pursuant to s.145 of the Criminal Procedure Act.

10The first is Charge 5 that I have referred to, which occurred at the 7/11 store of assault with a weapon.  The second is Charge 7 of assaulting an emergency worker.  Charge 10 is committing an offence whilst on bail, and Charge 13 is dealing with the proceeds of crime, and that relates to the $865 that was found in his possession on 11 January 2017.

11Mr Hains has, by way of background, minimal priors, although it should be said that those priors do show three convictions in the Magistrates' Court for theft, and one in the Children's Court, albeit that at no stage was he ever convicted, and he was sentenced by way of adjourned bonds. The point made by
Mr Dempsey, was certainly by way of background, there have been no offences of violence.

12Mr Hains pleaded guilty at the first opportunity at the committal conference on 6 April 2017.  He, subsequent to the offending, was arrested and spent 23 days in gaol, and was thereafter bailed on 21 December 2016, and has been subject to the CISP program, the full details of which are set out in the four reports filed with the Court, Exhibit 4.

13The plea conducted on 18 August, or the part-plea I suppose is the way we should put it, spoke of Mr Hains now being employed, having been working as a furniture removalist.  That employment continues.  The outline of submissions of the prosecution, Exhibit A, was accepted as being the facts upon which I am to sentence, as put by Mr Dempsey.  I think I might have said he is now 24 - I think he is 25, is he not?

14MR DEMPSEY:  That is right.

15HIS HONOUR:  He was now 25, he is still dependent on his parents.  As seems to be the view of all medical parties, he is a person who requires structure and assistance.  It has been put to me that he now understands the seriousness of the crimes involved.  It was submitted by Mr Dempsey that there are indeed no relevant priors, that he had responded well to the CISP program, that he still has the support of his parents, who I have noticed in Court on each occasion.  He found the fact of being in gaol particularly onerous.  There were difficulties with his placement, with his treatment, and apparently while in gaol he lost weight, to the extent of some 14 kilograms.

16At the first day of the plea, as I have detailed, a number of documents were tendered.  The first I want to come to is the letter from Dr Alan Rose, which is Exhibit 3.  This letter of course is a background to the crime that I have just described, happening later in 2016.  Dr Rose reports as of 26/05/16 of seeing Mr Hains.  This was on reference to the Junction Clinic, but the report tendered is dated 26/05/16.  Dr Rose says this:

"I saw him today with presentation of chronic paranoia, recently far worse, leading to outbreaks of violence."

17I should say this.  A lot of his issues apparently relates to an assault committed upon him, and his parents at their home by a group of individuals.  He was reported to be suffering severe anxiety and social anxiety.  He was further seen on 26 May 2016.  Again, a history of severe anxiety for many years was taken, the fact that he suffers from paranoia from a feeling of people looking at him in a strange way, his inappropriate response thereto, and the fact that over the six months leading to this reference, these issues were becoming particularly evident.

18It was noted that he finds it difficult to comprehend nuances and humour.  The assault that I referred to took place when he was 15, and that has had a continuing impact upon him.  He also has additional dyslexic issues. 

19In addition to Exhibit 3, was tendered the report of Dr Dowse, a psychologist, that report was Exhibit 6.  That report is dated 15 August 2017.  Apparently
Mr Hains was seen at the behest of his then Barristers and Solicitors.  It was noted in regard to the assault, and indeed the attempted armed robbery that I have referred to that there had been an ingestion of a large quantity of Valium, which was prescribed at the time.  Mr Hains reported to the psychologist the impact of such drug taking, and it was the opinion of Mr Dowse that Mr Hains had developed insight over the eight sessions, and strategies to deal with issues of angry thoughts and feelings, and issues of empathy.

20Further tendered was a report of a psychiatrist, Ms Borg.  This was a neuropsychological report dated 24/03/17, as I said, by Dr Linda Borg, who is director and senior clinical neuropsychologist at the Community Health Partners in Essendon.

