Director of Public Prosecutions v Hayes (No. 1)

[2017] VCC 60

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-01436

DIRECTOR OF PUBLIC PROSECUTIONS

v

LEROY HAYES

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JUDGE:	HIS HONOUR JUDGE STUART
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	9 February 2017
CASE MAY BE CITED AS:	DPP v Hayes (No. 1)
MEDIUM NEUTRAL CITATION:	[2017] VCC 60

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr H. Boyd-Wilson
For the Accused	Ms K. Webster

HIS HONOUR:

1Leroy Hayes, you have pleaded guilty to one charge of using a carriage service to menace, harass or cause offence.  It carries with it a maximum penalty of three years' imprisonment.  Charge 2 is a charge of attempted aggravated burglary which carries with it a maximum penalty of 20 years' imprisonment and Charges 3 and 4, being two charges of criminal damage, which carry with them a maximum penalty of ten years' imprisonment.

2In addition, you have pleaded guilty to related summary offences.  Charge 5, unlawful assault, which carries with it a maximum penalty of three months' imprisonment.  Charge 6, unlawful assault with a weapon, namely a shovel, which carries with it a maximum penalty of two years' imprisonment and Charge 8, having been granted bail, without lawful excuse breached the condition of that bail not to contact or communicate with the victim, Rebecca Shaw, which carries with it a maximum penalty of three months' imprisonment.

3The circumstances surrounding your offending are as follows.  You were born on the 20 October 1987 and your victim was your ex-partner, Rebecca Shaw.  At the time of the incident, she lived in O'Neill's Road, Lakes Entrance. She had lived there for some three and a half years.  You had lived there with her for about three of those years.

4On the 28 April, Ms Shaw was at home in Lakes Entrance with two of her children.  At approximately 5.30 am, you rang her and said, "Open the fucking door, you fucking slut."  She then heard a loud bang at the front door.  She went to the door and saw you.  You appeared to be wobbly on your feet, fidgety, paranoid and drug affected.

5She let you into the house.  You then began checking all the windows and rooms in the house and asked her if there was another man in the house.  She went to the bathroom and had a smoke.  You became agitated, raised clenched fists and told her that you would kick her head in.

6Ms Shaw asked you to leave but you responded by saying, "As long as I get a suck because that's what sluts do."  She then got ready for work and left the house with the children, whilst you stayed on.  Whilst she was at work during the day, you continually harassed her by ringing her mobile phone approximately 40 to 45 times.  You accused her of sleeping around and you threatened to smash up the house and kick her head in.  Those acts are the subject of Charge 1, a rolled up charge of using a carriage service in a manner to menace, harass or cause offence.

7At approximately 10.05 in the evening, she was at home in her bedroom when she heard a tap at the door.  Her three children were also at her home.  She got out of bed, walked to the lounge room sliding door at the side of the house and opened the blind.  She saw you running towards her at the door.  You grabbed hold of the screen door and said, "Open up the door, you fucking slut."  She asked you to go away and then rang the police.  That act is the subject of summary Charge 5, unlawful assault.  You then ripped off the screen door, grabbed the shovel from the front garden and smashed the window of her bedroom.  That is the subject of Charge 3, criminal damage.

8You said, "There is a man in the house, tell him to come out."  You tried to climb in through the broken window, which led you to sustain minor lacerations to your arms.  You grabbed a skateboard and threw it at the front door, hitting the security screen.  She went to check her children and then returned to the front door when she saw you holding the shovel.  That is the subject of Charge 6, assault with a weapon.

9You then went to the other side of the house and began tapping on the laundry window, and said, "I know he's in there."  You went back around to her bedroom window and again attempted to climb in, and that is the subject of Charge 2, attempted aggravated burglary.

10When you tried to climb in the window on that second occasion, it resulted in her television coming off the side bedside table and landing on the floor, causing the screen to break, and that leads to Charge 4 of criminal damage.

11Police arrived and observed you standing outside her bedroom, holding the shovel.  You immediately put the shovel down when you saw the police.  You were arrested and taken to the Lakes Entrance police station where you where you were lodged in the cells, pending interview.  Later you were taken to the Bairnsdale police station where you were interviewed and you made a partial no comment record of interview before admitting you used to shovel to break the bedroom window.  You denied entering the house and stated that you were drug and alcohol affected at the time.  I accept that you were so affected.

12You were held in custody over that evening and then released the following morning, 29 April, having been bailed from Bairnsdale police station.  One of the conditions of that bail was that you do not contact Ms Shaw however immediately upon being released you commenced sending text messages to her.  Those text messages became Exhibit 4.  Now I intend to set them out fully.

