Director of Public Prosecutions v Hammond

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION
CR 19-01663
CR 19-01664
CR 19-01665

DIRECTOR OF PUBLIC PROSECUTIONS

JAMES HAMMOND

ANDREW McMAHON

DAVID PEARCE

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JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	9 June 2020
CASE MAY BE CITED AS:	DPP v Hammond & Ors
MEDIUM NEUTRAL CITATION:	[2020] VCC 807

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S. Devlin
For Accused Hammond	Ms J. Turfrey
For Accused McMahon	Mr Davis
For Accused Pearce	Ms R. Avis
(For Plea)
Mr B. Barrat
(For Sentence)

HIS HONOUR:

1James Andrew Hammond, Andrew Alexander McMahon, and David Martin Pearce, you pleaded guilty to an indictment which contained four charges. Charge 1 alleges that you committed a home invasion on the 10th day of November 2018 at Mildura. When you entered as trespassers, a home in Windsor Street, with intent to commit an offence involving assault to a person therein, and at the time, you were in company with each other. While you were in that home, Thomas Clarke was then assaulted so that James Hammond, additionally, you were charged that you assaulted him and then assaulted a Mr Barker, Charges 3 and 5.
2You, Andrew McMahon, were charged that you also assaulted Clarke on that occasion, and you, David Pearce, were charged that you without lawful excuse intentionally caused injury to Thomas Clarke on the same occasion.
3The circumstances of the offending was outlined in a document tendered by the prosecution upon your plea. For purposes of this sentence, I will briefly summarise the salient circumstances.
4Thomas Clarke was known to you, Hammond, and you, McMahon, for a long time and considered you friends. He lived at the relevant address in Windsor Street in Mildura with Alessia Hillier. Clarke and Hillier and the three of you moved in the same social circles. Mr Barker is Clarke's neighbour, and lives directly across the road from him.
5Sometime in 2017, Mr Clarke allowed Ruby Smith[1], a young girl of 15 years of age to drive his car on one occasion. Unfortunately, she crashed the car and was slightly injured. Mr Clarke agreed to take the blame for the crash, and subsequently told everyone that he had been driving, in fact, he was later fined for the incident. Ruby Smith is the youngest sister of Jess Douglas, who at the time, was your partner, Mr McMahon. The fact that Ruby Smith was driving at the time of the car crash was kept secret.
[1] A pseudonym.
6In August 2018, you Mr Hammond, became aware that she had been the driver of Clarke's vehicle when it was involved in the crash, and this created some friction between you and Mr Clarke. Another reason is suggested in the material gathered for the plea on your behalf and that centres around some goods which it was said Mr Clarke had borrowed or taken from your shed. This was a vague reference referred to in a psychologist report prepared on your behalf based on your own reporting, as to the reason why you eventually went around to Mr Clarke's home on the evening of 10 November 2018.
7On the evening in question, you Mr Hammond, and Mr McMahon gathered together including with you, Mr Pearce, to have some drinks. You, Mr Pearce, are the brother of Mr Hammond's partner at the time. A discussion about the fact that Mr Clarke permitted Ruby Smith[2] to drive his car caused quite a bit of upset. You, Mr McMahon at some point, called Mr Clarke on his phone, remonstrated with him about the circumstances of the driving, made some threat, and made your feelings known to him, indicating your displeasure and your wish to inflict some injury or harm upon him.
[2] A pseudonym
8Back at the gathering, the conversations between the three of you became quite heated and you hyped each other up, about doing something to Mr Clarke. Your wife, Mr Hammond, realising that the three of you fired up with significant amount of alcohol, were likely to get yourself into trouble, hid the keys to your car so that you could not leave. However, unfortunately, at some point later in the evening, the keys to the car were found and the three of you left the property in the Commodore belonging to Mr Hammond's wife, Rebecca.
9At about 7 pm that night, the car was parked near Mr Clarke's home and the three of you proceeded to his home. Mr Clarke and Ms Hillier were in bed, watching television when they heard the car arrive. They got out of bed, and saw you, Mr McMahon, and Mr Hammond standing outside with another male they did not know. When you Mr Hammond knocked on the front door, Alicia Hillier opened the door a few inches to speak to you. You asked her, 'Where's Tom?' and, as you did so, you pushed the door open and walked past her to where Mr Clarke was standing in the kitchen.
10Hillier screamed for you to stop. You, Mr Hammond, walked directly to Clarke, grabbed him and attempted to drag him towards the front door. Mr Clarke held onto the kitchen sink, so you then decided to punch him to the right side of the temple, causing him to release that hold. At about this time, you, Mr Pearce having entered the home, immediately went right up to Mr Clarke and punched him to the right side of his head. He fell to the ground and tried to cover up. You both then, Mr Pearce and Mr Hammond, proceeded to punch and kick him several times, before he got up and tried to run away.
11While this assault took place, Ms Hillier was at the front door, was effectively prevented by you, Mr McMahon, from re-entering the home and preventing further assault on Mr Clarke. She was unable to push past you as you held up an arm to block her. Mr Clarke at this time ran towards the bedroom, was chased down by you, Mr Hammond, and you, Mr Pearce, and there the assault continued on whilst he yelled out for you to stop. At this point, you Mr McMahon yelled out, 'The police are on their way'. At that, Hammond and Pearce stopped their assault and left the hose.
12As the three of you were leaving, Mr Clarke's neighbour, Mr Barker, who had heard the commotion, approached the house and was confronted aggressively by the three of you. He was told to 'Mind his own fucking business' and to 'Get away'. Mr Barker backed off, put his hands off and you, Mr Hammond, began to chase him down the road, which you did for about 20 metres. This conduct constitutes the assault to which you pleaded guilty, Mr Hammond.
13The three of you then returned to Mr Hammond's home. Less than an hour after these events, at about 8.30 pm, each of you handed yourself to police, after some reflection, probably some advice from your partners and families in relation to the home invasion and the assaults. Each of you was cooperative with the police, participated in recorded interviews. You, Mr Pearce, admitted your involvement in the events of the evening but you claimed that you were the only one to have hit Mr Clarke. Mr Hammond, you admitted being involved in the incident, but you denied assaulting anyone, claimed that you went to the house to speak to Mr Clarke, and did not name the other two people. You, Mr McMahon, denied entering the house other than in the end to get the other two out of the house.
14You, Mr Pearce, undertook to make a statement to police outlining the involvement but you have not made such a statement. You, Mr Hammond, undertook to make a statement to police and similarly have not provided a statement. I accept that police have not sought statements from the two of you, despite your willingness to assist in their investigation. Mr McMahon, you undertook to make a statement and in fact made one in writing to police about your own involvement and that of Hammond and Pearce, and gave an undertaking to give evidence in the matter if called upon to do so in accordance with the statement.
15Each of you was remanded in custody on 10 November 2018. Mr McMahon, you were granted bail on the 12th, some two days later, so that you spent two days in pre-sentence detention. Bail was granted primarily probably due to your role in the events and your mother's serious illness at the time, a disease from which she passed away about eight days later. Mr Hammond, you were granted bail on 27 February 2019 and therefore spent 109 days in pre-sentence detention to that date. Mr Pearce, you were granted bail on 5 February 2019 so that you spent 88 days in pre-sentence detention to that date.
16It is noteworthy in this matter that the fact that the charges resolved on different dates has meant that Mr Pearce has entered a plea of guilty to a charge of intentionally cause injury for the assault on Mr Clarke while you, Mr Hammond and Mr McMahon, resolved your matters some four months later, which was done on a different footing; that is you agreed to plead to a common assault.
17Mr Pearce has indicated had indicated to plead to home invasion and intentionally cause injury on 2 April 2018, and indeed, a plea hearing had been listed for you Mr Pearce in May 2019. However, the matter did not proceed and on 5 August 2019, on the morning of their committal hearing, Mr Hammond and Mr McMahon resolved to plead guilty to home invasion and common law assault, a plea in the form offered by you, Mr Pearce, back in March 2019 but rejected by the DPP in relation to yourself.
18It is unfortunate that the three cases were not dealt with together. It has created an anomalous situation. Mr Clarke's statement clearly indicates that both you Mr Hammond, and you, Mr Pearce, punched him to the head, on the temple area, and then on separate occasions, proceeded to punch and kick him to his back and torso. There is no clear or possible distinction as to your actions in relation to Mr Clarke; indeed, any reasonable notions of complicity would indicate that you are equally responsible, your actions were equivalent on the night. However, that is not how the matter presents to this court, at least by way of the charges to which you pleaded guilty. Common assault carries a maximum of five years' imprisonment, whilst intentionally cause injury carries a maximum of 10 years' imprisonment.
