Director of Public Prosecutions v Heywood
[2017] VCC 1016
•28 July 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-17-00488
CR-17-00489
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SAMUEL HEYWOOD |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 July 2017 | |
DATE OF SENTENCE: | 28 July 2017 | |
CASE MAY BE CITED AS: | Director of Public Prosecutions v Heywood | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1016 | |
REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited: Drugs, Poisons & Controlled Substances Act 1981; Sentencing Act 1991; Crimes Act 1958
Cases Cited:Boulton & Ors v R (2014) 46 VR 308; R v Mills (1998) 4 VR 235; Pitone v R [2017] VSCA 3; Azzopardi & Ors v R (2011) 35 VR 43
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Ms K. Churchill | Office of Public Prosecutions |
| For the Accused | Mr S. Kennedy | Tait Lawyers |
HER HONOUR:
1 Samuel Heywood, you have pleaded guilty to one charge of armed robbery, one charge of reckless conduct endangering serious injury, one charge of obtaining property by deception, two charges of handle stolen goods and two charges of theft.
2 The maximum penalties applicable to those charges are armed robbery, 25 years’ imprisonment, reckless conduct endangering serious injury, 5 years’ imprisonment, obtaining property by deception and theft 10 years’ imprisonment and handle stolen goods, 15 years’ imprisonment.
3 You have pursuant to s.145 Criminal Procedure Act 2009 also agreed to me hearing and sentencing you on three summary charges, being summary Charges 21 and 50, leaving the scene of an accident, the maximum penalty applicable 5 penalty units or up to 14 days’ imprisonment for a first offence (Charge 21) and 10 penalty units or between 14 days and 1 month for a subsequent offence (Charge 50). Charge 38 careless driving, the maximum penalty applicable is 12 penalty units for a first offence and 25 penalty units for a subsequent offence. This is a first offence.
4 Your crimes arise out of events which occurred between 27 May 2016 and 14 June 2016, on a number of different dates when you were 23 years of age. It is not necessary for me to recount in great detail the facts of this matter as they are on transcript, the matter having been opened in some detail by the learned prosecutor. I proceed to sentence you on the basis of the facts as summarised by the prosecutor and discussed during the course of the plea hearing. It is sufficient for present purposes to simply say the facts in this case are most serious and disturbing and you also have a relevant and extensive criminal history to which I shall later refer.
5 I turn to a summary of your offending.
6 Shortly after 8.00am on 27 May 2016, you purchased a packet of cigarettes and a box of 24 cans of Coke Zero from Maxi Foods in La Trobe Street, Ballarat. You made that purchase with a stolen bankcard and were captured on CCTV. Approximately 10 minutes later you purchased more cigarettes, drinks, food and Castrol oil from the BP service station also on La Trobe Street, Ballarat, and again using that stolen credit card. You were again captured on CCTV (Charges 1 and 2).
7 At approximately 1.00am on 30 May 2016, you drove a blue Mitsubishi Magna displaying false registration plates through a fence at the Mount Pleasant Primary School on Cobden Street, Ballarat East. When police arrived you had left the scene. Your mobile phone, however, was located on the floor under the steering wheel and your fingerprints located on the driver’s side (Summary Charge 21, leaving the scene of an accident). Inside the vehicle, police located a number of stolen items as set out within the prosecution opening (paragraph 3). Those items had been stolen from various owners in preceding days, and are relevant to Charge 3, handle stolen goods. Charge 3 is a rolled-up charge.
8 On the afternoon of 4 June 2016, police saw you reversing a maroon Ford Territory, registration AAA616, out of a driveway in York Street, Ballarat. That vehicle had been stolen from an address in Delacombe at approximately 4.30am that day (Charge 4, theft). Charge 4 is also a rolled-up charge.
9 A police member confronted you and directed you to stop the vehicle. However, you drove towards that officer. Believing he was not able to get out of the way in time, the officer drew his firearm and you briefly stopped the car. The officer then holstered his firearm and approached the vehicle. You then drove away erratically (Charge 6, reckless conduct endangering serious injury).