13Text message at 8.11 am:  "Is my hat there I'm going back down this way to my other girl."  She responded:  "Don't contact me again leroy fuck right off."  You, three minutes after that initial text, at 8.14, wrote:  "Yeah who is the cunt Becky that's all I ask and you lieing dog ya have rooted around and if you wanted to move on I fuking asked you that and I would of fuk of down that way ages ago."  And at 8.15, the following text:  "I'll find out who it is."  She responds:  "They aint no one else leroy and you can just fuck right off you fucking junkie cunt don't contact me again."  You respond:  "Lieing slut the dog was in the shower before he went in the room who was it that's all I ask and if ya really wanted it over why the fuk did you want me to come back to lakes I could of just stayed down there come back to this."  She responds:  "Please stop contacting me leroy we are over do not come near me your the dumbest junkie I no leave me alone."  You respond at 8.33:  "Is my hat there an your the biggest slut I know  root me then root him, and the next night pffffffff hep".  She responds:  "Fuck off ya dog twisted piece of shit."  Later at 8.17 you further text:  "Hey buddy won't be long an she'll cheat on you that's how she rolls wanna text me when ya not around."  She responds:  "Please stop contacting me leroy we are over do not come near me your the dumbest junkie I no leave me alone."

14That you engaged in the activity the night before with deliberateness over a period of time and as soon as the police arrived, you dropped the shovel, is perturbing.  It is plain from your conduct that you sought to terrorise your victim, your ex-partner, in her own home, when there were no less than three other children in that very premises.  You achieved your purpose.

15Even after overnight reflection, which gave you an opportunity to sober up and having been bailed from the police station, you immediately recommenced your harassment of her.  These are facts which are particularly serious, for it demonstrates your deliberateness, your decision to continue on and the fact that alcohol and drugs seem to provide no explanation for your conduct because you renewed it sober the following morning.

16Women are entitled to feel safe from men such as you after a separation.  It is not for men such as you to think of them as objects that you have some dominion over.  They are entitled to move on with their life, regardless of the thoughts of men such as you.

17This offending is particularly serious because you chose deliberately to go to her home.  You endeavoured to get it.  You failed.  In particular, women are entitled to feel safe in their own home, particularly in circumstances where they have the care of young children as here.

18You come before me with a criminal history of some gravity.  Between 13 April 2007 and 27 January 2016, a little under nine years, you have had no less than 11 court appearances.  You have faced, in those 11 court appearances,
41 offences, 19 of which are offences of violence, or akin to.  They include six charges of recklessly causing injury, one charge of intentionally causing injury, one charge of intentionally cause serious injury, four charges of unlawful assault, one charge of assault with an instrument, three charges of damaging property, one charge of affray and one charge of behaving in a riotous manner.

19You have been dealt with leniently by the courts, receiving on no less than five occasions, community corrections orders and on one occasion, an intensive correction order.  Of those five community corrections orders you breached the first two.  You also breached the intensive corrections order and of the last two community corrections orders, one imposed on 12 August 2015, which had a duration of 18 months, and the other, imposed on 27 January 2016, which had a duration of six months, you have breached both by this offending.

20In particular, the matters you were dealt with at the Bairnsdale Magistrates' Court on 12 August 2015, putting aside motor vehicle offences, included one charge of reckless conduct endangering serious injury, which I believe arose from a police chase, one charge of recklessly cause injury, one charge of intentionally damaged property, two charges of contravening a family violence intervention order, two charges of unlawful assault and one charge of criminal damage.  All, bar that driving matter are of similar ilk to what is before me.

21The fact that you were on two community corrections orders at the time you committed these offences is particularly perturbing.  It would seem that community correction orders and the like are to you but pieces of paper to be breached as you choose.  It is not as if you were not aware of the seriousness of your plight in relation to those orders, for breach proceedings arising from your failure to comply with the conditions of those orders indicate as set out in Exhibit LH8 the following in relation to unpaid community work: 

"Mr Hayes was contracted to attend Lakes Entrance Aboriginal Health Association once a week to complete his community work hours.  His attendance the beginning of the first order was consistent, although as the order progressed Mr Hayes attendance declined rapidly resulting in Mr Hayes accumulating numerous unaccepted absences from the beginning of December 2015. 

Discussions were held with Mr Hayes around his requirements to complete the hours ordered by the case manager, Officer in Charge and also support staff at Lakes Entrance Aboriginal Health Association. 

Mr Hayes completed a total of 38 hours of the 200 hours ordered." 

