Director of Public Prosecutions v Harrison
[2024] VCC 576
•01 May 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE KOORI COURT DIVISION | Revised Not Restricted Suitable for Publication |
CR-23-01088
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JADE HARRISON |
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JUDGE: | HIS HONOUR JUDGE JOHNS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 March 2024 | |
DATE OF SENTENCE: | 01 May 2024 | |
CASE MAY BE CITED AS: | DPP v Harrison | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 576 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW - Sentence
Catchwords: Home invasion – Koori Court jurisdiction – Plea of guilty – Category 2 offence – Substantial and compelling circumstances that are exceptional and rare – Application of Bugmy principles – Application of Verdins principles
Legislation Cited: Sentencing Act 1991
Cases Cited:Bugmy v The Queen [2013] 249 CLR 571; Fariah v The Queen [2021] VSCA 213; DPP v Herrmann [2021] VSCA 160; Honeysett v The Queen [2018] VSCA 214; DPP v Lombardo [2022] VSCA 204; R v Morgan (2010) 24 VR 230; R v Verdins [2007] 16 VR 269
Sentence: Total effective sentence of 9 months’ imprisonment in combination with a 18 month Community Corrections Order
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms A. Stephanides | Office of Public Prosecutions |
| For the Accused | Ms H. Anderson | David Barrese & Associates |
HIS HONOUR:
1Jade Harrison, you have pleaded guilty in the Koori Court before me to a charge of home invasion. The maximum penalty for this offence is 25 years' imprisonment.
2Home Invasion is a Category 2 offence.
3You have admitted relevant prior convictions.
4I dealt with your co-offender, your uncle, with whom you have a close familial link, having grown up in the same household as him. He was 50 years old at the time of your offending and you were 30. You are now 32.
5I have previously published my reasons for sentencing your uncle Frank Harrison.[1]
[1] DPP v Harrison [2023] VCC 1914
6The circumstances of your offending are set out in the Summary of Prosecution Opening which was Exhibit A on the plea and which forms part of these reasons for sentence.
7Your victim in this matter is Lukas Power. He was 39 at the time of the offending and lived in a unit on Tyler Street, Preston. He was known to you. You were friends, apparently, with him and perhaps related also.
Circumstances of Offending
8Turning to the circumstances of offending, at around 10 pm on the evening of 2 January 2022, you and your uncle attended your victim's address in an Isuzu Ute. Both you and your co-offender had hammers with you, which you hid behind your backs out of view of the door as you knocked on it.
9Your victim's stepson Jayden Robinson went to the front door to see who was there. When he opened it, you and your co-offender walked straight into the house. You both walked into the lounge room. Your victim's son went upstairs and told his brother and sister to stay in their rooms. He then stayed in the stairwell.
10Mr Power said, 'What the fuck are you doing?'. You told him to come into the loungeroom, where you both made him sit on the couch. Mr Power did as he was told, recognising both of you.
11
You asked Mr Power to show you a contact in his phone, which
he attempted to do, but could not because he did not have that person in his phone as a contact.
12Your uncle then stepped forward and asked Mr Power why he was not returning his calls and had blocked his number. Before Mr Power could respond, your uncle hit him with the flat top of the hammer above his right eye, causing instant pain and bleeding.
13You attempted to calm your uncle down, saying, 'Calm down, uncle, calm down', whilst he baulked at Mr Power as though he was going to attack him with the hammer. He said, 'You're lucky I didn't smash you in the temple, you fucking dog'.
14Your uncle then left, stopping on the way out to use the hammer to smash the CCTV camera on the porch. You followed your uncle outside and then you both left in the Isuzu Ute.
15Mr Power's partner and a neighbour in the area both called the police. Police attended along with an ambulance. Mr Power was taken to hospital for his injuries. He had suffered a cut above his right eye, which resulted in swelling and bruising. He was treated overnight and released the next day.
16You are not to be sentenced in any way for your uncle’s use of the weapon and assault of the victim.
17I am satisfied that your uncle’s conduct and role in the offending places his criminality above yours.
