Director of Public Prosecutions v Haire
[2023] VCC 186
•16 February 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case Nos. CR-22-01006
CR-22-00811
CR-22-00269
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RICHARD JAMES HAIRE |
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JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 February 2023 | |
DATE OF SENTENCE: | 16 February 2023 | |
CASE MAY BE CITED AS: | DPP v Haire | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 186 | |
REASONS FOR SENTENCE
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Subject:
Catchwords: Three separate indictments and several summary offences with offending spanning approximately 3 months – first indictment: burglary and theft – second indictment: robbery, obtaining property by deception, aggravated burglary and possession of a drug of dependence – third indictment: attempted armed robbery – five summary offences comprising two charges of committing an indictable offence whilst on bail, being a non-prohibited person in possession of an imitation firearm without an exemption, dealing with property suspected of being the proceeds of crime and stating a false name to police.
Legislation Cited:
Cases Cited:R v Verdins [2007] 16 VR 269; Worboyes v The Queen [2021] VSCA 169, [39]
Sentence: Total effective sentence of 5 years 9 months and 17 days imprisonment, with a non-parole period of 3 years imprisonment.
s6AAA: Total effective sentence of 8 years imprisonment with a non-parole period of 6 years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr M Roper | Solicitor for Public Prosecutions |
| For the Offender | Ms K Ballard | Leanne Warren & Associates |
HER HONOUR:
1Richard James Haire, you have pleaded guilty to a number of offences on three different indictments. You have also consented to five summary offences being uplifted from the Magistrates’ Court to this court and have pleaded guilty to those offences.
2On Indictment No M11964379.1 (“the first indictment”), you have pleaded guilty to one charge of burglary and one charge of theft committed on 30 May 2021. Each of these offences carries a maximum penalty of 10 years imprisonment. On that day you and a co‑offender, Marcus Hopkinson, had been smoking ice and drinking alcohol. Hopkinson had some grievance against the victim, Jamie Boyle, and decided to visit the victim’s home address. He equipped himself with a crowbar, while you took an imitation firearm, a black Gel Blaster. The victim lived in a caravan at the rear of a property and, as you and Hopkinson walked up the driveway towards it, the victim became aware of your presence on CCTV cameras and hid in the garage. Hopkinson knocked on the door of the caravan and, when he received no answer, used the crowbar to break into it. Whilst inside the caravan you stole a black laptop bag which contained a silver laptop, together with a birthday card addressed to the owner, Imogen Williams. Police were alerted and you were arrested soon thereafter and both the laptop and imitation firearm were seized. You made a ”no comment” record of interview. Summary Charge 7, being a non-prohibited person in possession of an imitation firearm, relates to your possession of the imitation firearm. This offence carries a maximum penalty of 240 penalty units or two years imprisonment.
3On Indictment No M11879234.1 (“the second indictment”), you have pleaded guilty to one charge of robbery (which carries a maximum penalty of 1800 penalty units or 15 years imprisonment); one charge of obtaining property by deception (which carries a maximum penalty of 1200 penalty units or 10 years imprisonment); one charge of aggravated burglary (which carries a maximum penalty of 3000 penalty units or 25 years imprisonment); and one charge of possessing a drug of dependence (which carries a maximum penalty of 30 penalty units or one year imprisonment if not connected to trafficking of which I am satisfied). You and one of your co‑accused, Joshua Garside, had met the victim, Paul Triantafylopoulos, through his partner, Adam Benson, a couple of years prior to the offending. At 2:15am on 27 July 2021, Garside attended the victim’s residence ostensibly to retrieve some stolen registration plates which he had left in a Ford Fiesta sedan. This was a vehicle which had been used by the victim’s partner, Adam Benson, but which belonged to Mr Benson’s mother. Later, at 3:03am, Garside told the victim that he was going out to purchase cigarettes. In fact, he let yourself and another man, Mitchell Clarke, into the apartment block and all three of you entered the victim’s apartment, where he was alone.