22As to your supervision, the authors of the report wrote:  

"Mr Hayes attendance to supervision was inconsistent, although his engagement would be noted as satisfactory. 

The case manager discussed with Mr Hayes at the commencement of the order his requirements and regular supervision to monitor compliance and implement the case plan created.  Highlighted in the case plan signed by Mr Hayes, is ‘clear problems with compliance’ and this was confirmed to be applied through weekly supervision appointments. 

Following December 2015 Mr Hayes attended Bairnsdale Community Correction Service on one occasion in January 2016.  The next time Mr Hayes engaged with Community Correctional Service was on 24.02.2016 with the Aboriginal Community Correction Officer at the Lakes Entrance reporting location.  Mr Hayes attended the reporting location on 3 further occasions as directed with last attendance on 6.04.2016." 

23In relation to the treatment and rehabilitation, the report continues:

"Mr Hayes attended his drug and alcohol assessment and was recommended for further treatment.  Mr Hayes is noted to have attended drug and alcohol counselling sporadically.  A referral of offending behaviour programs was completed by the case manager at the commencement of the order.  Mr Hayes was later contacted to attend the YMCA bridge program.  This was due to be held in Bairnsdale."

24The reports from the facilitators were that :

"Mr Hayes was actively engaged throughout the program and noted to successfully complete the requirements."

25Mr Hayes attended the first scheduled judicial monitory hearing on 9 November 2015.  The report on that occasion read positive, with a further hearing date set in February 2016.  Due to further police contact and alleged further offending there were no further judicial monitory hearings scheduled.  In the conclusion and recommendation part of the report, the authors continue:

"Mr Hayes has received a plethora of opportunities by Bairnsdale Community Correctional Services to take ownership of his Community Correction Order and re-engage, but he has failed to do so.  This has been demonstrated through further offending being dealt with by the Officer in Charge through an internal process. 

Mr Hayes consented to the making of the Order at the Bairnsdale Magistrates' Court on 12.08.2015 and at the time of induction presented as willing to engage in the conditions of his Community Correction Order.

It is also noted that this was reinforced to Mr Hayes upon attendance at Bairnsdale Magistrates' Court on 27.01.2016 where Mr Hayes was convicted of further offending and placed on an Order to run cumulatively. 

It is of concern to Corrections Victoria that the further offences that Mr Hayes has allegedly committed demonstrate a level of violence that would suggest he is an unacceptable risk to the community, and some consideration would need to be given before finding Mr Hayes suitable for any further community based positions at this time. 

It is respectfully recommended that both of Mr Hayes' Community Correction Orders be cancelled and Mr Hayes be re-sentenced on the original offences, taken into account the 162 hours of community work Mr Hayes has outstanding.”

26As I understand it those proceedings have not been completed.

27The point I am endeavouring to make is that you had available to you what you needed to assist you in your rehabilitation.  You chose to instead to commit these offences, which are by far graver than any offences you have previously been dealt with, this being your first appearance in the County Court.

28In a most helpful psychological report prepared by psychologist David Ball, dated 6 October 2016, which became Exhibit LH1, Mr Ball sets out your background, which I will use in part, though I have carefully read everything that Mr Ball has written.  As to psychometric assessment, Mr Ball notes:

"Mr Hayes had insufficient literacy and numeracy to attempt any of the psychometric personality instruments at my disposal. 

Accordingly, this assessment is based on clinical interview, intelligence testing and the documentation outlined above. 

29Intelligence testing results indicated to Mr Ball that your verbal comprehension index, 66; perceptual reasoning index, 82 and full scale IQ of 71."

30These matters are dealt with in more detail later in the report and I will go to them in due course.  Mr Ball noted that you were a 28 year old Aboriginal Australian man of the Kurnai country.  You told him that you had been employed in prison packing boxes and you participated in a number of vocational orientation programs, which were tendered as Exhibit LH6.  Mr Ball states in his report:

"He said he has contact with other Koori inmates and that he is not experiencing any bullying or harassment from fellow inmates or prison staff and denied any disciplinary problems."

31As to your mental state examination, Mr Ball states:

"There was no evidence of thought disorder in form or content in clinical interview." 

32And then a little later:

"Mr Hayes impressed me as a low functioning and somewhat dependant man with limited capacity to exercise quick judgment.  He possess little insight into his alleged offending and his own psychological functioning.  He presented with a history of substance addiction, failing to plan and execute positive and self-sustaining behaviour and living on the fringes of the community.  However, he added that this was his first experience of gaol and was keen to avoid repeating this."