21Essentially, a summation of the matters detailed is contained firstly on p.4, where the history is given under the issue of psychiatric, and then on p.6, where a summary and recommendation was indicated.  Mr Hains being then a 24-year-old male with a history of recent offending behaviour in the context of acute prescription drug abuse. This is evident on a background of delayed speech acquisition requiring speech therapy, learning difficulties necessitating specialist tutoring, and classes and subsequent and limited education and vocational success.

22Insofar as opinion, at p.6 Dr Borg said this:

"Firstly, Mr Hains produces a profile that is consistent with specific language impairment.” 

“As I have already mentioned, the issues of dyslexia on a background of low average intellectual abilities.” …he demonstrates difficulty in verbal communication and comprehension, affecting his capacity to process and utilise information when presented with auditory verbal domain.”

"Secondly, in addition to the above, he reveals cognitive deficits in aspects of higher order attention and executive functioning on a background of low average intelligence.  The likely aetiology of these additional difficulties is the presence of a psychiatric disorder, namely and possibly ongoing post-traumatic symptoms. 

“Again, this relates to the assault committed upon him.”  “Importantly,
Mr Hains responds in a manner to suggest awareness about his current circumstances, although his linearity in thinking indicates he will have difficulty independently prompting and supporting change.  Therefore, he is likely to require the support and assistance of others to assist with the activities of daily living".

23This is obviously a very important opinion, and the last quoted sentence is very important aspect of that opinion, that is, the challenges that are presented in this case.  And I do not need to emphasise that to his parents.  To the extent that I can, I will try and emphasise such to Mr Hains, but it is one of the challenging aspects of this case.

24As a result of those matters, Mr Dempsey put to the Court that six months down the track, Mr Hains has actually, as set out in the report of Dr Dowse, made significant change, given his issues.  He is employed, he has become a father, he is now on Seroquel to manage his symptomology, and that is being managed by his mother.  And despite the seriousness of these matters, Mr Dempsey submitted that it was his intent to seek a community correction order.

25I should mention that in addition to all those deficits that I have referred to, there is also a large impact from abuse of cannabis. 

26It was as a result of those matters, and given the seriousness of these offences, that the Court was concerned to get a better picture, if that was possible.  And in regard to that, the matter was adjourned to 31 October 2017 so that the Court could seek a Forensicare report.

27As tendered this morning, the Forensicare report was indeed prepared, and that has been marked Exhibit C.  That report is dated 27 October 2017, and was prepared by Dr Remy Glowinski, a consultant psychiatrist with Forensicare.

28In addition was tendered for the assistance of the Court, in light of what I have referred to, the CISP reports, being Exhibit 4.  What is known as an extended presentence assessment outcome report, which was dated
11 October 2017, and that was also tendered to the Court as Exhibit D.

29It is necessary to go to both of those reports.  Firstly, to Exhibit D, the presentence assessment report, again the background of abuse of Valium to the attempted armed robbery that is referred to, the analysis of the offences set out in the court in particular through to p.2 seems to be beyond issue.

30The history, both in regard to his numeracy and literacy problems, his difficulty at school, and the reported bullying in his younger years is also detailed.  The strong relationship with his parents and his younger sister is noted.  The ongoing problem of not only alcohol, but drugs in his teenager years is referred to.

31Mr Hains was clearly, in his teenage years, drinking excessive amounts of alcohol, and indulging in excessive cannabis.  He reported in that interview that he had not used cannabis since his release from custody, and that he is now prescribed Seroquel by the GP to effectively manage his insomnia.  I understand that is also being used on the basis of treating his paranoia.

32It was the view of the community correction officer that there was limited insight into the effects his actions had had on the victims.  There was an expression of inability to control his anger in certain particular circumstances.  It was noted, as I have already referred to, his general low intellectual functioning. 

33By way of conclusion, the following matters were put to the Court. 