4Clarke ordered the victim to sit on the couch and to hand over his mobile phone, while you told him he was not to call any person for help. You also told the victim that his partner had an outstanding debt of $10,000 and, if he did not pay, that his partner and their two dogs would all be harmed. You claimed that you knew that his partner hid money in the apartment. The victim stood up from the couch and Clarke pushed him back, while Garside closed the interior blinds. The victim stated that there was no cash in the apartment, and you stated that he would have to hand over “stuff equal to the value of this debt”. You and your two co‑offenders, Garside and Clarke, then stole the following items from the apartment: two TV sets; 15 to 20 bottles of aftershave; five original oil paintings; a PlayStation; an Apple iPad; an X-Box; a gold wedding band; a gold bracelet and cross; multiple Milwaukee power tools and a variety of other items, including a set of keys to the apartment and various tools of trade of the victim’s partner, who was a qualified hairdresser.
5When you and your two co‑offenders were unable to fit all of the stolen property into a vehicle, the victim was ordered to organise and pay for an Uber driver to help transport the balance of the items to an address in Croydon. You organised for a fourth person, Brayden Cannon, to attend to assist in moving the property. Ultimately, at 7:36am, you and your two co‑offenders left the victim’s home driving the previously mentioned Ford Fiesta sedan, after threatening the victim that, if he reported the incident, they would arrange for his partner and their two dogs to come to harm.
6The following day at 4:35pm, you and your co‑offenders, Garside and Clarke, returned to and entered the victim’s apartment using the stolen set of keys. Clarke was carrying a handgun which he pointed towards the victim’s head, again demanding to know where the money was. When Clarke raised his hand as though to “pistol whip” the victim, you grabbed Clarke’s arm to urge him to desist. Clarke then pointed the gun directly at the victim’s face, demanding to know how much money he had in his bank account. The victim showed the three of you that he had $280 in his bank account. You then ordered the victim to contact his partner’s mother, Alison Benson. You got on the phone to her, claiming that her son owed money and that the victim would not be let go until they received it. As a consequence, she transferred $1,000 to the victim’s account. The victim then transferred that $1,000, together with his own $280, to your Bank of Melbourne account. You then told him that the amount had to be $2,500 and that you would return to obtain the additional funds.
7The following day, 29 July 2021, when the victim’s weekly wage of $909 was credited to his account, he transferred a further $340 to your Bank of Melbourne account. Thus, Charge 4 on the second indictment, robbery, refers to the total amount of $1,620 transferred by the victim into your bank account.
8When ultimately interviewed by police, you denied making any threats to the victim, Mr Triantafylopoulos, or stealing any of his property or that a handgun had been produced. You claimed that you had attended his apartment to assist him move his personal possessions as he was vacating that residence. You admitted asking the victim how much money he had in his bank account, but claimed that all money transferred into your account was related to the victim purchasing methylamphetamine from you. This was plainly a lie. When police showed you text messages from yourself to your victim threatening that, if further money wasn’t paid, then the victim would be visited by members of an outlaw motorcycle gang and his partner would be harmed, you claimed that you were helping another person to recover money stolen by the victim and his partner.
9On 31 July 2021, Garside and another man were involved in further offending against the victim in which you were not involved.
10The Ford Fiesta sedan and several items of property stolen from the victim were ultimately located at various addresses where police executed search warrants.
11On the second indictment, you have also pleaded guilty to an offence, of obtaining property by deception, Charge 2. The victim of this offence was Matthew Shaddick, who had his credit card stolen on 22 July 2021. The following day, your co-offender on the first indictment, Cannon, sent a message to you asking, “what was the i.d. name”, to which you responded “Matthew Shaddick”. On 27 July, the stolen credit card was used by one Michael Burt and another unknown offender to purchase a trailer for $12,000. On 12 August 2021, the trailer was parked in the driveway of Cannon’s residence and, the following day, you advertised it for sale on your Gumtree account for $11,000. Your plea to this charge is on the basis that you were acting in concert with the other offenders. When ultimately interviewed by police, you claimed that you had placed this advertisement on behalf of a friend and stated that the trailer was not stolen, but declined to give police any further details.