33As to your personal history, Mr Ball records:

"Mr Hayes said that he was one of three siblings with two sisters.  He described and disengaged family of origin and added, 'They didn't really care'.  He said that he didn't know his biological father but that his mother re-partnered and that his stepfather effectively raised him as his own.  He said that he enjoyed a largely constructive relationship with his step-father and added that his mother and step-father remain together.  He reported no criminality, domestic violence or substance abuse among family members during his formative years."

34As to your employment history and educational qualifications, Mr Ball stated:

"Mr Hayes reported attending school to year ten level and described having difficulties throughout.  He said, 'I didn't feel like I fitted in, like I wasn't good enough.'  He said that he struggled with the curriculum and had few friends but only reported minor difficulties with discipline."

35Mr Ball continued:

Mr Hayes reported a minimal employment history in typically unskilled positions.  He said he had been unemployed for ‘a long time’.

36As to relationship history, Mr Ball recorded:

"Mr Hayes described two significant intimate relationships.  He said that he has three children in common with his first partner and that his second partner had three children from a previous relationship.  He said that his relationship with his second partner (victim in this matter) has ended.  He said that his relationship was mutually violent and drug affected and that on one occasion, his former partner stabbed him in the abdomen.  Notably, this is confirmed in his hospital records.  He said that he currently considers himself to be single and unattached and wants no further contact with his former partner."

37As to drug and alcohol history, Mr Ball records:

"Mr Hayes said he commenced using alcohol around the age of 16 and described hazardous levels of consumption on a regular basis.  He acknowledged using cannabis from the age of 16 and methylamphetamine over the last year.  He acknowledged the negative impacts of his substance use and said, 'Alcohol in particular is a big problem for me then I do shit I really regret.  Then I feel like harming myself to deal with it or drinking more.'"

38As to his current situation, and Mr Ball noted:

"Mr Hayes primarily explained his offending in the context of alcohol abuse.  He said that he was affected by alcohol and methylamphetamine at the time of his offending.  He said, 'Drugs and alcohol; it takes over and now it's ended me up in here and I've got no-one to blame but myself.  I went to my girlfriend's house drug and alcohol affected and scared her and her kids, acting like a fuckhead which I can't stop thinking about.  How could I do it to her and the kids?  I feel really bad about it.  It's something I had no right in doing.'

Mr Hayes expressed regret and remorse for his actions and said, 'I am very sorry for what I have done to scare youse like that.  You know I care for you all a lot, so yeah, from the bottom of my heart I'm sorry.'"

39Mr Ball then went to his professional opinion and stated:

"Mr Hayes' social reasoning reflects his persisting independent and antisocial personality features and markedly dull intellect.  His social reasoning is unsophisticated and he tends to reduce even complex problems to simplicity concrete terms.  As a result, he considers only a small number of options and rapidly forecloses on a solution without exploring either a comprehensive set of alternatives or giving sufficient time for the implications of a course of action to come to mind.  

Therefore, Mr Hayes tends to be impulsive.  He often makes poor decisions and frequently chooses his course of action based on short-term considerations rather than on their long-term consequences.  He learns poorly and slowly from negative consequences and has a history of long-term drug and alcohol abuse. 

As stated above, Mr Hayes suffers a raft of dependant and antisocial personality features.  He operates on the assumption that he is not capable of taking care of himself and must find someone dependable who will support and protect him.  He feels inadequate and insecure most of the time and sees himself as being less effective or able then everybody else."

40As to anger management, Mr Ball states:

"I could find no evidence of explosive violence, episodic dyscontrol or intermittent explosive disorder in Mr Hayes' history, clinical interview or intelligence testing.  He was able to articulate sound but simplistic anger management strategies such as avoiding or leaving situations or people that might make him angry.  He said that he is able to calm himself with positive self-talk and distracting himself with pleasant activities.  He readily acknowledged that his anger management strategies immediately evaporate when affected by drugs or alcohol."

41Mr Ball then deals with the intelligence testing, noting that:

"His full scale IQ falls in the 3rd percentile meaning 97 per cent of the population would perform better on these tests than Mr Hayes. 

In terms of intellectual impairment, Mr Hayes presents as a functionally illiterate, innumerate and as a generally low functioning adult, I consider his impairment to be congenital rather than acquired.  His intellectual impairment has been, and will continue to be, lifelong.  I confirm that he must have been affected by his intellectual impairment and the dependant and antisocial features of his personality at the time of his offending.  His intellectual impairment will not remit.  His dependant and antisocial personality features, while not necessary lifelong, remain operative and require long-term treatment and management.  I do not consider comprehensive neuropsychological assessment to be warranted."