19There is little by way of factual basis either to distinguish your culpability sufficiently to warrant the distinction in the charges. The one factor which can be identified is that you, Mr Pearce, did not know Mr Clarke as opposed to Mr Hammond, who had known him for a while. Therefore, in your case Mr Pearce, this was a gratuitous assault on a stranger for motives which concerned you not at all. Despite that factor, it does not appear to be a sound basis for distinguishing the two of you in the way in which the charges appear to do. The slight physical injuries suffered by the victim by way of bruising and abrasions, cannot be sensibly related to any individual attacker's actions.
20Despite the differences in penalty and relative gravity of the offensives, in my view, your criminality is similar; sufficiently so, to treat you relatively equally at least within the framework of the offending actions. Mr McMahon, you did not physically assault Mr Clarke, but it is clear that you are not an unwilling participant; ultimately, you did enter the home and you acted in concert with the other two.
21Mr Clarke wrote a victim impact statement in this matter which was tendered. He speaks of his hypervigilance and fear, heightened by noises around his home, and generally in the street. He has experienced high levels of anxiety and anger and has had difficulty sleeping and is reminded on a daily basis of what occurred in his home. His back is still in pain from the assault and it is constant pain. He writes that he relives the nightmare every day and finds it difficult to cope with the memory and has to isolate himself to manage his emotions and thoughts.
22This impact upon the victim is understandable and I have no doubt that your conduct has caused them not just physical pain and injury but psychological trauma which will remain with them for a considerable period of time. I take this impact into account.
23In recognition of its serious nature, home invasion is a category 2 offence under the Sentencing Act 1991. It is in a special category, attracting as it does a mandatory custodial sentence, that is a sentence of imprisonment unless substantial and compelling circumstances exist to justify making a different order. Another exception is if the accused provided an undertaking to assist law enforcement authorities in the investigation or prosecution of the offence. I accept that in each of your cases that you did provide an undertaking to assist and that therefore the mandatory sentencing regime does not apply in this situation. Therefore, this court is not bound to impose a mandatory prison sentence.
24However, that simply means that the court can sentence on the basis of well-understood and applied sentencing principles to determine the appropriate disposition. I will deal with each of your cases in turn.
25Mr Hammond, you presented yourself to the police shortly after the incident, cooperated with the police, made admissions about your involvement in the offending, and entered a guilty plea at a relatively early stage at committal. Your plea has a utilitarian benefit, has facilitated the administration of justice, has avoided the cost of a criminal trial, and further trauma to the victim, and amounts to acceptance of responsibility for your conduct.
26Your plea and cooperation means that your sentence will be reduced as a result of them. Your undertaking to give evidence against one or more co-accused also attracts a significant sentence discount. Your undertaking is of particular use in the current pandemic environment; all of these matters therefore go to ameliorate your sentence. The gravity of your offending, in my view, lies in the low to mid-range insofar as home invasion is concerned. However, your assault on Mr Clarke is not in the low range but rather in the mid-range of assaults, caused by punching and kicking causing pain, bruising, discomfort, and ongoing health issues.
27It was a continuing assault in separate areas of his home, committed in company, for the most part upon a man cowering on the ground and totally unable to defend himself from the onslaught. I accept that your assault on Mr Barker is at the low end of the range of gravity and, although additional to the conduct in the home, any penalty in relation to it should be concurrent with the course of conduct which preceded it.
28It is clear on the material that you were the main instigator in this hairbrained scheme. It is difficult to comprehend objectively what it was that could have motivated such behaviour. No doubt the consumption of alcohol on the night by you was the main contributor. But that of course, provides neither excuse or reason for the stupidity that followed, except to explain the contribution that each of you made to this vigilante type action.
29Such behaviour on your part must be denounced by the court as utterly unacceptable and attract punishment that will deter others who are like-minded to behave in this way. Taking the law into your own hands and imposing arbitrary punishment upon other persons at a whim, when fired up by drunkenness is reprehensible. In this sense, general deterrence must be the primary consideration in this sentence.
30I take your personal circumstances into account. You are 28 years of old, an Indigenous Australian. You experienced emotional abuse and neglect as a child, as well as the consequences of drug and alcohol use by your father, who abandoned you when you were six months’ old. Your mother remarried and you are the eldest of two boys in a blended family. You left home at 16 years of age and discontinued your schooling at Year 8, having experienced learning difficulties. You undertook a carpentry apprenticeship, although your employment history is essentially in the painting trade, in which you have a good history over a number of years.
31In March 2019, you were involved in a motorcycle accident which led to chronic back pain and later surgery was required. This led to severe addiction to your opioids to manage your pain. This has resulted in you being unable to continue as a painter and you have fallen into a severe polysubstance abuse disorder as a result, a persistent depressive disorder, and deliberate overdoses on two occasions. However, your use of alcohol and drugs pre-dates your accident and has a long history dating back to your introduction to them at the hands of your biological father when you were still a child.
32You have a relevant criminal history which I take into account in two respects: first, in realistically assessing your prospects for rehabilitation; and, secondly, due to your conviction in January 2018 and the consequent order that was made by that court, to aggravate your offending on this occasion with which I am dealing.
33You first conviction is of March 2015 when you were driving whilst affected by alcohol and you were fined. Then in January 2016, you were ordered to perform community service resulting in obstructing a police officer while adversely affected by an intoxicating substance. You breached that order and in July 2016 the order was revoked, and you were resentenced and fined $1,300. These court appearances relate to the Magistrates' Court at Toowoomba. These priors go to confirm your difficulties with substances.
34A more relevant prior is that of January 2018 at the Mildura Magistrates' Court. On that occasion you appear charged with recklessly causing serious injury and you were placed on a community corrections order for 18 months, perform 180 hours of community work to be supervised and to undergo treatment and rehabilitation for alcohol abuse, and it is therefore clear that you were the subject of that order at the time of these offences which I am dealing. That aggravates your offending.
35The community corrections order to which I have referred was imposed for assault upon your father. You had both been drinking and an argument began at the end of which you punched him to his face, breaking his jaw in two places. On that occasion, you told police you had nearly a slab of beer before going to meet him.
36A report from forensic psychologist David Ball was received by the court. It is dated October 2019. Mr Ball's report begins by indicating that in assessing and detecting any distortion in your reporting, you appear to be over-representing emotional and personal difficulties consistent with a person experiencing distress and emotional turmoil and elevated scales of paranoid personality features with depression, anxiety, and substance dependence. Your current circumstances were the main reasons for this report of depression and anxiety, not being able to see your children, and unresolved grief in relation to the suicide of a cousin in 2004.
37You have difficulty sleeping and you have discussed your deliberate overdoses in the past; however, Mr Ball found no evidence of mental illness. He did opine that he gained the impression that your capacity for good judgment, to plan and execute positive and self-sustaining behaviour was impaired. You seem to have limited insight into your offending and psychological function. Your family of origin is characterised by severe emotional neglect and abuse and was generally a bad influence upon you. You told Mr Ball that you are uncertain about the current status of the relationship with your wife, with whom you fathered three children.