12The final charge on the second indictment, Charge 5, is that of possessing a drug of dependence, methylamphetamine. This relates to a small quantity of the drug inside a deal bag, which police found in a backpack in the back of a car which you were driving when apprehended by police on 3 September 2021.
13At the time of committing the robbery against Mr Triantafylopoulos, you were on bail for charges of theft pending a hearing at the Frankston Magistrates’ Court. This is an aggravating feature of your offending and is the subject of Summary Charge 32, committing an indictable offence whilst on bail. This offence carries a maximum penalty of 30 penalty units or 3 months imprisonment.
14On Indictment No M11879267.1 (“the third indictment”), you have pleaded guilty to one charge of attempted armed robbery, which carries a maximum penalty of 20 years imprisonment. This offence had actually taken place on 15 July 2021, that is, between the dates of your offending on the first indictment and the second indictment.
15Earlier in the month of July 2021, you had met the victim, Brittany Apostolidis, through a dating and social network app. You also exchanged mobile phone numbers and sent text messages to each other. The victim stated that you mentioned that you dealt in “marijuana, ice and pills” and had sent her images of a large amount of cash and what appeared to be a half-ball of methylamphetamine on a set of scales. You told her that you wanted to try “ice” in the area where she lived and, as she was experiencing financial pressure, she lied to you and said that she could sell you a half-ball of ice, although she intended to sell you rock salt as a substitute. An arrangement was made between the two of you to meet outside an address in Port Melbourne at 11:30pm on 15 July 2021.
16The victim, who was aged 23 years, arrived at the location on her own and texted you to inform you of that fact. You then approached her vehicle and, as she rolled down the driver’s side window, you reached in and pulled the keys out of the ignition. You then got into the back seat behind her and pulled out a black handgun, which you pointed at her head demanding the drugs and her wallet. She gave you a paper bag containing rock salt and handed over her wallet, telling you that there was no money in it. You continued to point the gun at her whilst examining her wallet, which held a licence but no money. You then returned her car keys and left her wallet on the back seat and took the paper bag, which you believed contained methylamphetamine, without opening it to examine the contents.
17On 16 July 2021, your victim reported this incident and made a signed statement to police, albeit that she claimed that she had organised to meet you in order to sell an iPhone to you. She was subsequently arrested and charged with attempting to traffick a drug of dependence and acknowledged her wrongdoing.
18When ultimately arrested and interviewed by police on 3 September 2021, you admitted that you had met up with the victim in order to purchase methylamphetamine, but denied removing her keys or pointing the imitation firearm at her head or demanding that she hand over her wallet. You declined to provide police with your account logon details relating to the app via which you had communicated with Ms Apostolidis. However, analysis of your mobile phone showed that you and Brayden Cannon (to whom I have previously referred in relation to the other indictments), had messaged each other about “rolling and stamping” drug dealers and users. There was also evidence of a subsequent arrangement whereby you had instructed Cannon to tell a potential buyer to meet you at the same address in Port Melbourne which you had appointed as the meeting place for the victim, Ms Apostolidis.
19In addition to the abovementioned charges, you have pleaded guilty to two further summary offences. On 3 September 2021, police observed you driving a vehicle fitted with stolen registration plates. They followed you to where you parked the vehicle in a driveway at Croydon and ultimately found you hiding in a rear shed. When asked to provide your name, you provided a false name. This is the basis of Summary Charge 35, which carries a maximum penalty of 5 penalty units. When police searched the boot of the vehicle you had been driving, they found a Milwaukee bag containing numerous power tools on which were marked the initials “JT”, which you claimed to have purchased. This is the basis of Summary Charge 8, dealing with property suspected of being the proceeds of crime, which carries a maximum penalty of 240 penalty units or 2 years imprisonment.