42I have quoted extensively from Mr Ball's report, for it is a comprehensive and most useful report.  It is submitted by Ms Webster that Verdins principles are applicable in this case, there being a nexus between his intellectual function and his poor ability to make decisions and lack of appreciation of negative consequences, such that his moral culpability for this offending is reduced. I reject that submission.

43As is plain from Mr Ball's assessment and statements made to Mr Ball, you understand the nexus between your alcohol and drug abuse and your potential for violence.  It was your choice to become intoxicated.  It was your choice to go to the premises.  It was your choice to engage in the sustained behaviour that you engaged in.  You only stopped, significantly, when the police arrived.  You knew what the problem was yourself.  You chose to start and when circumstances changed you made an entirely sensible, rational and considered decision to immediately stop when the police arrived to drop the shovel.  But more than this, it cannot be said in this case that your conduct was in any way explained by your alcohol and drug affected condition on the evening.  For the following morning, having sobered up in the cells, you recommenced your abusive and harassing contact on the same topic with your victim in breach of the conditions of the bail that you had just entered.

44I therefore reject the submission made by Ms Webster in relation to the applicability of principles articulated in Verdins.

45Although I disagree with that aspect of Mr Ball’s report, I do, accept all other aspects of the report in relation to this offending.  I do accept that your regret and remorse, as expressed to Mr Ball, was genuine.  Further, you have pleaded guilty at the earliest possible time to these offences and I accept that as further evidence of your remorse.  As well as taking that matter into account, in terms of its utility, sparing in particular, your victim, your ex-partner, from having to give evidence at the committal hearing and in this court.  Because of your pleas you have also saved the time and cost of those legal proceedings.

46Despite what I have said about your failures in relation to complying with the two community corrections orders which were extant at the time of this offending it was not as if you have not endeavoured to address matters that you recognise as being of concern to yourself.

47You have voluntarily submitted yourself to the St Vincent's Hospital Alcohol and Drug Withdrawal Unit, being admitted to De Paul House on 22 April 2015 and discharged the 29th of that month.  The purpose of that period of withdrawal was for you to be detoxed so that you could then immediately commence an approximately four-month period as an inpatient with the Galiamble Men's Residential Centre in St Kilda.  Upon your discharge from St Vincent's Hospital you immediately entered into that centre's program from 29 April 2015 but left on 21 July 2015, though you were due to complete the program on 19 August.  The reason why you left was because of your mother's chronic medical condition and I accept that you did so in order to tend to her, not because you simply wished to leave.  It is to your credit that you took that action to assist yourself in dealing with your poly-substance drug abuse.

48Whilst in gaol you have engaged in work packing boxes, working as a billet, completing three programs as attested by Exhibit LH6 and attending the gym daily.  You have made one suicide attempt but were found by a cellmate.  You have an additional burden in your imprisonment.  That being the combined fact of your concerns for your mother and her condition in the context where since your imprisonment she has the custody of your three children from your first partner.

49Ms Webster tendered an additional report dated 15 August 2016, which became Exhibit LH5.  In the subsequent report of Dr Patrick Kinsella, dated 9 January 2017 which became Exhibit LH9, in the original report, he stated:

"Ms Hayes is the mother of Leroy Hayes.  She is suffering from severe late stage COAD.  Despite her illness and frequent hospitalisations she cares for Leroy's three child [Leroy, Telara and Destiny]." 

50As I understand it, COAD is a chronic lung disease.  The report of January this year adds to an understanding of her the terminal condition that she suffers from:

"Fiona Hayes suffers from end stage Chronic Lung Disease and has required hospitalisation on at least 6 occasions in the past year, including spells on a ventilator. 

Fiona is physically not fit enough to care for these 3 children although she continues to be their primary carer."

51Thus, in prison, you have those concerns, not only as a son but as a father and I accept that in those circumstances prison is more burdensome for you than others in similar circumstances to you in the prison population.

52I have stated that I do not consider the principles articulated in Verdins to be relevant in this case.  However, that is not the end of the matter.  I am satisfied that because of the matters stated by Mr Ball as to your level of intellectual functioning and thought processing that you are person less suitable as a vehicle for general deterrence, that is deterring others from acting in the despicable way that you did.

53Your aims for the future are to finish your prison term and look after your children and hopefully, but unlikely, your mother and to obtain employment, possibly as a landscaper and do whatever courses in trades that would better you.