Arrest and interview
18You were arrested in January 2022 in South Australia on unrelated matters and remanded in custody.
19You served a sentence on those matters and were released on parole on 11 January 2023. You were then arrested in South Australia on the offending before me and remanded in custody for extradition. You were not interviewed in relation to this matter.
20You have available to you 223 days pre-sentence detention on this matter. You have been on remand or serving sentence for over two years however, essentially dating back to 13 January 2022.
21A more precise chronology is contained within the submissions filed by the prosecution and the defence in this matter.
22You pleaded guilty after a sentencing indication. It is accepted that the plea is a relatively early plea.
23You have provided an account of your involvement in the matter before me to your counsel and to the psychologist Ms Fakhri. You also expanded upon your motivation for the offending, and the drug-addled and disordered psychological state operating at the time during the Koori Court sentencing conversation.
24On balance, I accept your account.
25I also accept the opinion of Ms Fakhri at paragraph 123 of her report, which concludes a very detailed and considered analysis of the relational interplay and effect of mental illness, cognitive limitation, stressors and disorders on your functioning. Ms Fakhri opines:
'Taking into consideration Mr Harrison's history, the circumstances leading up to the alleged offences, and his functioning at the time of the offences, several factors likely contributed to his offending behaviour. His offending behaviour was predisposed by his mental health vulnerabilities and adopted lifestyle that reinforced his decision-making and judgement. His complex psychiatric profile including PTSD, ADHD, acquired brain injury, Schizophrenia, depressive and substance use disorders would have significantly limited his decision-making, rationality and logic, and resulted in Mr Harrison's offending.'
Objective Gravity of Offending
26Turning to the objective gravity of the offending. The seriousness of your offending is reflected in the maximum penalty, being 25 years' imprisonment for home invasion, of course, that is a category 2 offence. The prosecution has correctly pointed out some of the serious aspects of your offending, all of which I accept. In particular, entering a person's home at night in a confrontational home invasion, motivated by a perceived grievance with your victim, is a very serious matter. You and your co-offender brought hammers to the property.
27Whilst there was some pre-planning involved, it was not a sophisticated home invasion. As I have accepted, your offending was motivated by a perceived wrong by the victim. You were in the property for about one and a half minutes.
28I consider that the home invasion falls within the low to mid-range of the offence in terms of its seriousness.
29I have accepted that matters personal to you, such as your untreated schizophrenic illness, post-traumatic stress disorder, acquired brain injury, cognitive functioning, your cognitive processing skills, impulse control challenges, emotional regulation deficiencies, and a history of trauma, disadvantage and drug use – explain your reprehensible conduct on the occasion of your offending.
Personal Circumstances
30Turning to personal circumstances, you are a proud Gunai / Kurnai man, I was told. You are 32. You were born in Albury.
31I am not going to go into detail as to your early childhood, largely due to there not being a need to recite a lot of that detail and it may be traumatic to revisit it. The disadvantage, neglect, trauma and exposure to alcohol, drugs and violence from childhood, in your circumstances, was profound. It has shaped you.
32The effects of disadvantage, neglect, introduction to drug use at a young age, and the effects of inter-generational trauma- including the experience and circumstance of both parents and their alcohol and substance use issues- and including the experience of other close relatives such as your uncle and co-offender in this matter, whom I have already sentenced – were central ingredients of what has shaped you and your responses throughout life, your drug use and problems with drug use, your offending history, and in particular the offending before me.
33Your early life and family environment is touched on in your sister's letter to the court. That is your sister Darcy Harrison and her letter to the court, which I accept was contained therein and again, I am not going to revisit the detail, but it is eloquent in its brevity and reference to the level of neglect you experienced.
34That early life experience is also summarised at [21]-[27] of Ms Fakhri's report, and at paragraph 6b of Ms Anderson's outline of submissions.
35You were removed from your mother's care as a baby, due to her alcohol and drug use – which also likely occurred whilst she was pregnant with you. I refer again to the materials.
36You lived with your grandmother- your co-accused's mother – until you were 16 – and moved around frequently and some detail was gone into in the materials in relation to that.