20You are presently aged 35 years, having been born in January 1988. You come before the court with a limited criminal history of one court appearance at Ringwood Magistrates’ Court on 10 September 2007 for offences of being drunk in a public place, resisting police and recklessly causing injury. On that day, the disposition of the court was a without conviction Community-Based Order for a period of 12 months, which included conditions of performing 60 hours of unpaid community work and undergoing assessment and treatment for alcohol/drug addiction or psychological/psychiatric assessment and treatment as directed. There is no material before the court to suggest that you breached that order. Nor is there any material as to whether you did or did not undergo assessment and treatment for drug or psychological issues.
21In a plea on your behalf by Ms Ballard, the court was told that you were born in Northern Ireland where you lived as the only child of your parents. You and your family migrated to Australia when you were seven years of age in order to escape “the troubles”. Your parents separated when you were 13 or 14 years old. You grew up and attended school in Croydon, but left school either during or after completing Year 10. Your counsel stated that you had been bullied at school because of your Irish accent and, also, because you had suffered a serious injury to your left eye in Year 7, leaving you blind in that eye. She stated that you had instructed that you were traumatised by the death of your best friend in a car accident in your street when you were in Year 10. Following this, you struggled to cope, left school, had a falling out with your father, and were “kicked out” of home and went to live with your grandfather.
22After leaving school, you completed at four-year carpentry apprenticeship. Meanwhile, your father had gone to live in the United Kingdom and you travelled there and worked in your trade from 2008 until 2012, when you returned to Australia. Thereafter, you set up a business of your own selling thermal pipes. However, you instructed your counsel that another friend, Nick, died from an overdose in 2017 and, following that, you “spiralled downwards” through using drugs yourself. You had apparently used them from time to time in the past, but, from 2017 onwards, became a very heavy user of methylamphetamine. Your counsel conceded that such drug use was behind the offending for which I must sentence you.
23Your counsel did not rely on your drug use as being mitigatory. She did refer to a report of Ms Carla Lechner, psychologist, dated 29 September 2022.[1] This report states that you suffer symptoms of a Stimulant Use Disorder in early remission in custody and unresolved Post-Traumatic Stress Disorder, and a recent history of Major Depressive Disorder.
[1]Exhibit “1”
24As I pointed out to your counsel during the plea hearing, Ms Lechner’s report is deficient in many respects in that she does not make it clear which particular self-reported post-traumatic stress symptoms relate to what event or events in your life. Nor did she explain the aetiology of what she describes as “a recent history of Major Depressive Disorder” or who had diagnosed such disorder. Many portions of her report are of a generic nature. She referred to a number of your alleged symptoms of post-traumatic stress without any detail of the content of such symptoms, and noted the fact that you did not believe that they interfered with either your social relationships or ability to work. She noted a number of symptoms of “disturbances in self-organisation, namely effective dysregulation, negative self-concept and disturbances in relationships”. She stated, without any elaboration, that “these latter symptoms indicate long-term symptoms of depression and anxiety reactive to multiple experiences of loss and trauma”.[2]
[2] Ibid p5.
25All in all, I found Ms Lechner’s report to be unsatisfactory in relation to a number of matters, and your counsel did not rely upon it in support of the application of the principles in The Queen v Verdins.[3]
[3][2007] 16 VR 269
26Ms Ballard told the court that you are ashamed of and remorseful for your offending and that, in the year and five months that you have been remanded in custody since your arrest on 3 September 2021, you have resolved to never put yourself in this position again. She noted that you had not been in any trouble at all for 15 years, but from about 30 years of age became a heavy user of methylamphetamine. She told the court that, apart from your one prior court appearance back in 2007, your only criminal history relates to subsequent convictions for 3 charges of theft of petrol and 3 other bail offences. You were on bail for these matters at the time of the offending for which I must sentence you. These were dealt with at Frankston Magistrates’ Court on 23 November 2022, and you were convicted and sentenced to an aggregate fine of $750. She stated that there had been another matter which was due to be the subject of a contested mention, but the relevant charge or charges had been withdrawn.