38Although Mr Ball noted that the medical records do not appear to relate to surgery which you underwent on your lumber region to the bike accident suffered by you, it is clear that you have suffered chronic body and back pain and that as a result your use of illicit drugs included opioids leading to some overdoses. You started drinking when you were aged about eight, compelled to drink by your father. You acknowledged polysubstance abuse including alcohol, cannabis, heroin, ice, Xanax, codeine, GHB, to deal with pain and grief and emotional dysregulation.
39You told Mr Ball that on the night in question you were only affected by four cans of low strength beer, and that you were primarily inquiring about the stuff that Mr Clarke had taken from your shed, telling Mr Ball that it was then that Pearce then started punching Clarke, minimising your own involvement. Mr Ball concludes that you presented with a number of challenging factors in terms of your safe management in the community. You would benefit from drug and alcohol relapse prevention treatment, and cognitive behavioural therapy for persistent depression. Grief counselling and appropriate pain management is also recommended. It is clear that your prospects for rehabilitation must be somewhat guarded, and minimising the risk of reoffending is dependent on your ability to deal with your alcohol and substance abuse primarily.
40I have read and taken into account other background material, including a diagnostic assessment in relation to your 2006 school year, which describes your learning difficulties, probable dyslexia, and the need for speech pathology, with reading and writing skills well below your age level at Year 8. I also read a speech pathology report, which confirmed these early difficulties in education.
41Extracts from your patient records at St Vincent's Hospital attended, which dealt with the lumber fusion, which was performed in 2019, and your consequent inability to continue with work as a painter; I have taken into account the chronic pain which besets you in relation to your back, a matter to be taken into account when considering your imprisonment.
42A report in relation to your young son, Charlie was also tendered, an evaluation and diagnosis in respect of his autism spectrum disorder, and the impact upon him of that condition, which requires significant attention. I accept this cause of concern to you. In this context, I was told that you are enrolled in the Parenting Inside Out program at Ravenhall, an evidence-based parenting skills training program over three weeks, which you completed and contributed to. It is unfortunate that you did not consider the consequences upon your son, when you were contemplating driving to Mr Clarke's home.
43You have abstained from drug use whilst on remand and I was provided to sample assay result on 8 March 2020, showing negative results for a number of substances. Further, you have engaged in programs whilst in custody which I take into account, as demonstrating a commitment to self-improvement and some attempts at rehabilitation. The parenting course which I have just mentioned involves some 24 hours of classes which you completed.
44A number of other certificates were tendered, which I take into account as demonstrating that you have used your time on remand in a positive way. From the Kangan Institute, a certificate in relation to community services involving CPR, emergency life support, and first aid, programs in relation to alcohol and ICU, civil construction, vocational pathways and building better relationships. You also completed programs in traffic control and safe food handling, and more importantly, you have taken culturally relevant programs, such as the Aboriginal Men's Cultural Healing program. This participation is a positive indication that you are beginning to recognise the various aspects of rehabilitative work which you need to be committed to in order to make some real changes in your future.
45A reference from your manager at CPM Building Contractors, attesting to your work as a painter dated November 2018 was also tendered, as well as a letter from Peter Reece, the owner of a bar and bistro in Dunkeld confirming that he has offered you a position as a cook, he being your supervisor at the time when you were an apprentice chef and is willing to re-employ you.
46I note that at the time of the plea, Mr Hammond, you were in custody for offences committed after the home invasion offence. Those offences were of a domestic violence nature, concerned your wife and involves some allegations of serious offending. Although I was told that your wife had given recently a second statement in your favour, the matters are pending resolution. They may be resolved in the near future. This period on remand is said to be the longest period of abstinence from alcohol and drugs and has helped you focus your mind on your children, in particular, and in the future that you wish to share with them.
47Andrew McMahon, you are 25 years of age. You made a statement to the police on 15 August 2019 in which you described the events of the evening. You called your conduct a stupid mistake, which you hope never to repeat again, and you were hoping that Mr Clarke and Ms Hillier would accept your apology. Your version was that at now time, you tried to stop Ms Hillier from entering the house, that you just walked past her into the house and told her that it would be okay. However, you described that at that time, you were seeing James and David kicking and punching Tommy whilst he was on the ground in the foetal position on two separate occasions, and that you were worried he was going to be badly hurt because they were both very angry and aggressive.
48Your undertaking of assistance and the written statement you made attract the reduction on your sentence. Your plea will also separately attract the reduction on your sentence. Both of these matters demonstrate that you are remorseful for your actions, wished to facilitate the course of justice and in relation to your plea, carries a utilitarian value of having avoided a criminal trial. You were Mr Clarke's friend of long-standing and your conduct in being willing to participate in these acts is baffling. Clearly, as in the case of the others, alcohol played a pivotal path in propelling you down this path.
49You have one prior matter in 2013 when you were placed on a bond without conviction for obtaining property by deception. This matter has little relevance to your situation before this court.
50You have recently separated from your partner and have three children of that relationship, aged four, three, and two. Your family is from the Mildura area and your father works in a local winery, and you have two sisters. You are an Indigenous Australian, you were educated to Year 10. You have largely worked in the engineering field, steel processing work and manufacturing, and just prior to being charged with this offending, you were employed as a welder for irrigation projects. After the charges became known, you lost that employment, you have not worked since, and you remain uncertain and apprehensive about your future employability.
51Since your time on remand, you assert that you have been abstinent from drinking alcohol and acknowledge that your drinking at the time of the offending was a likely cause of it. It was said upon your plea that your level of intoxication was due to your mother's terminal illness. Your sister gave evidence upon your plea that you were distressed at the time about her poor health and although this may provide some explanation, does not provide an excuse.
52Your role in my view is of less significance and gravity when compared to the other two co-accused. You did not participate in the assault or inflict injury on the victim. You seemed to have hung back once you entered, maintaining a role of observer. However, the summary of the events, which is accepted makes clear your presence was enough to discourage Ms Hillier from seeking to assist Mr Clarke.
53Your demonstrated remorse undertook to assist by providing a statement. Your family live in Mildura and I accept that any time spent in reclusion may be more onerous, due to the difficulty associated with visits, particularly from your young children, due to the distance and cost. I should note that in your case, but indeed, in the case of all three of you, the fact that co-offenders have in the end pleaded guilty, does not negate the value of your cooperation, and I do take this significant matter into account. The fact that each of you indicated your willingness to assist the prosecution, that the matter has resolved in pleas of guilty from each of you, also means that a custodial sentence is less likely to be served in protection, than other would be the case.
54However, due to the situation of the pandemic which currently is impacting our state, I take into account the fact that periods of imprisonment are more onerous and that they would ordinarily be due to that unprecedented circumstance, leading to longer hours in lockdown, the unavailability of programs and other access to rehabilitative efforts, including work.
55The court received some 13 character references on your behalf. Two of those are from former partners, attesting to the fact that you have never shown any sign of violence or aggression, and that you are a reliable and trustworthy young man. Your father also is one of the writers. He states, you are a 'Generous and caring family man'. Each of the references declares that your behaviour on the night is completely out of character, and that you are unlikely ever to reoffend in this way. Each attests to your remorse; your prospects of rehabilitation appear to be reasonably good in my view.
56David Pearce, you are 23 years old. You are the third youngest in a blended sibship of seven children: two older half-brothers of different fathers, three full blood, and a younger half-sister who has a different father. You have positive relationships with these siblings and maintain contact with them.