37You received a likely head injury around five, when you were hit by a car.
38You were diagnosed with ADHD at six and Medicated until the age of 14 and you report occasions of your uncle standing over you and taking your medication from you.
39You experienced physical and sexual abuse and degrading and humiliating treatment as a child.
40You were introduced to cannabis at 11, alcohol at around 13, methamphetamine use at around 15 or 16. GHB, which has been a particular problem and had effects on you, at around the age of 18.
41I accept that you have engaged in several suicide attempts throughout childhood and early adult years, including by GHB overdose and hanging attempts. GHB overdoses have likely resulted in hypoxic brain events and further reduced cognitive function.
42I received some historic reports, which were exhibited on the plea hearing and referred to in the written submissions of Ms Anderson, but also the prosecution. It was very helpful, the written submissions. The report of neuropsychologist Laura Scott, who details your reduced level of cognitive function, she opined that your neuropsychological profile is consistent with acquired brain injury on the background of neurodevelopmental disability.
43As I have already alluded to, Ms Fakhri opined in detail as to the impacts of neglect, trauma, acquired brain injury and early drug use, on your processing and emotional regulation limitations.
Participation in Koori Court
44You participated in the Koori Court Sentencing Conversation and that is a matter of mitigation. I am satisfied that you engaged fully in that conversation. It is recognised that participation in that conversation is a more onerous and more difficult process to go through than in the general list plea process, because you have to be accountable and speak for yourself and that is what took place in your case.[2] You talked about your knowledge of your Gunai/Kurnai heritage.
[2] Honeysett v The Queen [2018] VSCA 214; R v Morgan (2010) 24 VR 230.
45You talked about wanting to get back and experience the support of your sister in particular and your grandmother. You are remorseful for your conduct. You showed insight and explained that your conduct was ‘appalling.’ You described the whole week leading up to the offending, how unwell you were, and this is borne out through the materials also, and the paranoia you were experiencing. You were really unwell. You then talked about the medication you had been introduced to since diagnosis with schizophrenia in South Australia whilst in custody.
46You also talked about the significant impact of being put in an induced coma, and you stated at the sentencing conversation that, 'It scared the shit out of me'. You spent a lot of time in gaol reflecting on that and that you are running out of chances. Your sister Darcy Harrison in her participation in the sentencing conversation also spoke on the topic of the coma and the frightening experience of that and how she is, not only for that reason, but in particular, endeavouring to support you and speak on your behalf, so you can avoid that lifestyle into the future.
47You spoke during the conversation of your engagement in the Wulgunggo Ngalu program in the past, which was ultimately unsuccessful, but what you did get a lot out of the program and spoke of your time with Mr Braybrook, who runs that program. You talked about your plans. One year plan, your five year plan. How you want to utilise the supports and organise stable accommodation, which will be available to you. Work part-time, play sport and eventually, as the years go by and you stabilise further, to get full-time employment and ultimately a private rental, your goal being that you become known in the community as a responsible and proud Aboriginal man. I was satisfied during the sentencing conversation of your genuine remorse and desire for reform and desire to engage with the supports that will be available to you upon release.
Other matters in Mitigation
48There were a number of other matters in mitigation which were relied upon on your behalf through your counsel, and to an extent these were also conceded by the prosecution.
49I have touched on the opinions of Ms Fakhri and also the historic report of Ms Scott. There was some discussion during the plea in relation to the application of Verdins and the prosecution accept that limb 1 of Verdins is enlivened in relation to moral culpability.[3] Issue was taken as to whether limb 3 had application, and submissions were made in respect of that, and I accept those submissions.
[3] R v Verdins (“Verdins”) [2007] 16 VR 269.
50It was also conceded by the prosecution that limb 5 of Verdins had application, and I also accept that there was some query as to whether limb 6 had application. I am satisfied, as I often find myself saying in relation to these matters, that it is difficult to separate Bugmy considerations and Verdins application.[4] I am satisfied in your case that the necessary nexus and connections exists between cognitive functioning, mental illness and the offending to satisfy the application of limb 1 of Verdins.