10 As you drove rapidly along York Street you collided with a car travelling east driven by Stephen Dean and caused extensive damage to the rear left hand side of that vehicle (Summary Charge 38, careless driving).
11 As you left the York Street driveway, a number of items in the Ford Territory fell from the rear of the car onto the ground. Police located a laser level, electrical equipment and various power tools and hand tools, as well as a digital camera and PS4 games and papers in the name of Peter Tucker. Those items had been stolen in a burglary several days prior. These items are also part of Charge 3, handle stolen goods (a rolled-up charge).
12 On 7 June 2016, at 10.36pm, you drove to the BP service station on Sturt Street, Alfredton in a silver Ford Focus stolen from Delacombe on 4 June 2016, the same time the Ford Territory was stolen (Charge 4, part of the theft charge, a rolled-up charge). The car was bearing a stolen number plate on the front, ZEF 926, and a stolen number plate NVE 431 on the rear (relevant also to Charge 3, handle stolen goods, a rolled-up charge).
13 An unknown female passenger filled the vehicle with petrol valued at $54.96 and returned to the car. You then drove off towards Gillies Street, Alfredton without making any attempt to pay for the petrol (relevant to Charge 5, theft, a rolled-up charge).
14 At 9.45am on 8 June 2016, you drove to the BP service station on Creswick Road, Ballarat in the stolen Ford Focus and filled the vehicle with $55.95 worth of petrol before driving off along Creswick Road, Ballarat. You did not make any attempt to pay for the fuel (Charge 5, theft, a rolled-up charge).
15 At 5.00pm, police were called to a single car roll-over in Fussell Street, Ballarat. On arrival they found the stolen Ford Focus bearing a false number plate XXQ 855 (part of Charge 3, handle stolen goods, a rolled-up charge). You had been driving the vehicle and with an unknown female passenger left the scene before police arrived (Summary Charge 50, leaving the scene of an accident).
16 At approximately 3.20 am on 13 June 2016, Daniel Tinker was walking home from Faux Bar along Mair Street, Ballarat. He turned into Peel Street and as he passed the football oval, a silver sedan drove past, did a U-turn and pulled up next to him. You yelled out from the passenger window, “Why are you looking at me so funny?” Tinker responded, “I wasn’t looking at you, I am just walking home.” You got out of the vehicle holding a 50-60 centimetre crowbar. Tinker ran down Peel Street and turned into Rose Street before hiding in a driveway at a residential address. You, however, were not deterred.
17 You pulled up into the driveway in the silver vehicle and again got out of the vehicle armed with the crowbar. You asked Tinker what he had on him and you were told he did not have any money. Tinker handed over his wallet and was threatened with the crowbar as you demanded his phone, which he also gave up in fear of being hit (Charge 7, armed robbery).
18 As Tinker walked out of the driveway, your car again pulled up beside him and you asked him for the PIN code to the phone which he provided and you then drove away.
19 On 14 June 2016, police searched your 1996 grey Toyota Camry at Werribee Plaza car park. That vehicle was bearing the stolen registration plates QZH 970. Inside the vehicle were three other sets of stolen registration plates, as per paragraph 15 of Exhibit A. All had been stolen in the preceding days (Charge 3, handle stolen goods, a rolled-up charge).
20 On 15 June 2016, police arrested you at Bell Post Hill in the company of two co-accused. You were in possession of a black iPhone 4S taken from Tinker in the armed robbery. In your vehicle, the grey Toyota Camry, there was a crowbar and personal cards in the name of Tinker.
21 Also in the vehicle was assorted new clothing with tags attached, that property having been stolen from Rebel Sport in Geelong (that being also part of Charge 3, handle stolen goods, a rolled-up charge).
22 You have pleaded guilty to these charges and you are entitled to have that fact taken into account in your favour and I do so. The community, by your pleas of guilty has been spared the time and cost of a trial and witnesses have not been required to give evidence upon your trial. I set out a brief chronology relevant to your plea of guilty (Exhibit B).