57Your childhood was unsettled, marked by your father's abuse of alcohol, but it was your mother who is the initiator of some violence and you witnessed her throwing knives at your father, during periods of rage. You moved frequently as a child between Western Australia, South Australia, and New South Wales. At one point, you saw your mother stab your father on his back with a kitchen knife. On another occasion, saw your mother being strangled by a stranger who was accusing your father of an affair with the stranger's wife.
58Your parents finally divorced five years ago, and your father repartnered. You are not currently in contact with your mother, who evicted you whilst you were on bail for these matters.
59You had dyslexia as a child and because of your learning difficulties, you left school at the start of Grade 10 in Queensland. You were diagnosed with attention deficit hyperactivity disorder and oppositional defiant disorder by a paediatrician when aged nine. After you left school you started an apprenticeship as a mechanic but discontinued after a year and then had work in a wrecking yard for a couple of years. After doing some cabinet making, you began working on a dairy farm and that employment was terminated a week prior to the offending. You are currently unemployed but are hopeful of recommencing employment as a dairy farmer.
60It is clear that you have had formative years marked by dysfunction and social and psychological disadvantage. At the time of the offending, you were in a relationship with a woman whom you have known for many years. However, in February or March of this year she left you, leaving you with full custody of a young daughter, who is now aged about 22 months. Due to your partner's medical condition at the time of the pregnancy, that period was extremely stressful and you were diagnosed by your GP with post-partum depression and referred to a psychologist. As a result, you were prescribed antidepressants.
61You had started drinking around the age of 19 and had been a heavy drinker since then, consuming approximately beers per day on average for quite long periods of time. In May 2019, just prior to when your plea was scheduled to proceed, you told consultant psychologist Carla Ferrari, that at the time of the offences, you had consumed almost double this over several hours. This report was tendered to the court. You told a psychologist that you had reflected on your behaviour and you expressed remorse, guilt, and shame and disappointment in yourself.
62In the company of your brother-in-law, Mr Hammond, and Mr McMahon as well as their partners, you recalled drinking beer with Mr Hammond and discussing the news that the 15-year-old sister of Mr McMahon's partner had been allowed to drive without a licence, which angered the individuals present, particularly Mr McMahon. You did not know Mr Clarke and had only met Mr McMahon that day. You went along due to allegiance to your brother-in-law, but you were also upset that someone had put a young girl in a dangerous position. You followed Mr Hammond into the house. You then asserted that you 'blacked out' and that, once you threw your first punch, you automatically went into a 'shutdown mode'.
63You explained that this has occurred throughout your life during periods of extreme stress or anger, seemingly a lapse or loss of awareness. A psychologist thought this was the brain's inability to interpret and process and regulate your emotions, because of the overwhelming sensory input. Your recalled punching the victim several times and then leaving. You decided then to go to the police having realised the situation had escalated unnecessarily, and that your behaviour was wrong.
64You describe ongoing low mood, irritability, hopelessness and helplessness. During your remand, you were reportedly placed on suicide watch for a month. The examination of your mental state demonstrated insight and judgment, full cognitive capacity and average intelligence. You report ongoing symptoms of depression and anxiety related to your current predicament. You did not display symptoms of psychosis or personality disorder. A psychologist considered you a low risk of reoffending, particularly if your mental state improves and you maintain your abstinence from alcohol.
65Importantly, you have no prior criminal history. Ms Ferrari expresses the opinion that a custodial sentence is likely to weigh more heavily, be detrimental to your health and recovery and placing you in a volatile environment that would place you at risk of deterioration in your fragile mental state, enlivening in effect the Verdins principles 5 and 6. I take these matters into account.
66You are currently the sole carer for your young daughter for whom you are providing a stable home environment, with whom you have a close bond. You are hopeful that once this matter is dealt with you can easily find employment as a dairy farmer in your local area, which is Cobden near Warrnambool. You moved there from Mildura in order to be closer to family members, particularly your aunt and uncle and your sister and her partner, with whom you live with your daughter.
67It is fair to say that your life has changed significantly since the date of the offending, that the delay in this matter particularly as regards your case has had a significant impact which must be taken into account. This delay was not due to your fault but has had an impact upon you. Your original plea was listed on 27 May 2019. But in order to be dealt with, together with the other two offenders, there has now been a delay of almost a year. In that time, you have gone a fair way towards rehabilitation.
68The full custody of your daughter is an important new matter, since March 2020. In my view, you have had excellent prospects of rehabilitation. Your assistance with the police and undertaking to assist is a factor which will reduce your sentence, as will your willingness to plead guilty at an early stage accompanied by genuine remorse. These are all matters which I have taken into account. Of particular importance is also the fact that you were 21 years old at the time of the alleged offending, and that as a young offender, particularly a first offender, the aspect of rehabilitation must have prominence. Such rehabilitation is justified because of the community's interest as a future prospective factor for the community itself, and I take that important matter into account.
69I should indicate that the court was told that there are plans in place for the custody and care of your daughter, in the eventuality that the court sentences you to a further term of imprisonment. Your uncle spoke to the court of the family support available to you in your current environment, and the potential for work, for which he is has realistic hopes.
70The court received a number of references on your behalf. The first was from Ryan Robins, who is in a relationship with your sister and with whom you are currently residing. He attests to the fact that you are a devoted father, striving to provide your daughter with a stable environment, and also making efforts to be more involved in your local community. Your Aunt Genette also wrote a letter, she speaks of your devotion to your daughter, your generosity, and plans for the future. Your mother, Mrs Newell, also wrote a note and highlighted your remorse and caring attention for your young daughter.
71I also received certificates and a letter confirming that whilst on remand, you completed therapeutic programs. A brief five-hour psychoeducational program specific to problematic alcohol use and a program to understand and challenge unhelpful thought patterns, as well as two money management modules.
72The problematic aspect in relation to your sentencing is that your role in the home invasion was significant. You took a primary and central role in the entry of a stranger's home, perhaps out of misguided loyalty, but nevertheless, enthusiastic participation in the invasion of a home, in the evening, in company with the intent to assault, an assault which you carried out with some alacrity. You did not desist after one assault, and the pleas of the victim and her partner to stop but continued to pursue your intent to punish Mr Clarke. Your culpability in these serious offences is not low, rather, it is significant.
73The gravity of each of your offending, particularly the most serious charge of home invasion is reflected in the relevant statutory maximum penalty, notably 25 years. Home invasion is a particularly nasty form of criminal conduct, typically, multiple offenders entering a person's home intending to injure the victim for some actual or perceived wrong. The entry of the offenders acting in anger and often fuelled by alcohol, is itself a terrifying experience for the householders, irrespective of what may occur after entry.
74Here, an assault followed the entry and a penalty must also apply to that assault. You invaded the sanctity of your victim's home in the evening. You were persistent and determined in your behaviour and your conduct both individually and collectively, clearly had a confrontational aspect to it. Such vigilante behaviour is completely unacceptable, antisocial, and inherently dangerous.
75In relation to you, Mr Hammond, your conduct was aggravated by the fact that you were on a community corrections order at the time. I should note that I accept that none of you were disguised, you did not carry a weapon into the home, and that you did not use force to affect entry. Nevertheless, it was clear from the point of entry to the occupants of the home, that your intent was aggressive and confrontational. This was a considered enterprise, a foolish expedition to punish Mr Clarke. The community views offending of this kind as extremely serious and expects the courts to impose sentences accordingly.