[4] Bugmy v The Queen (“Bugmy”) 249 CLR 571
51It is difficult to isolate it and separate it from the wholistic effect of what might be termed Bugmy factors and descent into drug use at an early age. Ultimately, it suits my purposes best to look at all of those factors together, that is the Verdins contribution and the effect of early childhood disadvantage and trauma, which is necessarily linked to early descent into drug use and the consequences and effects of not only that factor, but how that then relates to lack of housing, gravitation towards negative peers, and descent into a drug lifestyle and its links with a criminal lifestyle and other criminogenic factors, which include your cognitive profile and the operation of mental illness. All of those factors lead to a conclusion that you are not as morally responsible, is one way to describe it, or that your subjective culpability is not as high as it would be for a person who has not had their capacity or their responses affected by factors outside of their control, such as you.
52As our Court of Appeal has stated:
‘It is a mark of a humane society that the moral judgment expressed through sentencing should take account of the lifelong damage that may result from exposure to violence or abuse or parental neglect in an offender's formative years.’[5]
[5] DPP v Herrmann [2021] VSCA 160 at [46].
53The application of mitigation due to Verdins factors and Bugmy mitigation, and the wholistic effect of all of those factors together with other criminogenic sequelae stemming from those factors, provide significant mitigation in your case. I should note it is also accepted by the prosecution that you have demonstrated appropriate remorse for your offending and you do have insight.
Other Sentencing Considerations – s5(2H) of the Sentencing Act
54
Now the other sentencing issue of course is the operation of s5(2H) of the Sentencing Act1991, the charge of home invasion being a Category 2 offence which engages the mandatory sentencing provisions under s5(2H). The provisions compel this court to impose a custodial sentence and fix a minimum term of imprisonment. They also prohibit this court from imposing a
non-custodial order, even as a feature of a combination sentence.
Exceptions to mandatory sentencing
55The mandatory sentencing provisions include a number of exceptions. Relevantly in this case, it is submitted that s5(2H)(e) is engaged, in that 'there are substantial and compelling circumstances that are exceptional and rare that justify not [imposing a term of imprisonment].'[6] The exception contained in s5(2H)(e) came into its current form in 2018, when the words 'exceptional and rare' were added.
[6] Sentencing Act 1991 s5(2H)(e).
56When making the 'evaluative judgment'[7] as to whether such circumstances exist, I must regard general deterrence and denunciation of your conduct as having greater importance than the other purposes set out in s5(1); and must give less weight to your personal circumstances than to other matters such as the nature and gravity of the offence; and must not have regard to—previous good character (other than an absence of previous convictions or findings of guilt); or an early guilty plea; or prospects of rehabilitation.
[7] There is no “…burden on an offender to prove on the balance of probabilities the existence of substantial and compelling circumstances that are exceptional and rare”, see [24] in Fariah v The Queen [2021] VSCA 213.
57
I am also required to have regard to Parliament's intention as expressed in
s5(2I)(a) of the Act – that a custodial order should ordinarily be imposed for a Category 2 offence.
58When making the evaluative assessment of whether there are substantial and compelling circumstances that are exceptional and rare in this case, it is necessary to have regard to the sentencing considerations applicable to cases of home invasion – since an order to justify not imposing imprisonment, the circumstances would need to surmount those principles.
59In making that assessment, my finding that your commission of the offence falls in the lower to mid range of the range is a relevant factor. So too is my assessment of matters personal to you, and circumstantial in relation to the commission of the offence.
In DPP v Lombardo the court outlined the application of s5(2H) and the exception contained in s5(2H)(e).[8] The court considered the statutory language and identified two key steps in the enquiry as to whether the exception was satisfied:
'First, the court must identify whether there are substantial and compelling circumstances. This has been interpreted as circumstances that are weighty and forceful or powerful. The issue is whether the circumstances are substantial and compelling so as to justify not imposing a custodial sentence. That is the criterion by which the substance and compulsive force of the circumstances are to be assessed.