34Mr Hains is a 25-year-old male with a criminal history dating back to 2009, none of which involves violence, and none of which has involved him being convicted or sentenced to gaol.  Mr Hains expressed to the officer willingness to comply with the community correction order, and stated he no longer wished to continue his offending behaviour path.  He was assessed as a high-risk of reoffending, given the reassessment tools used.  But, in light of the totality of the information to which I have referred, he was assessed as a suitable candidate for a community-based disposition, with appropriate recommended conditions.

35As I said, the Court was concerned in regard to these issues, and also sought the psychiatric report from Forensicare.  As I remarked on the last occasion, Mr Glowinski seemed somewhat concerned at the fact that he had been referenced in an earlier report. However despite those concerns, Mr Hains wanted to continue with the consultation.

36By way of introduction, it was noted that he was now the father of a three-month old child, that he had been working full-time with Grace Removals while he is on bail.  That he was in a suitable arrangement as to seeing the child, the issues as to his intellect and verbal domains were noted, and a history was noted, in particular the psychiatric issues.

37Insofar as the excessive Valium taken on the night, at paragraph 58 by way of history Mr Hains explained he took the prescription orders from his doctor very literally.  They were that the doctor who prescribed the diazepam said "Take these every time you get scared".  He was also smoking cannabis heavily at the time, and this led up to the particular attempted robbery.

38Mr Hains told the psychiatrist that he had absolutely no memory of the incident on 22 February, and the only reason he knew that it was him was from the police brief.  He had no memory of the incident at 7/11, apart from recalling the tablets that he had had beforehand.  

39Mr Hains described his issues when in custody, and I will not refer to those again.  The psychiatrist referred to much of the information that he had been given that I have already referred to, and then in his opinion and recommendations, which started at paragraph 80, he said this:

"Mr Hains (and his mother) describe learning difficulties and intellectual delay.  The neuropsychological report confirms that Mr Hains has current difficulties in a few cognitive domains."

40Reported was his history of suspensions at school and the effect of bullying, the issues by way of difficulty with anger and impulsive behaviour.  Dr Glowinski was unclear how those traits fit into a longitudinal diagnostic picture, or whether they represent part of a broader personality disorder presentation.

41It was concluded that it was safe to say Mr Hains certainly had a form of cannabis use abuse.  However, in paragraph 88 it was concluded that overall, and acknowledging some uncertainty, "I don’t think Mr Hains has a psychotic illness, or other form of severe mental illness". Dr Glowinski therefore unfortunately, despite what the Court was seeking, makes no particular recommendations to the Court regarding psychiatric treatment.

42Dr Glowinski’s final recommendation was of some assistance to the Court being to recommend that "if the Court is considering a community disposition, it should include a requirement for Mr Hains to undergo drug and alcohol treatment, and possibly urinary screening, including for benzodiazepines."

43The circumstances before the Court following the receipt of that report were such that in the further plea, the references to which I have just referred in
Mr Glowinski's report were mentioned.  The continued steps taken in regard to his job, the reference to his custody problems, and the fact that there has certainly been no criminality since, and the ultimate submission by Mr Dempsey was, as indicated on the first day of the plea, that he would be seeking a community corrections order.

44Insofar as the response to such, the prosecution, I think quite professionally given the totality of the circumstances, and consistent with my experience of
Mr Roper in this Court, conceded that despite the seriousness of the crimes, a community correction order was within range.

45I must say that because of the seriousness of these crimes, it seemed to be that Exhibit A bore re-reading and re-emphasis.  I went back and looked closely at that opening, in particular firstly to Charge 1.  That is, the
20 November 2016 charge.  As I said, the very circumstances are indicative of some form of mental un-wellness.

46I make no criticism of Mr Glowinski in this regard, but the facts, given the reality of Mr Hains' life, despite no psychiatric diagnosis before me, indicate that paranoia was very much to the fore, where suddenly he punches someone in a store who he had never seen before, apparently for no reason by way of provocation. 

47We then come to the second charge, committed on 10 January 2017, which was obviously particularly serious, given the view the Courts take about crimes committed upon innocent persons going about their business late at night in circumstances where stores such as this particular 7/11 store are serving the public.