76In formulating an appropriate sentence, I have had regard to the sentencing factors set out in s.5(2) of the Sentencing Act, the nature and gravity of your offending, your culpability and degree of responsibility for, and the impact of the offence on your victim. I have examined current sentencing practices in formulating an appropriate sentence in your case; particularly Hogarth v R, DPP v Meyers, DPP v O'Brien, Wicker & Gardner v R, Jackson v R, as well as recent decisions of this court in Binder, Jones & Turney, Taleb and Madden.
77Sentencing each of you is a particularly difficult task, not made any easier by the fact that there are three of you, and that I must consider the issue of parity as to how that is to impact upon the disposition in regards to each of you. I indicated in ordering a community order suitability assessment report, that that should not be taken to be an indication as to my likely sentence. Each of the reports received by the court found you to be suitable candidates for such an order. I shall return to the issue of parity in a moment.
78General deterrence, deterring others from offending in a similar fashion as you, is in my view, the principal sentencing factor in relation to the home invasion. Like-minded offenders must be deterred by the sentence that I impose from committing such an offence which is all too prevalent in our community. People should be entitled to close the front door, go about their business in their own home, and not have intruders into that sanctuary intent on criminal conduct. There is need for just punishment to be imposed on each of you, in order to properly denounce such conduct.
79I have sought to outline all the matters which go to mitigation of personal circumstances, which are important considerations in the final disposition. I have mentioned particularly matters in relation to you, Mr Pearce, being your youth and the delay in the matter that you have recent important responsibility in relation to your family.
80Right, I will stop. The connection to the prison has just fallen down, but I will take a moment to re-establish it. Mr Devlin, I have let His Honour Judge Allen's court know that you are going to be 10 minutes late.
81MR DEVLIN: I appreciate that, Your Honour, and if I can consider, I am here. But if there is a bigger problem, my instructing solicitor is on the link as well, so there is a back-up plan, if something goes wrong.
82HIS HONOUR: Yes. We have got the difficult an anomalous situation that Mr Hammond is obviously in custody, but that connection to him is not able to be re-established, and the prison is making inquiries to when next it could create such a link. It is really quite unacceptable.
83MR DEVLIN: Yes, Your Honour.
84HIS HONOUR: So, I think that what I will do is I will continue to sentence Mr Pearce and Mr McMahon, who are present in court, and when I am given a time to come back to impose sentence on Mr Hammond I will recommence and pronounce sentence on him. Although I may say something about his sentence now in his absence so that the totality of the sentence is able to be understood and then I will repeat it when he is - when the connection is able to be re-established.
85But we have limited tranches of time with the prison and even though I really only started at a quarter to 10, because that is when it was available, that is the situation as it is.
86MR DEVLIN: Yes, Your Honour.
87HIS HONOUR: Yes. In relation to the other parties who were connected to us, sorry, are they still connected or not? I think the people who were linked in before should - perhaps we can dial them back.
88MR DEVLIN: Yes, Your Honour.
89HIS HONOUR: But I will have to announce the sentence again in relation to Mr Hammond when his link is able to be re-established.
90MR DEVLIN: Yes, Your Honour.
91HIS HONOUR: I am happy to do that at some time during the day.
92MR DEVLIN: That is my instructing solicitor, Your Honour.
93HIS HONOUR: The gentleman who is on the ‑ ‑ ‑
94MR DEVLIN: Yes, disappears.
95MR DAVIS: Hello everyone, I have a view of the Bar table again and can hear the ‑ ‑ ‑
96MR DEVLIN: And that is Mr Davis.
97HIS HONOUR: That is Mr Davis, all right. Counsel for Mr Hammond.
98MS TURFREY: Yes.
99HIS HONOUR: You are present in court. I will recite the remainder of my sentence so that there is no disruption and no bits left out and then, I repeat, when we are able to re-establish the link, whether immediately or at some point this morning or this afternoon, for that matter, I will come back to this point and begin again in his presence, at least by way of a video connection that holds.
100MS TURFREY: Thank you, Your Honour.
101HIS HONOUR: I will continue.
102MR DEVLIN: Yes, Your Honour.
103HIS HONOUR: I have sought to outline all the matters which go to mitigation and personal circumstances which are important considerations in the final disposition. I have mentioned particular matters, in relation to you, Mr Pearce, being your youth and delay in the matter, and your recent responsibility in relation to your family. I have mentioned the aggravating factor in relation to Mr Hammond, as well as his prior history. In relation to you, Mr McMahon, primarily your lack of prior criminal history and good prospects.