54I am satisfied that since your incarceration you have indeed reflected upon your life up to this point and have an insight into how drugs and alcohol have caused you to come into contact with the criminal justice system and affected other aspects of your life.

55Despite your lengthy criminal history if, when you are released from prison, you do not in any way use drugs or drink alcohol, your prospects of rehabilitation are reasonable.  If you continue on in your way of life as before and fall back into drug and alcohol use, I have no doubt that you will be before the courts once again and be sentenced to even longer periods of imprisonment.

56There is a need in the sentences that I impose not only to deter you but also, because of the persistent nature of your offending, protection of the community is a matter that I must take into account.  Your despicable conduct must be denounced. 

57I have given anxious consideration to what in total must be the appropriate sentences, in particular to ensure that not only is the totality principle observed and acted upon but also to ensure that there is no aspect of double punishment in the sentences that I impose.

58Stand, Mr Hayes.  On Charge 1, using a carriage service to menace, harass or cause offence, I sentence you to be imprisoned for a period of six months.  That sentence will commence four years from today's date, on 9 February 2021.  On State Charges 2, 3 and 4, I sentence you to an aggregate sentence of four years' imprisonment.  That is the base sentence.  On summary, those charges being attempted aggravated burglary and two charges of criminal damage.

59On summary Charge 5 of unlawful assault, I sentence you to be imprisoned for one month.  On summary Charge 6, unlawful assault with a weapon, I sentence you to be imprisoned for a period of six months.  On summary Charge 8, I sentence you to be imprisoned for a period of one month.

60I direct that one month of the summary Charge 5 be served cumulatively upon the aggregate sentence of four years.  I direct that two months of the sentence on summary Charge 6 be served cumulatively on Charge 2, 3, 4 and 5 and I direct that the sentence of one month on summary Charge 8 be cumulative upon the aggregate sentence on Charge 2, 3, 4 and summary Charges 5 and 6.

61That produces on the State sentences a total effective sentence of four years and four months.  Having indicated that the sentence on the Commonwealth charge, Charge 1 on indictment, commences four years from today's date, that means that there will be an additional two months served on that sentence bringing the total effective sentence of four and a half years.

62I set a minimum non parole period of three years.  I state that but for your pleas of guilty I would have imposed a sentence of six years with a minimum of four and a half years and I state that pre-sentence detention is 287 days excluding today.  Take a seat, Mr Hayes.  Take a seat.

63My aim is, as I have stated, to achieve a sentence of four and a half years, I believe I have achieved that with the order for commencing the six month sentence on the Commonwealth charge four years from today's date achieves that by elongating the total State sentences by two months from four years, four months to four years, six months.  Is there any suggestion that I have got that wrong?

64MR BOYD-WILSON:  Sir, can I just check the non-parole period?

65HIS HONOUR:  Three years.  Have I achieved what I seek to achieve?  I think I have.  As with all Commonwealth sentencing, if there is found later to be an error in it, I have approximately a month to make any correction to the sentencing orders to achieve my purpose.  So, if later on it is thought that I have made an error, simply make contact with Mr Brown and the matter will be revisited.

66MR BOYD-WILSON:  Yes, your Honour.

67HIS HONOUR:  Is there anything further?  Yes, Mr Boyd-Wilson?

68MR BOYD-WILSON:  It's just the compensation orders, Your Honour, that are sought.

69HIS HONOUR:  Is there anything you wish to say about those matters,
Ms Webster?

70MS WEBSTER:  Other than Mr Hayes is going to be in custody for some time further, Your Honour, and upon his release won't be in immediate employment.  His position to pay might be impacted but it's a matter for Your Honour.

71HIS HONOUR:  Yes, I had a similar situation yesterday.

72MS WEBSTER:  Yes, your Honour.

73HIS HONOUR:  I declined to make the order in those circumstances for much the same reason so I will not make the order because I think it's futile.

74MR BOYD-WILSON:  As Your Honour pleases.

75MS WEBSTER:  As Your Honour pleases.

76HIS HONOUR:  If there are any factual or other errors that counsel wish to raise now I will give you the opportunity now or if there are matters of small moment contact Mr Brown and when I revise the sentence I'll make those corrections.  But is there anything at this stage?

77MR BOYD-WILSON:  No, your Honour.

78MS WEBSTER:  No, your Honour.

79HIS HONOUR:  Thank you.  Remove Mr Hayes please.

80MS WEBSTER:  Sorry, Your Honour, there is just one matter.

81HIS HONOUR:  Yes.