27The court was told that, prior to embarking upon heavy use of methylamphetamine from 2017 onwards, you had been functioning well and had a good work history. Ms Ballard stated that your first experience of being in custody had been a confronting one, which involved 16 days of isolation due to the restrictions imposed because of the COVID-19 pandemic, and during this time you were withdrawing from methylamphetamine. It was approximately two months before your prison telephone list was sorted, which made it a very burdensome introduction to the prison system.
28Your counsel was unable to point to any mental health treatment records, but claimed that, back in 2017, after the death of your close friend, you had tried to kill yourself by slashing your wrists and were in hospital for four to five days. However, she stated that there was no apparent follow-up to this episode, and you got back to work in 2019 for Mr Ben Stahr, who runs a stonemasonry business. She stated that you had worked on and off for Mr Stahr from around June 2019 until early 2021, when Mr Stahr was unable to offer you any further employment due to a downturn in work because of the COVID-19 pandemic.
29It would seem that you were functioning alright in spite of apparent use of methylamphetamine during this time but, after losing employment, again started to use heavily. Mr Stahr was present at court to support you and provided a reference to the court stating that you were a good, hard worker and were keen to return to work, which he was prepared to provide for you once you were released from custody.[4]
[4]Exhibit “4”
30Also in court to support you was Mrs Louise Callaghan, who provided a reference to the court dated 6 February 2023.[5] She is the mother of your friend, Patrick, who died at the age of 16 years in 2004. She spoke of how close you were to him and how you had always been a likeable character who was honest and easy to talk to. However, she stated that, although your parents loved you, they were sorting out their own issues and she had the impression that you were “left to figure things out on your own” and “not given boundaries or expectations to have a successful life”. She expressed her upset and shock at learning of the nature of your offending, and stated “This is not the person I knew. He was always thoughtful and caring”. She expressed the view that you have the capacity to turn your life around and is prepared to continue to support you.
[5]Exhibit “2”
31Your mother, Ms Kelly Robertson, and her sister, Ms Jennifer Robertson, were also in court to support you, along with another family friend, Shane Coils. In addition, your father, who lives in Ireland, wrote a reference stating that you had always been a good son to him and a good brother to your younger stepsister, Charlotte, who is aged 13 years. Your father has visited Australia from time to time and kept in contact with you. He stated that he is committed to assisting you financially in order to pay rent and get back into the workforce and rebuild your life.[6]
[6]Exhibit “3” dated 26 September 2022
32Your pleas of guilty in relation to the charges on the first and second indictments were relatively early and no witnesses were cross-examined at committal. For reasons which were never made clear to the court, the victim of the charge on the third indictment was cross-examined at committal. However, after the matter was adjourned to a directions hearing for a trial listing, it resolved some seven months later on 27 September 2022.
33I accept that, ultimately, your pleas of guilty were indicative of remorse. Your employer, Mr Stahr, mentioned that you were extremely remorseful and Ms Lechner, recorded that:
“(You were) depressed in mood and using a significant quantity of ice on a daily basis. (You were) associating with a negative peer network of other drug users. (You reported) that (your) offending was the result of poor judgement and decision making as well as poor impulsive inhibition. (You reported) that at the time, (you) failed to see the seriousness of (your) actions. (You are) both ashamed and deeply regretful of (your) offending. (You) expressed empathy for the victim.”[7]
[7]Exhibit “1”. Page 7, paragraph 5
34The prosecution concedes, and I take note of the fact, that your pleas of guilty were entered at a time when, the running of criminal trials in Victoria was still being disrupted due to the effects of the COVID-19 pandemic and its attendant restrictions. The utilitarian value of such pleas of guilty is enhanced by that fact and should be appropriately acknowledged by way of discount in the penalty imposed by this Court.[8] The time and cost of running three trials has been spared due to your pleas of guilty, as has the trauma to victims by having to give evidence and relive their most unpleasant experiences.