104I have given this matter anxious consideration and, although these factors apply to you individually, the gravity and seriousness of your conduct nevertheless compels me to have to impose terms of imprisonment as well as a combination sentence in your case, Mr McMahon. In relation to you, Mr Hammond and Mr Pearce, the overriding principle of general deterrence and the need to impose just punishment for your offending means a term of imprisonment combined with a community corrections order is not an appropriate disposition.
105However, it is plain that the terms of imprisonment which I will impose are extremely lenient. In my view the home invasion per se is low grade in relation to that serious offence. However, the assault perpetrated upon Mr Clarke is a serious assault in the middle range of that offence.
106As is often the case, the application of the parity principle is fraught with difficulty and it is in this case. I am mindful I should not impose an artificially low sentence purely because of the sentences imposed on your co-accused but rather an exercise in recognising the similarities and dissimilarities between your roles and your personal circumstances which may justify and differentiate sentences between you.
107In my view Mr Hammond and Mr Pearce's role both in the home invasion and in the assaults allow for no differentiation as between them. However, such differences are allowed because of their personal circumstances being significantly different and in my view this factor creates a meaningful difference by way of disposition which would be seen in the sentence.
108Mr McMahon is able to be differentiated again because of his role being much less, both in the home invasion and in the assault. This again in my view legitimises the difference in his sentence from the other two. I am persuaded that the relative disparity from the sentence imposed on each of you would not lead to a justifiable sense of grievance on the part of any of you because it is based on the understanding of the different roles played by you and your different personal circumstances.
109In relation to Mr Hammond on the charge of home invasion, he is convicted and sentenced to 18 months' imprisonment. On the charge of assault he is convicted and sentenced to 12 months' imprisonment. That is the assault on Mr Clarke. I order that six months on the assault charge be cumulative on Charge 1. On Charge 5, that is the assault on Mr Baker, he is convicted and sentenced to one-month imprisonment, which will be concurrent with the other sentences imposed. That is a total effective sentence of 24 months' imprisonment. I order a non-parole period of 14 months. I declare that he has served 104 days, that is about four months, by way of pre-sentence detention.
110Mr Pearce, on the charge of home invasion you are convicted and sentenced to 12 months' imprisonment. On the charge of intentionally cause injury you are convicted and sentenced to 12 months' imprisonment. I order three months on the assault charge be cumulative on Charge 1. That makes a total effective sentence of 15 months. I order a non-parole period of nine months. I declare that you have served 88 days or about three months by way of pre-sentence detention.
111Mr McMahon, on the assault charge you are convicted and sentenced to three months' imprisonment. On the charge of home invasion you are convicted and sentenced to a community corrections order for two years, which will follow your period of imprisonment. During that period you will be obliged to attend to supervision by Corrections and obey their lawful directions and be of good behaviour. I declare that you have served two days by way of pre-sentence detention.
112But for your plea, Mr Hammond, you would have received 36 months' imprisonment with a non-parole period of two years. But for your plea, Mr Pearce, I would have sentenced you to 24 months' imprisonment with a non-parole period of 14 months. But for your plea, Mr McMahon, I would have sentenced you to 10 months' imprisonment. These three last indications of sentences which would have been imposed but for your pleas relate to the reduction of your sentence as a result of your plea. Your sentence has been further reduced by your undertaking to assist.
113COUNSEL: As Your Honour pleases.
114HIS HONOUR: Mr Pearce and Mr McMahon can be taken down. When Mr Hammond is available again I will repeat the sentence imposed upon him.
115MR DEVLIN: Your Honour, can I just indicated that when Mr Hammond's plea is - sorry, his sentence is finished, either I or ‑ ‑ ‑
116HIS HONOUR: Just wait, Mr Devlin, please. There's a bit too much happening at the moment.
117VOICE (from body of the court): Excuse me, Your Honour, there's no Mr McMahon.
118MS TURFREY: No, Mr McMahon's in Mildura, Your Honour. I saw it on the screen before.
119HIS HONOUR: I thought Mr McMahon was in court. I'm sorry, I don't remember recognising him. So where is he?
120MS TURFREY: I understand, Your Honour, I'm ‑ ‑ ‑
121MR DAVIS: Your Honour, Mr McMahon's in the County Court at Mildura.
122HIS HONOUR: Right. Sorry, can we connect back into that court and is there security there?
123MR DAVIS: The court hadn't had any proper arrangements, but my instructor's there and he will hand himself in or wait for security to arrive.
124HIS HONOUR: I think he should wait inside the court and I'll have some contact made with the court so that security can take custody of him. He should remain in the precincts of the court with your instructor if that's possible.
125MR DAVIS: I'll just tell him to wait in ‑ ‑ ‑
126HIS HONOUR: Yes.
127MR DAVIS: He's upstairs in Court 3, the County Court.
128HIS HONOUR: Yes. Well, if he can wait ‑ ‑ ‑
129MR DAVIS: He's okay to wait.
130HIS HONOUR: If he can wait in the court, that will be fine. With your instructor that will be very helpful, thank you, Mr Davis.
131MR DAVIS: As Your Honour pleases.
132HIS HONOUR: I apologise. I thought Mr McMahon was in court.
133MR DEVLIN: Can I apologise. I haven't assisted Your Honour. I thought Mr McMahon was in court too. Just in relation to Mr Hammond's sentence, whenever that's arranged either I or my instructor will be connected to assist Your Honour.
134HIS HONOUR: Well, as long as my associate has your contact details then that can take place.
135MR DEVLIN: Yes.
136HIS HONOUR: I repeat I will be available to do that. 12.30, fine. Will you be available, Mr Devlin, at 12.30?
137MR DEVLIN: Well, I'm not sure what ‑ ‑ ‑
138HIS HONOUR: You're not sure?
139MR DEVLIN: Hopefully, but I'll ‑ ‑ ‑
140HIS HONOUR: Well, either you or your instructor ‑ ‑ ‑
141MR DEVLIN: Yes, Your Honour.
142HIS HONOUR: ‑ ‑ ‑ can come to court for that purpose.
143MR DEVLIN: Yes. My instructor will be required to be linked in again.