The second critical step, if the circumstances are substantial and compelling in the sense described above, asks whether they are also, 'exceptional and rare'. In our view, this is to be regarded as a composite phrase imposing a single test, rather than as two discrete tests. That is because the meaning of the words overlap; in particular, 'exceptional' means 'out of the ordinary course, unusual, special', which includes that which is 'rare'… the two words operate together and each influences the meaning of the overall phrase'.[9]
[8] DPP v Lombardo (“Lombardo”) [2022] VSCA 204
[9] Ibid at [66] – [67].
60The majority in Lombardo also stated the following:
‘…[exceptional and rare] refers to circumstances that are wholly outside the ordinary factors typical of the relevant offence…[10]
[10] Ibid at [71].
61In making the evaluative assessment, I am entitled to have regard to a combination of factors. Your counsel, Ms Anderson, relies on a combination of circumstances in the submission that that combination places your circumstances wholly outside the ordinary factors typical for the relevant offence.
62There are many factors personal to you and that also relate to the circumstances of the offence, some that have arisen since the commission of the offence, that satisfy the test in my assessment. To summarise:
·Bugmy mitigation, with its full effect, due to profound childhood disadvantage and its connection with the drivers of the offending in this case, intertwined as this factor is with other relevant factors, such as cognitive functioning, vulnerability to drug use, maladaptive coping mechanisms and so on. To expand on that and what is meant by that, it is the effect of the whole rather than the sum of the parts, that provides the mitigation of moral culpability or an assessment of moral culpability in light of all those factors and the interplay between them. Your moral culpability for engaging in drug use as a child is of course substantially reduced from what would apply to an adult. That small aspect of your experience has no doubt been a big contributor to your engagement with the criminal justice system from an early age, and other factors flow from that such as homelessness. Of course it is not the only factor.
·There are the cognitive limitations, there is mental illness. There is the effect of trauma and Ms Fakhri talks about how some of those early childhood experiences and traumas can shape the brain and its responses. The combined force of those factors which, in that specific limb of mitigation, that is Bugmy mitigation, has significant effect.
·Another separate factor for the purpose of summarising the combination of circumstances, but it is related to what I have just stated, your mild intellectual disability and Acquired brain injury, or what might be better put under the heading of cognitive profile.
·Remorse and desire to reform and engage with programs, the very high level of NDIS support and I am satisfied that part of this emerged during the discussion in the sentencing conversation, it has emerged in clearer terms with the materials that have been filed this morning and which I will exhibit on the plea, that is the NDIS plan, the extent of it, I am satisfied that whilst you have had NDIS available in the past, you have not had such a comprehensive and well-structured plan. It is a plan which I am told is funded to up to $800,000 over a 12-month period for housing and other supports. It is a significant factor which I am satisfied has not been available to the same extent previously. That factor must also be assessed in light of what I find to be your genuine desire to engage and for a number of reasons set out in the materials, but also emerging in the sentencing conversation, you are at a watershed moment in your life where, due to the coma, the length of time in custody and supports available to you, you know you are running out of chances, to use your own words. You are at a point where I am satisfied you have a real chance of embracing those supports.
·Strong support from your sister. I have touched on this.
·Your experience of induced coma as a wakeup call.
·The significance of the diagnosis of schizophrenia whilst in custody in South Australia and the medication and treatment for the same which now appears to be stable cannot be underestimated.
·I have also been told today about the treatment for ADHD, the Ritalin treatment, which you now have available to you in custody.
·
Another significant matter in combination is the two years or so in custody with only a short interval, as I understand it, at large before being reincarcerated. A lengthy period in custody with only seven months of that period or so available as pre-sentence detention. Totality must be applied, and it is difficult to apply totality with a head sentence and a
non-parole period. A straight sentence simply would not be appropriate in your case, not the least of which would be to meet the requirements of denunciation and general deterrence.
·So there has been a period of delay whilst you have been in South Australian and then extradited to here. That delay has had some effects. During that period of delay you have been diagnosed and medicated. You have been engaging as best you are able in the opportunities for rehabilitation and you have participated in the sentencing conversation and discussed your willingness and desire to utilise the NDIS supports available to you.