82MS WEBSTER:  I know that Mr Hayes has just been removed but with the commencement date of four years from today for the Federal sentence, but a non-parole period being set of three years, would the effect of that be that Mr Hayes would be eligible for parole ‑ ‑ ‑

83HIS HONOUR:  Correct.

84MS WEBSTER:  ‑ ‑ ‑ in three years but he wouldn't get parole until - because that ‑ ‑ ‑

85HIS HONOUR:  No, no, no.  The non-parole period, only one parole period can be set even where there is combined Commonwealth and State offence.  When he's eligible for parole after three years, less the pre-sentence detention, then that's a matter for the Parole Board.  All that I've achieved there with the four years for the commencement of the Commonwealth sentence is to elongate the head sentence.  That doesn't mean that he has to wait for the head sentence in the Commonwealth part of it to be complete.  That's completely irrelevant to the non-parole period.

86So that's simply how I've constructed and arrived at the head sentence.  Then after three years, less his pre-sentence detention, he's eligible for parole.  What the Parole Board does or doesn't do is a matter for them.

87MS WEBSTER:  Yes.

88HIS HONOUR:  But no, it does not and if it does tell me.

89MS WEBSTER:  Yes.

90HIS HONOUR:  If it does that would be a disaster.

91MS WEBSTER:  Thank you, Your Honour.

92MR BOYD-WILSON:  Your Honour, I've been thinking the same issues myself.  Does Your Honour have a copy of the federal sentencing and document that was  ‑ ‑ ‑ 

93HIS HONOUR:  No, not at the moment.

94MR BOYD-WILSON:  I could hand Your Honour the copy that I've been looking at.

95HIS HONOUR:  I think we better get Mr Hayes back up.  Show me it and I'll revisit these things.

96MR BOYD-WILSON:  Just the example that's given at paragraph 393 there, Your Honour.  It's certainly assisted me, I thought, in understanding it.

97HIS HONOUR:  Why do they make it so small?

98MR BOYD-WILSON:  That was probably my - trying to save paper in printing it, Your Honour.

99HIS HONOUR:  Take a seat and I'll see what I've got.  Take a seat, Mr Hayes.  There's an issue that's arisen about a technical aspect to the Commonwealth sentence.  I note in that document, Federal Sentencing Victoria, paragraph 392, I'm reading from about half way down.  It reads - have you got it in electric form there?

100MR BOYD-WILSON:  Yes, your Honour.

101HIS HONOUR: 

"If a non-parole period applies in respect of a State sentence and the court wishes to impose a Federal sentence, which is cumulative on that State sentence, the court cannot order the Federal sentence to commence later than the expiration of the State non parole period." 

102Which is what I've just done.

103MR BOYD-WILSON:  Yes, your Honour.  My understanding from the tutorial that Ms Falla gave me yesterday following court, and looking at this portion is that the start - and the start date of the sentence for Charge 1 will need to be done in reference of the date where the non-parole period on the State charges would end.

104HIS HONOUR:  So, if I change the order in which these sentences commence so that the Commonwealth sentence on Charge 1 commences today and the State sentences commence two months from today.  Then ‑ ‑ ‑

105MR BOYD-WILSON:  My understanding, Your Honour - sorry for interrupting ‑ ‑ ‑

106HIS HONOUR:  You tell me how you think I can achieve what I want to do.

107MR BOYD-WILSON:  I think you can achieve what you want to do, Your Honour, by imposing the State sentences as you were intending to originally, taking into account the pre-sentence detention.  That sentence effectively starts back on 28 April 2016, so that's when the time for that non parole period ‑ ‑ ‑

108HIS HONOUR:  Start that again.  Yes.  I'll do what I've done with the State sentences and then, what do you say I should do?

109MR BOYD-WILSON:  So, looking at taking into account the pre-sentence detention, the three year non-parole period would effectively end three years from 28 April last year when Mr Hayes was first in custody.  So that would end on 27 April 2019.  Then have the six month sentence on Charge 1, the Federal charge and if Your Honour intended to make two months of that cumulative, in my submission the start date for that needs to be taken back four months prior to the end of that non parole period, so that at the end of that non parole period, there's still a further two months to serve of that Federal sentence and that seems to be the way it's given an example for there just below ‑ ‑ ‑

110HIS HONOUR:  Well, you're going to have to take me through this again,
Mr Boyd-Wilson, because - so, State sentences and that's four years, four months?

111MR BOYD-WILSON:  Four months in total.

112HIS HONOUR:  Yes.  And the next step?

113MR BOYD-WILSON:  There's the pre-sentence detention.