144HIS HONOUR: My associate will take care of it and, Ms Turfrey, you can be present in court if that's something that you are available to do.
145MS TURFREY: Yes, Your Honour. I'll have to work that out because I need to drive back to Mildura today, because I haver commitments in court tomorrow.
146HIS HONOUR: Right.
147MS TURFREY: One question I do need to ‑ ‑ ‑
148HIS HONOUR: It won't take more than about 20 minutes, I would have thought. Yes.
149MS TURFREY: Just a question I do have to ask about the pre-sentence detention that was declared.
150HIS HONOUR: Yes.
151MS TURFREY: I just need to make sure that number is correct for today.
152HIS HONOUR: Is there some agreement about that? I thought it was 109 declared on the last time.
153MS TURFREY: Yes, that was as at the last date.
154HIS HONOUR: Sorry, you're right.
155MS TURFREY: But because he's now had extra time in custody I think that needs to increase, but maybe we can have that discussion and give you that number at 12.30, Your Honour.
156HIS HONOUR: Yes, thanks. I'll correct it if there is more time.
157MS TURFREY: Yes.
158HIS HONOUR: I thought that that may not be the case because he was then taken into custody for other matters so that the only referable amount by way of detention which related to this matter was 109 days.
159MS TURFREY: And that may very well be the case.
160MR DEVLIN: And that is the case, Your Honour.
161HIS HONOUR: Right.
162MS TURFREY: So I'll withdraw that.
163HIS HONOUR: All right, that's fine.
164MR DEVLIN: If I could be excused, Your Honour.
165HIS HONOUR: Are the rest of the details of the matters clear in relation to the sentence?
166MR DEVLIN: Yes, Your Honour, clear.
167MR BARRAT: Yes, Your Honour.
168HIS HONOUR: All right. Well, I'll wait till we get this right. Thank you, Mr Davis, for beaming in.
169MR DAVIS: As Your Honour pleases.
170HIS HONOUR: Hopefully there won't be too much of a to-do in relation to Mr McMahon up at the court. No doubt I'll be told if there is, but I think you should probably tell your instructor to tell Mr McMahon that if he was to abscond now that would place him in a very difficult situation.
171MR DAVIS: Yes, Your Honour. I've met Mr McMahon a few times. I have no thoughts that that will happen, sir.
172HIS HONOUR: I don't expect that anything like that will happen.
173MR DAVIS: I'll ring the court.
174HIS HONOUR: But it's important that he remain at the court until someone can come and get him. I'll stand down.
175MR DAVIS: As Your Honour pleases.
(Short adjournment.)
176HIS HONOUR: Mr Hammond, can you hear me?
177OFFENDER HAMMOND: Yes.
178HIS HONOUR: All right.
179MR DEVLIN: Yes, Your Honour. Before Your Honour commences, Ms Turfrey is linked in. I can't see her at this point of time. We were just having a discussion.
180HIS HONOUR: Yes.
181MR DEVLIN: In relation to PSD, Your Honour, the PSD as in the opening, the 109 days, is in fact correct. I think Ms Turfrey's just back on.
182HIS HONOUR: Yes.
183MR DEVLIN: Ms Turfrey was just considering whether it is beneficial to the prisoner if he claims time served that he went in custody for other matters at this point of time; however, I've got no details in relation to when he went in and how many days and whether that's appropriate. But I didn't want to cut my learned friend out.
184HIS HONOUR: Yes.
185MR DEVLIN: But my learned friend's now back on the screen, so ‑ ‑ ‑
186HIS HONOUR: Look, I was told - I recall that I was told that he'd gone into custody and that the matter was coming to a resolution at some point with some matters being contested and that a statement had been made by his partner and that there were some matters that were still going to be necessarily dealt with. I have in the back of my mind that a period had been said that he'd been in custody since October, but I can't quite find that detail now, but perhaps Ms Turfrey has that detail.
187But in any event, although I'm conscious of the fact, and I've mentioned in my sentence, that he is currently in custody for those matters, it seemed to me that, beyond clearly taking it into account in terms of totality, without any other precise information I'd be hard pressed to take that into consideration when there are clearly referable pre-sentence detention days in relation to this before being bailed. That's a matter I think that although I can properly take into account by way of totality in terms of the sentence that I impose, the fact that he's been in custody since I think - I will take it as October, unless I'm corrected, I'd be hard pressed to take them into account directly for these matters.
188MR DEVLIN: I think that's the correct position, but I certainly didn't want to cut my learned friend out.
189HIS HONOUR: I'll hear from Ms Turfrey if she - if you wish to make any submission. Can you hear me, Ms Turfrey, where you are?
190MS TURFREY: I can hear you, Your Honour. A bit staticky. Hopefully you'll be able to hear me.
191HIS HONOUR: I can.
192MS TURFREY: So my only concern was that I'm not sure what kind sentence will be conferred upon my client in the Magistrates' Court. Certainly it's not expected that the amount of time that he's served to date on those matters would be within range, so the submission was that if we count those days as part of this sentence then he obviously cannot have that taken into account with any subsequent sentence he gets in the Magistrates' Court.
193HIS HONOUR: Well, look, I ‑ ‑ ‑
194MS TURFREY: The only thing is, Your Honour, I ‑ ‑ ‑
195HIS HONOUR: One way or another, if he's been in custody for these matters and you think that he's going to get a longer sentence in relation to those matters irrespective of how they end up being resolved, it seems to me that it's more appropriate for them to be referenced by way of pre-sentence detention for those matters. One way or another they're going to have to be taken into account. It's not as if he's going to be doing time referable to nothing. The time that he serves will be taken into account.
196My own preference would be that since I have clearly a period, about four months, which is referable to this matter that I would prefer to reference that matter her by way of pre-sentence detention rather than speculate about any other sentence to come and the period to be taken into account. That can be done by the magistrate when he's sentenced for those other matters, if that's what's to happen.
197MS TURFREY: I understand.
198HIS HONOUR: And they will obviously be taken into account. I have no doubt about that and they certainly should be.
199MS TURFREY: I understand.
200HIS HONOUR: Yes.
201MS TURFREY: I understand Your Honour's position on that. What I was suggesting is that he won't get as long a sentence in the Magistrates' Court as he's currently served in custody awaiting for these matters to be heard because of the delays that have come about as a result of the COVID-19.