·Moderation of sentence due to Verdins connection to the offending, the mental illness and cognitive limitations and their role in the offending, through which I assess your moral culpability. I have already made mention of how those factors intertwine with the Bugmy mitigation and it is not of great utility to separate them out, save for when discussing a combination of factors.
·Your participation in the sentencing conversation, the Koori Court sentencing process.
·Plea of guilty. And I pause to emphasise the plea of guilty rather than the early stage of the plea of guilty.
·Hardship in custody due to, to use the shorthand, Verdins considerations. Hardship in custody in the extent that limb 5 of Verdins provides, rather than 6.
·My assessment of the circumstances of the offence and the drivers of it, and in particular your role in relation to your uncle.
·Finally, the application of some mercy, given what I have said about it being at a point in your life where I consider that it is a watershed moment and you have an understanding that this is it for you, this is the opportunity. There are real concerns and risks associated with your prospects and I am guarded about your prospects, but there are a broad range and significant range of factors that have not been available before. Some of them are due to the circumstances of your being in custody for a significant length of time but you are at a point where there is a range of services and supports which can be tailored to you, provided in a more effective way, given your attitude, which I am satisfied of; medications and treatments you have benefited from which will assist with that.
63I am satisfied that these factors in combination amount to substantial and compelling reasons, that in the circumstances of this case are exceptional and rare and justify not imposing a sentence of imprisonment.
Other Sentencing Considerations
64Having reached that conclusion, I then have to have regard to parity I have of course reflected on the discussion we have had this morning and the further materials. In relation to parity I will say this first of all. That there is a very significant difference, notwithstanding the similarities in criminality, a substantial difference based on the extended period of supervised bail that Mr Frank Harrison was under, at the time he came to the sentencing conversation, and at the time he then fell to be sentenced. That raised some different sentencing considerations once the exception was made out, than apply in your case. Those different circumstances of the situation he was in and the progress that he had made in the community, placed him in a different circumstance from you.
65I have received an extended pre-sentence report which we have discussed this morning, which in brief terms assessed you as unsuitable. I can of course still impose a CCO, and I have reflected on the submissions from this morning, the excellent submissions made by both Ms Anderson and Ms Stephanides, which were all well made submissions on an appropriate basis.
66I have reflected further on the matter. The extended pre-sentence report, I am satisfied placed emphasis on the fact of prior NDIS support, which based on the information I have and what has been before me and what I have heard through this plea, is emphasis which is a little misplaced because what I have accepted, not just today but through hearing the plea and the sentencing conversation, what I have been shown in documentation today in relation to the full plan, is that there is much greater NDIS support, well thought out and well planned support and better funded support than there has previous. Coupled with that I am satisfied of your genuine desire to engage with that support.
67There is also mental health concerns raised in the extended pre-sentence report and I accept there are real challenges for Corrections in dealing with people that can present with the complex combination of trauma, cognitive limitation and mental illness and vulnerability to drug use, that are all present in your case. It can present real challenges.
68I have to sentence you however on the basis of what I accept and what I see and what I have been satisfied of based on evidence, and that is that you have been in custody for a lengthy period of time. You have been medicated in relation to schizophrenic illness, but also in relation to ADHD more recently, and you will have that level of NDIS support.
69I also have to have regard to parity and in any sentence I impose, if I were not to impose a community corrections order, I would be imposing a head sentence with a non-parole period where you would be eligible for parole, at the same time as you would be released on a CCO, for the reason that you do need supports and supervision in the community upon release. If I were to go down that path, I do have to consider that you may serve the whole sentence and that presents some challenges in applying the principle of parity.
70Ultimately, I have concluded that the appropriate sentence in your case, taking into account the prominence of general deterrence and denunciation, and specific deterrence in your case, is a combination sentence. I sentence you as follows, Mr Harrison.
Sentence
71On Charge 1 I sentence you to 9 months' imprisonment, in combination with an 18-month community corrections order.