48Again, as I said in analysing Mr Hains' history, there is of course a history of dishonesty in the sense of involving shoplifting, which is three theft offences at the Magistrates' Court and one at the Children's Court.  However, at no stage did they or any other circumstances involve violence, nor a crime of this dimension.

49The circumstances as shown on the CCTV would indicate, clearly, an attempt to steal cigarettes, however that expanded, when there was a request to open the till and a threat made to cut the throat of the poor worker at the time.  Again, given the seriousness of this offence, it is to be remarked that there was no attempt made at any time to conceal his identity.

50Of concern of course is the analysis by the police, as part of their investigation which of course assists the Court, that there was some degree of planning.  There were some photos taken as shown on his phone at about 11 pm of the store, and there was a Facebook message at 11.14, that is, six minutes before the offence, showing some degree of planning, albeit referring to the fact that he had just taken nine Valium tablets.

51Subsequently, after the offences, again on his iPhone, he noted that he had "fucked up".  A statement which clearly was an understatement in the circumstances.

52Charge 3 came about from his attendance at his mother's place, despite a family violence order being in place.  The criminal damage thereafter to the car and the police station was perhaps consistent with what has happened previously in his life. 

53Charge 4 emanates out of the search of his car.  There were drug trafficking accoutrements found.  There were 31 small bags containing cannabis, each labelled with a Q.  In the car was found two box cutters, one of which had blood on, which is most consistent with the offence in Summary Charge 5, and the $865 cash is consistent with the plea made, as are the analysis made by the police of his phone, and the conversations that took place indicating that the finding of the accoutrements and the money are consistent with the charge.  Of course, Mr Hains indicated that despite such facts, what was involved, essentially, was the obtaining of drugs and the exchange of drugs with people similarly addicted.  The amount was relatively small in total, being 243 grams.

54As I say, it was necessary, given the submission, for me to closely re-analyse and look at the circumstances. 

55Given the totality, I am unsure and cannot decide beyond reasonable doubt what are the precise facts surrounding these crimes.  I cannot disassociate the effect of a paranoid condition, which I find was there.  I am unable to precisely describe the impact on Mr Hains of the paranoid condition as against his long-term abuse of cannabis, and his immediate abuse of Valium on thr night of the attempted armed robbery.

56I am unable to precisely describe on the evidence before me the totality of those impacts upon a person, if I say with respect, who has a low intellectual base.

57I finally concluded, after a considerable amount of thought about these matters, given the lack of his violent priors and the medical opinions, that I am prepared to take up Mr Dempsey's submission, professionally accepted by the Crown as being within the range of an appropriate sentence in this case.

58I might say that I do so not without recognition of the serious nature of these crimes, but in the hope that mercy at this stage, Mr Hains with the issues that he has, may assist in bringing him back on track.  I have to say to his family and to Mr Hains, there will be no further mercy given.  If
Mr Hains came back before this Court with a similar offence, then unfortunately the outcome has to be clear, and all I can say is you must do as best as you can.

59I am not in any way saying or implicating that you have not done the best you can with your son.  But somehow he has to know that his behaviour cannot get to this level again, and the most important thing about that is no drugs at all, I would think.

60There is a recommendation in the community correction officer's report that not only is a drug treatment condition put in, but he undergo testing, insofar as such treatment.

61Clearly, he is a person who will need some form of drug treatment, and that will have to be taken into account, but cannabis, I would have thought, must totally be ruled out in regard to his circumstances.

62There were sought by the prosecution in addition orders as to forfeiture and disposal, and I think I have already signed those.  Insofar as all of these matters are concerned, I intend to impose two combined community corrections orders, each of which will be identical.

63The community correction orders will be orders made pursuant to s.44 of the Sentencing Act. That is, in regard to each of the indictable and summary crimes there will be two combined orders of imprisonment and community correction. The period of imprisonment will be 25 days, I will make a declaration pursuant to s.18 of the Sentencing Act that the period of 25 days already served be deemed to be service of each of the immediate gaol sentences.