[8]Worboyes v The Queen [2021] VSCA 169, [39]
35The prosecution concedes, and I take note of the fact, that your period in custody on remand has been onerous. You personally told the court that, apart from your 16 days in isolation, you experienced a total of 99 days (albeit not continuously) of lockdown up until June or July of last year and, since then, there had been a further total of two months of lockdown. The court acknowledges the greater burden of imprisonment occasioned by these periods of lockdown as well as other times of reduced out of cell hours, a lack of rehabilitative programs and, significant periods of suspension of prisoners’ contact visits from friends and family. For a first time experience in custody, this must have been very confronting.
36You have apparently used your time in custody well. Your counsel stated that you had remained free of illicit drugs for the whole of your period on remand. There had been a reduced number of random urine tests taken during the COVID-19 pandemic, but one result of analysis of a urine sample provided on 7 December 2022, which was negative for illicit drugs, was tendered to the court.[9]
[9]Exhibit “6”
37Although there have been limited courses available, you have done those which have been offered to you, and this has included a course on alcohol and drugs and stress on 6 October 2022; a course on alcohol and drugs and anger on 2 November 2022; and a 24-hour drug treatment program on 23 December 2022. In addition, for the past 15 or 16 months in custody, you have worked six days a week from 9.00am to 3.00pm in the prison laundry. It is reasonable to infer that this is an indicator that you have been well-behaved and are trusted and using your time productively.
38Mr Haire, you should be in no doubt as to the seriousness of the offending to which you have pleaded guilty. Whilst dependence upon illicit drugs like methylamphetamine is a horrible affliction, unfortunately, a very significant amount of serious criminal behaviour is the result of the use of illicit drugs. With the exception of your criminal matters one and a half decades ago, you appear to have been of good character and have had a reasonably good work history. However, by using illicit drugs you lost your way very badly and your conduct is of a grave, antisocial and terrifying nature. Apparently you have come to deeply regret your behaviour and are ashamed of it. I accept that you have reasonable prospects for rehabilitation, however, the terror instilled in your victims should not be underestimated.
39There are no Victim Impact Statements from any of the victims on any of the three indictments. However, your victim on the first indictment, Jamie Boyle, was obviously so afraid when he saw your co-offender, Hopkinson, armed with a crowbar and you with a firearm (which he would not have known was an imitation one), walking down the driveway towards his caravan that he hid in the nearby garage.
40Mr Triantafylopoulos, in his statement to police made on 8 September 2021, described how, when one of your co-offenders pointed the handgun towards his head, he strongly believed it was real, and throughout the ordeal he thought that this was going to be the end of him. He also noted that you were the one who were doing most of the talking and your co-offenders “were just muscle”. It must have been extremely frightening for him, and his ordeal was spread over a couple of days. You and your co-offenders had initially turned up to his residence in the very early hours of the morning and returned the following day. Mr Triantafylopoulos told police that he initially did not report what had been done because he was too afraid as he was genuinely concerned for his own safety, that of his partner, and also their dogs.
41A person should be entitled to feel safe in their own home and you and your co-offenders seriously violated the sanctity of Mr Triantafylopoulos’ home and denuded it of an extensive list of possessions. By your presence, you added the weight of intimidation to the crime as Mr Triantafylopoulos was outnumbered by three to one. Also, you brazenly directed him to access his bank account and to ring Ms Benson and you compelled her to transfer money out of fear. You subsequently sent text messages, including the use of members of an outlaw motorcycle gang if he did not come up with more money. The fact that he subsequently did transfer more money to your account, even though you were not present, is an indicator of how terrified he was and how seriously he took your threats.