72Pursuant to that community corrections order, you are to perform 75 hours of unpaid community work.
73You are to engage in mental health assessment and treatment as directed.
74You are subject to supervision.
75Drug and alcohol assessment and treatment as directed.
76I will add judicial monitoring condition, three months from today and then to be assessed thereafter.
77Fifty hours of therapeutic services participation can be credited towards the community work.
78I declare that you have served 223 days as pre-sentence detention.
79Pursuant to s6AAA of the Sentencing Act, were it not for your pleas of guilty, I would have sentenced you to a head sentence of three years and a non-parole period of two years.
80Now, Mr Harrison, do you consent to entering that community corrections order, once you have completed your custody?
81OFFENDER: Yes, Your Honour, I do.
82HIS HONOUR: You do, all right.
83OFFENDER: Yes, Your Honour, I do.
84HIS HONOUR: Yes. As you understand from your history, but I need to tell you again, that if you don't comply with that order - - -
85OFFENDER: I know, Your Honour. Last chance.
86HIS HONOUR: - - - if you breach it by re-offending, you come back to me for re-sentencing.
87OFFENDER: I know, Your Honour. I understand that, Your Honour.
88HIS HONOUR: Yes, and based on what I have been grappling with today, I think I can say quite confidently if it appeared to me that you were unable to complete that order for some of the reasons raised in the pre-sentence report, I would not have any difficulty re-sentencing you to a head sentence and a non-parole period.
89OFFENDER: I understand, Your Honour. You won't see me again.
90HIS HONOUR: Well it's good to hear. I just want to make that clear. I will take your verbal consent as consent to the order.
91OFFENDER: Yes, Your Honour.
92HIS HONOUR: But the order will be sent to you in the prison for your signature.
93OFFENDER: Yes.
94HIS HONOUR: I have sentenced you to nine months, of which you have served 223 days.
95OFFENDER: How long does that leave me sir?
96HIS HONOUR: Probably about a month and a half roughly.
97OFFENDER: Okay.
98HIS HONOUR: It depends on emergency management days. So that gives you some time for the - - -
99OFFENDER: Thank you, Your Honour.
100HIS HONOUR: - - - NDIS really be true to what is presented to me and - - -
101OFFENDER: Yes.
102HIS HONOUR: - - - have housing in place and all the support - - -
103OFFENDER: It's already in place, Your Honour.
104HIS HONOUR: Well that's good to hear. It gives you time to get your head around things.
105OFFENDER: Yeah.
106HIS HONOUR: And to sort of think about what you're going to do to occupy your time when you're out.
107OFFENDER: Yeah. I already know what I'm going to do, Your Honour.
108HIS HONOUR: Yes. Do some painting and - - -
109OFFENDER: I've got part-time work.
110HIS HONOUR: - - - and you've got the strong support of your sister and I know you've got a lot of reasons for motivation, but you don't want to let her down either.
111OFFENDER: No, I understand, Your Honour, I do. She's going to be wrapped I'm getting out soon.
112HIS HONOUR: All right.
113OFFENDER: Thank you, Your Honour.
114HIS HONOUR: That's all right. Is there any other orders, Ms Stephanides, in this matter?
115MS STEPHANIDES: No, Your Honour.
116HIS HONOUR: Thanks, Ms Anderson. All right, well I will see Mr - - -
117OFFENDER: Thank you, Heather.
118HIS HONOUR: I will see you again in three months' time - - -
119OFFENDER: Yeah, yeah I know, yeah.
120HIS HONOUR: - - - because I've got a judicial monitoring condition.
121OFFENDER: Yeah, I know that. Yeah, I know that yeah.
122HIS HONOUR: So that's when I will hear that everything's in place and that you're going well - - -
123OFFENDER: Yes, you will.
124HIS HONOUR: - - - and that you've kept all your appointments.
125OFFENDER: Yes, you will.
126HIS HONOUR: And we'll iron out any – if there are any problems, we'll iron those out as well. All right, thank you.
127OFFENDER: Okay, Your Honour. Thank you so much. Heather, thank you so much.
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