23 Your offending occurred between 27 May and 14 June 2016. You were charged on 16 June 2016, then refused bail on 8 July 2016. There was a committal mention on 22 September 2016 and a further refusal of bail on 30 November 2016. The matter resolved at committal on 14 March 2017 before any witnesses were required to be called and the matter was then listed for a plea hearing on 19 July 2017.
24 As at 18 July 2017 you had spent 399 days in custody by way of pre-sentence detention.
25 At the time you were interviewed by police you exercised your right to not answer their questions.
26 You have admitted a prior criminal history which is both extensive and relevant, commencing with appearances in the Children’s Court and most recently at Ballarat Magistrates’ Court on 16 November 2104. Your first appearance was at Ballarat Children’s Court in 2009 for driving offences. Without conviction you were released upon entering an accountable undertaking commencing on that date for a period of six months with the condition you be of good behaviour and attend a road trauma course.
27 You next appeared at Ballarat Children’s Court on 14 September 2009 on a charge of recklessly causing injury, theft from a motor vehicle and dishonesty offences and without conviction you were released on entering an undertaking from that date to 30 June 2010, again with a condition you be of good behaviour and at that time to continue to engage with the Start Over program.
28 You next appeared at Ballarat Children’s Court on 18 October 2010 on a charge of dealing with property suspected of being the proceeds of crime and without conviction, again on an undertaking for a period on that occasion for six months, to be of good behaviour.
29 On 23 April 2012 at Ballarat Magistrates’ Court, you appeared on a charge of recklessly causing injury and you were convicted and placed on a Community Correction Order for eight months. There was a community work component as well as treatment directed.
30 On 20 November 2012, you were breached for contravening that Community Correction Order and in relation to the charge of recklessly causing injury were with conviction fined $1,250.
31 You next appeared at Ballarat Magistrates’ Court on 31 October 2013 on an assault police charge, resist police, behaving in an offensive manner, recklessly cause injury and criminal damage. You were then convicted and placed on another Community Correction Order for a period of 12 months with unpaid community work and other conditions for treatment. You were then dealt with on 21 October 2014 for a breach of that Community Correction Order and were re-sentenced to an aggregate 2 months’ imprisonment. On that same date, you were also sentenced on a number of dishonesty offences including obtaining property and financial advantage by deception, intentionally cause injury, criminal damage and other offences for which you were sentenced to an aggregate 20 months’ imprisonment. The two months you were sentenced for contravening the Community Correction Order was concurrent with that 20 months sentence.
32 Your next court appearance was on 6 November 2014, again for dishonesty offences and you were sentenced to an aggregate two months’ imprisonment to be served concurrently, as I said, with that 20 months sentence.
33 You were released most recently from the 20 month sentence on 10 April 2016. Just months later you commenced your offending before me, which occurred, as I have said over a number of different dates.
34 Regarding your prior criminal history, I discussed that at some length with your counsel, Mr Kennedy. It is a very troubling criminal history for someone so young. I note also that you have twice contravened Community Correction Orders imposed relatively recently. You were also most recently released from a gaol sentence on 10 April 2016 and shortly thereafter committed the offences that commenced on 27 May 2016 before me. That is, you were in the community for only approximately six weeks before you committed these current offences and relapsed into methamphetamine use. This causes me concern when assessing your rehabilitation prospects. You obviously still have a long way to go before your rehabilitation prospects can be considered good.
35 As I have previously stated charges 3, 4 and 5 are ‘rolled-up charges’ and as such R v Jones[1] provides guidance as to the nature and rationale of a ‘rolled-up charge’. In so sentencing a judge can sentence for the totality of the offending, but subject to the maximum sentence for any charge. The court is entitled to impose a sentence that reflects each of the individual offences incorporated in a rolled-up charge. The decision of Jones was affirmed in Beary[2] and Balassis[3].