114HIS HONOUR:  Yes, PSD of, what was that again?

115MR BOYD-WILSON:  287 which takes us back to 28 April 2016, which was the day Mr Hayes first went into custody.

116HIS HONOUR:  Yes.

117MR BOYD-WILSON:  So, with a three year non-parole period, that would expire three years from 28 April 2016, which would be 27 April 2019. 

118HIS HONOUR:  27 April?

119MR BOYD-WILSON:  Sort of the day before that.

120HIS HONOUR:  Yes.

121MR BOYD-WILSON:  Then with the six month sentence on Charge 1, if Your Honour intends to make two months of that cumulative, in my submission that the start date that has to be given for that is four months before the end of the non-parole period.  So that effectively four months of that six has been done concurrent with that non parole period and then it leaves the two remaining months to carry on after the non-parole periods finished.

122HIS HONOUR:  But that doesn't achieve me getting a four and half years period of imprisonment as a head sentence.

123MS WEBSTER:  It adds it to the non-parole period, Your Honour.

124HIS HONOUR:  Yes, it adds to the non-parole period.

125MR BOYD-WILSON:  Your Honour, I'm not ‑ ‑ ‑

126HIS HONOUR:  I'm not sure that's right.  I'm not sure when I said ‑ ‑ ‑

127MR BOYD-WILSON:  I may well have hear wrong.

128HIS HONOUR:  ‑ ‑ ‑ with some certainty there does not need to be two non-parole periods.  Am I right or wrong about that?

129MR BOYD-WILSON:  I think that's right, your Honour, and because the Federal sentence's six months or less, you don't need a reconnaissance order or anything like that for it.  I think the problem is ‑ ‑ ‑

130HIS HONOUR:  I think what I'm going to do is, I will not make any formal orders.  I will simply remand Mr Hayes in custody until tomorrow and parties can look to it and I'll speak with some others in court about it.

131MR BOYD-WILSON:  I think ‑ ‑ ‑

132HIS HONOUR:   It should be so easy but anyway.

133MR BOYD-WILSON:  It should be, Your Honour.  I think that the problem with the current situation is it does seem to go against what the passage Your Honour cited at paragraph 392, whether the commencement of the Federal sentence will be after the expiration of the State non parole period.

134HIS HONOUR:  I think, from reading here, I know I can commence the Federal sentence today or tomorrow.  I’d then change of course the pre-sentence detention to add on the date.

135MR BOYD-WILSON:  Yes, your Honour.

136HIS HONOUR:  I know I can do that.

137MR BOYD-WILSON:  Yes.

138HIS HONOUR:  I believe I can also date in the future the commencement of the State sentences, which could be two months from today, which would achieve the four and half years and then set the minimum three year non-parole period.  But it's not easy.

139MR BOYD-WILSON:  No, your Honour.

140HIS HONOUR:  I think that rather then - see if we can be - I think it's better to give the parties and I'll also make some enquires myself about what to do.

141MR BOYD-WILSON:  Yes, your Honour.

142HIS HONOUR:  I will not make any formal order today and I will simply remand Mr Hayes in custody until 10.30 tomorrow morning.  Mr Hayes, I'm sorry about this.  There's some complications about how to achieve what I want to achieve, which is you to serve four and a half years with a minimum non parole period of three years less both, on the four and a half years and on the three years, the period of time that you've been in custody.  And I'm not sure that I've achieved that because of complications.  I'll see you tomorrow morning.  That will be the end result so you know your fate, but it's just ensuring that what I want to do is going to be achieved.  All right, yes, you can remove Mr Hayes please.  If Mr Hayes - Mr Hayes, do you want to appear by video link tomorrow?

143OFFENDER:  Yeah.

144HIS HONOUR:  All right, that'll be arranged.

145MS WEBSTER:  Thank you.

146HIS HONOUR:  If that's all right with you, Ms Webster.

147MS WEBSTER:  Yes, thank you.

148HIS HONOUR:  And are you available, Ms Webster?

149MS WEBSTER:  I am briefed in another matter that's in Melbourne, it's not part heard or anything of the like ‑ ‑ ‑

150HIS HONOUR:  Which court?

151MS WEBSTER:  In the Melbourne Children's Court, Your Honour.

152HIS HONOUR:  You contact them and say that I need you.

153MS WEBSTER:  Yes.

154HIS HONOUR:  Ask them to stand your matter down.

155MS WEBSTER:  Very well.

156HIS HONOUR:  I accommodate all judicial officers as they almost invariably accommodate me.

157MS WEBSTER:  I understand, Your Honour.

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