42Your offending against Ms Apostolidis in committing the attempted armed robbery was also of a seriously antisocial and terrifying nature. She was a young woman 10 years your junior alone late at night at a place of assignation appointed by you. You intimidated her from the outset by leaning in and removing her car keys from the ignition, and then sat behind her in the rear seat and pointed a handgun at her head while you made demands for drugs, as well as her wallet. You racked the slide on the handgun, which she was not to know was an imitation one. It is apparent that you had the intention of “ripping her off” for the drugs which you thought she had, and came prepared to do just that from the outset of your meeting with her.
43In her statement to police made on 16 September 2021, Ms Apostolidis spoke of how she was in shock and crying because she was so scared. She described it as “one of the most terrifying incidents that has happened to me. When the male racked the handgun and pointed it at my head, I believed I was going to get shot”.[10] She went on to state that, as you had searched through her wallet and stared at her driver’s licence, she “was very scared that this male was aware of my home address and when he discovered that I’d given him rock salt, there would be repercussions and retribution”.[11]
[10]Exhibit “C”, paragraph 13
[11]Exhibit “C”, paragraph 15
44Your descent into the murky milieu of the drug world resulted in you acting like a thug devoid of empathy. According to the references which have been tendered on your behalf, this is not your normal character. However, it shows the iniquitous effects of illicit drugs and the desperation to which they drive people, like yourself, who commit criminal offences and terrorise other people in the community.
45In sentencing for your offending, particularly the serious offending against Mr Triantafylopoulos and Ms Apostolidis, the court must denounce your conduct and place weight upon general deterrence. This means that, in sentencing you, a message must be sent to others who are minded to act in the appalling way that you have acted, to let them know that this will not be tolerated. Members of our community are well and truly fed up with the violence, dishonesty and antisocial behaviour of people like you who commit crimes because of drug abuse. It degrades our standard of living and sense of security. Others who might think of going down the same degenerate path as you did need to know that it will not be worth their while as they will be appropriately punished.
46To some extent, there is also some need for specific deterrence as you repeatedly offended over three months and took an imitation firearm to the scene of your offending on three separate occasions, as well as breaching your bail conditions at the time. However, I consider that this need has now been somewhat ameliorated by the fact that you have had the opportunity to reflect on your appalling behaviour whilst on remand.
47Your counsel urged that the period of 524 days which you had spent in custody up until the date of the plea hearing “is sufficient to address the seriousness of the offending” or, alternatively, a disposition which “sees (you) returned to the community forthwith should be made”. [12] As stated by me at the plea hearing, I regard such a sentence as suggested by Ms Ballard as being inadequate to reflect the gravity of your offending, and I regard the only appropriate sentence to be a term of imprisonment involving a head sentence and a non-parole period. Having said that, I am conscious that the principle of totality should be applied in light of the fact that all of the offending over the three-month period was during a dysfunctional time in your life, when your dependence upon methylamphetamine was driving your actions. Whilst I consider your prospects of rehabilitation to be reasonable, and note the positive supports that you have by way of family and an employer, it would seem that supervision on a reasonably lengthy period of parole (if you are granted it) is appropriate in your case. It should be remembered that a dependence on illicit drugs can always resurface even after a period of abstinence.
[12] “MFI-1” Outline of plea submissions on behalf of the accused, 9 February 2023, p2 para4.
48The court has been informed, in relation to the charges of burglary and theft on the first indictment, that your co-accused, Hopkinson, was sentenced in the Magistrates’ Court to a total effective sentence of 45 days’ imprisonment. Generally speaking the principle of parity requires that, like offending must attract a like sentence. In a written submission by email following the conclusion of the plea hearing the prosecutor, Mr Roper, submitted that the imposition of the same sentence upon you is within range. In all of the circumstances, although I consider the sentence imposed upon Hopkinson to be a relatively modest one, I consider that imposing a higher sentence upon you may as the prosecution states “engender a justifiable sense of grievance on (your) part and potentially constitute a sentencing error”.[13] This is particularly so give that Hopkinson, appears to be the instigator of the offending as he was the one who had some issue with the victim.