64MS CAMERON:   Twenty-three days, Your Honour.

65HIS HONOUR:  Twenty-three days.  Sorry, my beautiful writing - it is why I use a computer - be deemed to be service of this matter, so that there will be no further actual imprisonment to serve, and that therefore from today, a community correction order be imposed for a period of two years.  Mr Dempsey, we did have some discussion on the last occasion.

66MR DEMPSEY:  Yes.

67HIS HONOUR:  It was my view then that a period of three years would be appropriate, however reflecting on all of the matters - and that is really why I emphasise the issue of risk in this matter, both from the community correction officer and from the medical evidence, this is not going to be an easy order to achieve.

68MR DEMPSEY:  No, and ‑ ‑ ‑

69HIS HONOUR:  And it seemed to me if he gets through two years, the community will be much to the benefit.

70MR DEMPSEY:  And there was a - I did not mean to interrupt Your Honour, but there was a pertinent observation in the presentence report that they need at least 18 months with him to ‑ ‑ ‑

71HIS HONOUR:  Exactly, so that is why I put it as two years.  The issue that confronts me in the sense of wanting to make a community correction order appropriately punitive is the issue as to hours of work that I should or should not impose, Mr Dempsey.  And I am conscious of the fact that in the last hearing, you advised me that he has now increased his working hours, and is working a considerable period - I think you told me last time he is working two jobs which take him through from 4 am to 6 pm?

72MR DEMPSEY:  The jobs do not take him from four until six.  He has to get up - he does not drive, so he has to get up and catch the train.

73HIS HONOUR:  Yes.

74MR DEMPSEY:  His dad has cancer, they have moved out of home, he is carrying a large financial burden for the family.  And we well understand that work does not necessarily take priority over punishment, but I think what Your Honour is asking me is if there is a reason to temper the amount of punishment by way of community work.  There is, and that is the reason.

75HIS HONOUR:  Well I thought in the circumstances if I imposed a period of 200 hours to be served over the period of the two years, that would ‑ ‑ ‑

76MR DEMPSEY:  Well-achievable.

77HIS HONOUR:  That would be achievable.

78MR DEMPSEY:  Well-achievable.

79HIS HONOUR:  It does not seem to me that that is over burdensome, but it does add to the punitive nature of this sentence, especially given the seriousness of the offences.

80MR DEMPSEY:  Yes Your Honour.

81HIS HONOUR:  So Madam Associate, we will add that as well.

82ASSOCIATE:  Yes Your Honour.

83HIS HONOUR:  In addition, the recommendations made will all be added, Madam Prosecutor, and Mr Dempsey.  And that is the s.48E supervision order.  It was noted in the report that Mr Hains has been assessed as high risk of reoffending, therefore the supervision condition is recommended.

84MR DEMPSEY:  Yes Your Honour.

85HIS HONOUR:  The s.48D treatment rehabilitation order and assessment and treatment including testing for drug abuse or dependency, s.48(3)(E), mental health assessment and treatment as directed.  Because of his violent reaction to matters, and his low intellectual ability, I agree that there should also be offending behaviour programs, although I am not going to indicate which ones.  I will leave that to his supervisors.

86MR DEMPSEY:  Yes.

87HIS HONOUR:  And I do not intend to impose s.48K, judicial monitoring, but I do intend to impose a work requirement, which was not recommended, just to give him some ongoing commitment in that regard.

88I cannot say that I am, given the totality of these crimes, unconcerned as to the future.  It is clear that there is a risk of further offending.  It seems to me that I should stand down, Mr Dempsey, while you talk to the family and your client, and make sure that he fully understands what is proposed.  The Government imposed this alternative to gaol, given the principle of parsimony, also imposed by Parliament, to be used in particular circumstances.