202HIS HONOUR: I don't think it would be appropriate for me to seek to cure that possibility or that potential by me simply taking them into account if they're utterly unrelated for these matters. That may happen to be the situation as it falls in the Magistrates' Court once that matter which is outstanding is finally resolved, but I'd be hard pressed to include specifically days of pre-sentence detention. Although I must make clear, I want to make clear again, that I'm cognisant of the fact that he's been in custody for that period and I do take into account in terms of the issue of totality so that I have adjusted my sentence in relation to Mr Hammond with a clear view to the fact that he has now been in custody, correct me if I'm wrong, since - I was told since October for these other matters that are outstanding.
203MS TURFREY: That's correct.
204HIS HONOUR: So I have tailored the sentence in relation to these matters not just by way of declaring the 109 days already served, which are directly referable to it, but because of the fact that he's been in custody and I should be aware and take it into account in relation to the totality principle.
205MR DEVLIN: Yes.
206MS TURFREY: Thank you, Your Honour.
207HIS HONOUR: I will continue my sentence where I stopped. I am sorry, Mr Hammond, that your video link ceased at that point, but I will go back and start where I had stopped and read the rest, including the sentences that I have imposed on the other co-accused so that you can understand what the court has done today.
208I have sought to outline all the matters which go to mitigation, and personal circumstances, which are important consideration in the final disposition. I have mentioned particular matters in relation to you, Mr Pearce, being your youth and the delay in the matter and your recent responsibility in relation to your family. I have mentioned the aggravating factor in relation to you, Mr Hammond, as well as your prior history, and that which I have just again confirmed. That is that I have taken the principle of totality when assessing the appropriate sentence for you given that you have been in custody since, I was told, October of last year.
209And in relation to you, Mr McMahon, primarily your lack of prior criminal history and good prospects. I have given this matter anxious consideration and, although these factors apply to you individually, the gravity of your conduct nevertheless compels me to have to impose terms of imprisonment as well as a combination sentence in the case of Mr McMahon. In relation to you, Mr Hammond and Mr Pearce, the overriding principle of general deterrence and the need to impose just punishment for your offending means a term of imprisonment combined with a community corrections order is not an appropriate disposition.
210However, it is plain that the terms of imprisonment which I will impose are extremely lenient. In my view the home invasion per se is low grade in relation to that serious offence. However, the assault perpetrated upon Mr Clarke is a serious assault in the middle range of that offence.
211As is often the case, the application of the parity principle is fraught with difficulty, as it is in this case. I am mindful I should not impose an artificially low sentence purely because of the sentences imposed on your co-accused. It is rather an exercise in recognising the similarities and dissimilarities between your roles and your personal circumstances which may justify and differentiate sentences between you.
212In my view Mr Hammond and Mr Pearce's role in both the home invasion and in the assaults allow for no differentiation as between them. However, their personal circumstances are significantly different and in my view this factor creates a meaningful difference by way of disposition which will be seen in the sentence.
213Mr McMahon is able to be differentiated again because of his role being much less, both in the home invasion and in the assault. This again in my view legitimises the difference in his sentence from the other two. I am persuaded that the relative disparity from the sentence imposed on each of you would not lead to a justifiable sense of grievance on the part of any of you because it is based on the understanding of the different roles played by you and your different personal circumstances.
214Mr Hammond, on the charge of home invasion, you are convicted and sentenced to 18 months' imprisonment. On the charge of assault you are convicted and sentenced to 12 months' imprisonment. I order that six months on the assault charge be cumulative on Charge 1. On Charge 5, that is the assault on Mr Baker, you are convicted and sentenced to one month imprisonment, which will be concurrent with other sentences imposed. That is a total effective sentence of 24 months' imprisonment. I order a non-parole period of 14 months. I declare that you have served 104 days, which is about four months, by way of pre-sentence detention.
215I sentence Mr Pearce on the charge of home invasion, convicted and sentenced him to 12 months' imprisonment. On the charge of intentionally cause injury he was convicted and sentenced to 12 months' imprisonment and I ordered that three months on the assault charge be cumulative on Charge 1. That makes a total effective sentence of 15 months. I order a non-parole period of nine months and declare that he has served 88 days, about three months, by way of pre-sentence detention.
216In relation to Mr McMahon on the assault charge he was convicted and sentenced to three months' imprisonment. On the charge of home invasion he was convicted and sentenced to a community corrections order for two years, which will follow his period of imprisonment. During that period he will be obliged to attend to supervision by Corrections, obey their lawful directions and be of good behaviour. I declared that he has served two days by way of pre-sentence detention.
217But for your plea, Mr Hammond, I would have sentenced you to three years' imprisonment with a non-parole period of two years. But for his plea, Mr Pearce - I would have sentenced him to two years' imprisonment with a non-parole period of 14 months. But for his plea, I would have sentenced Mr McMahon to 10 months' imprisonment. These three last indications of sentences which would have been imposed but for your pleas relate to the reduction of your sentence as a result of their plea. Your sentence has been further reduced by your undertaking to assist.
218MR DEVLIN: As Your Honour pleases.
219HIS HONOUR: Thank you. I don't know if Ms Turfrey can remain on the line with Mr Hammond. I don't know if she wants to speak to Mr Hammond while there's an opportunity to communicate with him or whether that's going to be done later on, but if you wish to do so, Ms Turfrey, I'll clear the court and you can very briefly speak to him. You've got about eight minutes left on this video link. I'm sorry for that limitation, but if you wish to speak to him then by all means take the opportunity to do so.
220MS TURFREY: Thank you, Your Honour.
221HIS HONOUR: I'm actually not sure how that's to be done. I suppose that if you speak he'll be able to hear you I think and that should be sufficient.
222MS TURFREY: That's ‑ ‑ ‑
223HIS HONOUR: Thank you, Mr Devlin.
224MS TURFREY: That should suffice.
225HIS HONOUR: I'll excuse you from the court.
226MR DEVLIN: Thank you, Your Honour.
227HIS HONOUR: So you've got the freedom of the court, Ms Turfrey. I'll stand down and you can speak to your client in private.
228MS TURFREY: Thank you, Your Honour.
229HIS HONOUR: I'll stand down.

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[2020] VCC 807

9 June 2020