[13] “MFI-2” Email from Prosecution to the Court dated 15 February 2023.
49On the first indictment:
·on one charge of burglary and one charge of theft, you are convicted and sentenced to serve an aggregate sentence of 45 days’ imprisonment.
50On the second indictment:
·on Charge 1, robbery, you are convicted and sentenced to be imprisoned for a period of 12 months.
·On Charge 2, obtaining property by deception, you are convicted and sentenced to be imprisoned for a period of six months.
·On Charge 3, aggravated burglary, you are convicted and sentenced to be imprisoned for a period of two years.
·On Charge 4, robbery, you are convicted and sentenced to be imprisoned for a period of nine months.
·On Charge 5, possessing a drug of dependence, namely, methylamphetamine, you are convicted and fined the sum of $200.
·The base sentence on the second indictment is that of two years imposed on Charge 3. I direct that six months of the sentence imposed on Charge 1, two months of the sentence imposed on Charge 2, and three months of the sentence imposed on Charge 4, be served cumulatively upon the base sentence and upon each other. The total effective sentence on the second indictment is, thus, 2 years and 11 months’ imprisonment.
51On the third indictment:
·On Charge 1, attempted armed robbery, you are convicted and sentenced to be imprisoned for a period of two and a half years.
52On Summary Charge 4 and Summary Charge 32, each of which is a charge of committing an indictable offence whilst on bail, you are convicted and sentenced to an aggregate term of imprisonment of one month.
53On Summary Charge 7, being a non-prohibited person in possession of an imitation firearm without an exemption or approval, you are convicted and sentenced to be imprisoned for a period of three months.
54On Summary Charge 8, dealing with property suspected of being the proceeds of crime, you are convicted and sentenced to be imprisoned for a period of two months.
55On Summary Charge 35, stating a false name to police, you are convicted and fined the sum of $150.
56The overall base sentence in relation to all of your offending is that of 2 years and 11 months’ imprisonment imposed on the second indictment. I direct that the whole of the sentence of 45 days (1 month and 17 days) imposed on the first indictment, the whole of the sentence of two and a half years imposed on Charge 1 of the third indictment, one month of the aggregate sentence imposed on Summary Charges 4 and 32, one month of the sentence imposed on Summary Charge 7, and one month of the sentence imposed on Summary Charge 8 be served cumulatively upon the overall base sentence of 2 years and 11 months on the second indictment and upon each other.
57The total effective sentence is thus 5 years, 9 months and 17 days’ imprisonment.
58I direct that you serve a period of three years before becoming eligible for parole. I declare a period of pre-sentence detention of 531 days to be time reckoned as already served under the sentence imposed this day.
59Pursuant to s6AAA of the Sentencing Act 1991, I state that, had it not been for your pleas of guilty, the total effective sentence would have been eight years’ imprisonment with a non-parole period of six years.
60On Charge 5 on the second indictment, possessing a drug of dependence, namely methylamphetamine, I order pursuant to s78(1) of the Confiscation Act 1997, that the plastic bag containing methylamphetamine be forfeited to the State and placed in the custody of the Chief Commissioner of Police and be held by him until 28 days from this date or the conclusion of any appeal proceedings, where it may be tested and/or analysed and then destroyed.
61On Summary Charge 8, dealing with property suspected of being the proceeds of crime, I order pursuant to s34(1) of the Confiscation Act, that the following property be forfeited to the Minister, namely, a Milwaukee bag containing assorted power tools, an Optus mobile phone, one heart tomahawk, and one Peugeot car key.
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