89Where it is used and abused, that is, persons do not take the opportunity then it is the view of the Government that a person should then serve an appropriate sentence in gaol.  As indicated by everyone, that would be a particularly difficult issue in regard to Mr Hains.  Today I have got to deal with, respectively, breaches of matters, and each of them is going to involve a serious consideration of gaol, and I just want you to point out to your client and his parents that this matter will come back to me, and each of the comments that I have made will be borne in mind then.  One gives fresh consideration given the circumstances on every occasion, however given the seriousness of these crimes, if this opportunity was not taken, then unfortunately the consequences would be grim.

90MR DEMPSEY:  Yes Your Honour.

91HIS HONOUR:  I will stand down while you ‑ ‑ ‑

92MR DEMPSEY:  May we have a copy of the order, and I can check it off as we go?  That might be helpful.

93HIS HONOUR:  We will do as best we can.

94MR DEMPSEY:  A helpful way to frame it, thank you Your Honour.

95HIS HONOUR:  Yes, yes.

96(Short adjournment.)

97HIS HONOUR:  Mr Dempsey, I understand there is some concern about the work order, but there is no reason why both cannot apply, as I have indicated, with the provisions of s.41 applying ‑ ‑ ‑

98MR DEMPSEY:  Section 41 dictates that both orders are considered - or deemed to be concurrent.

99HIS HONOUR:  What I might - just so that Corrections do not get confused, which occasionally happens, which is a difficult Act to comprehend, we will put in both orders that such order is to be concurrent with the other order respectively made today.

100MR DEMPSEY:  It was either that or remove from one, so that they did not double-up.

101HIS HONOUR:  No, no, I do not intend to do that.  We will make it concurrent as the Act prescribes.

102MR DEMPSEY:  If Your Honour pleases.

103HIS HONOUR:  Yes, what is the position in regard to your client?

104MR DEMPSEY:  Prepared to consent, Your Honour.

105HIS HONOUR:  Right.

106MR DEMPSEY:  Understands what he is consenting to, and the consequences upon breach.

107HIS HONOUR:  Yes, Mr Hains, stand up please.  Mr Hains, you will be convicted of all these crimes.  With your consent, I intend to impose two combined community correction orders and periods of gaol.  The period of gaol will be the period you have already served, so that you will start the two-year community correction order with the conditions that are being explained to you today, all right?

108Now, I want to make it clear to you that up to now you have been dealt with pretty leniently by courts, and indeed it might be said you are being dealt mercifully again today.  As I think has been explained to you, the system can only grant so much leniency and so much mercy, despite your mental issues and your environmental problems.

109If you come back here again, having committed any further crimes, then you know what is going to happen.  You will be very lucky not to end up in gaol.  As I understand, you did not enjoy your experience of gaol over those 23 days, and I imagine that will be enough to keep you on track.

110One of the most important things for you staying on track is no cannabis, all right?  None at all.  You are not a person who is able to indulge in cannabis, and indeed, alcohol, sounds like an issue for you too.  Clearly you need ongoing prescription drugs, and you have to understand you cannot take more than prescribed, because look what happened on the night you did.

111You are being given a fairly difficult task to achieve over the next two years.  I hope you can do it, I know your parents will be there to support you, and I just hope that we are successful in keeping you out of gaol, because the next time, unfortunately, you will be in dire risk of going to gaol, all right?

112Mr Dempsey, you have explained that matter as best as you can?

113MR DEMPSEY:  I have, Your Honour.

114HIS HONOUR:  Yes, Ms Cameron, any other matters I need to attend to?

115MS CAMERON:  Just a s.6AAA order, Your Honour.  Because he has been sentenced to imprisonment.

116HIS HONOUR:  Well as best as I can comply with s.6AAA in the circumstances, which requires the Court to pronounce what a sentence would be if one factor was not present, that is, a plea of guilty.  All I can say in the circumstances is that clearly two concurrent combined orders, by way of imprisonment of 23 days plus community correction of two years, would not have been on the table, and an immediate period of imprisonment would have been imposed.  Yes.

117MS CAMERON:  As Your Honour pleases.

118MR DEMPSEY:  As Your Honour pleases.

119HIS HONOUR:  Yes, you can come out, or you can be - come out of the box, Mr Hains.

‑ ‑ ‑