[1] [2004] VSCA 68
[2] (2004) 11 VR 151
[3] [2010] VSCA 296
36 Also before me was a report prepared by Dr Adam Deacon, Consultant Psychiatrist, dated 27 April 2017, who interviewed you on 24 April 2017 whilst you were on remand for these charges.
37 Details were provided regarding your background and history. You are currently 24 years of age, and at the time of this offending had been living in Ballarat with friends (it seems approximately six weeks), following your release from the 20 month custodial sentence. You had not been employed for a few years, receiving Centrelink payments.
38 You were raised in Ballarat. Your mother was heroin-dependent and unable to provide quality care. I understand from your counsel, Mr Kennedy, she was recently undergoing some further detoxification. She had been diagnosed with bipolar disorder and anxiety. One of her partners sexually abused you when you were 6/7 years old. You were also exposed to domestic violence between your mother and her partners.
39 You lived with your mother until you were 7, then went to live with your father until you were 14. You enjoyed living with your father on a rural property but left him because you did not have a good relationship with your stepmother. You then lived intermittently with your maternal grandmother and a friend. Your father has now separated from that lady and you have expressed a desire to live with him again.
40 You rarely attended school until you were 7, although you ultimately completed Year 8 at Ararat Community College. You said that you often fought with peers and did not perform well in class, however, enjoyed maths and science. Your interests were limited to computer games. You later completed Year 11 at the Ballarat Learning Exchange.
41 Your employment history had been limited to three years of a painting apprenticeship, ceasing that work at age 21 which coincided with your methylamphetamine use.
42 You had a girlfriend when you were 16-20. You are currently not in a relationship, however, apparently a female friend had recently expressed an interest in being in a relationship with you on condition you remain abstinent from drugs. That friend apparently visits you weekly in prison.
43 Your drug and alcohol history was set out within that report. You smoked cannabis from the ages 14 to 21 then developed a methamphetamine dependency.
44 In the past you had experienced anxiety symptoms consistent with post-traumatic stress disorder, relating to your childhood sexual abuse and violence you witnessed recently in custody. You had also recently been the victim of a serious assault resulting in head injuries when at Barwon Prison, approximately a month prior to Mr Deacon’s report. As a result you were moved to Port Phillip Prison for your protection and to recover from the injuries. You were concerned you would be further assaulted. You were currently being supported by prison mental health services and receiving medication for depression, anxiety and methadone.
45 You reported having been afflicted with chronic depressive symptoms since your early adolescence and that you only felt relief when you used methamphetamine.
46 Mr Kennedy relied upon R v Verdins & Ors[4] Principle 6 as applying in your case in mitigation of your sentence.
[4] (2007) 16 VR 269
47 Regarding your criminal history, Mr Deacon said it advanced when you started using methamphetamine, and that most of your offending had occurred when intoxicated under that drug. At the time of the offending before me you said you were using methamphetamine heavily, 1.5 grams per day, and selling stolen goods primarily to purchase methamphetamine.
48 You had completed a substance-use program in custody, and said you were motivated to cease using methamphetamine.
49 Turning to Mr Deacon’s opinion and recommendation, you had been methamphetamine-dependent for over three years, interrupted by the 20 month prison sentence. Following your release from custody in April 2016 you promptly recommenced using methamphetamine, including during the offending period.
50 Mr Deacon concluded there was no clear nexus between your mental issues and offending, noting as do I, that you committed the current offences whilst using methamphetamine. Mr Kennedy was not relying on Verdins principles 1-5 and such was an appropriate concession on the material before me.
51 In Mr Deacon’s opinion you required prolonged drug rehabilitation, and would also benefit from counselling referable to your childhood sexual abuse.
52 A number of certificates were tendered relevant to courses undertaken by you most recently on remand (Exhibit 3). The Relapse Prevention Program Substance Use Program, Change on the Inside Program, Coping Inside – Managing Sleep Program, and the Blood Spill training session. A Certificate relevant to your current custody enrolments was also tendered and reflect completion of a number of work related programs. You are to be commended for your efforts to date. I urge you to seek out further programs to assist your prospects of rehabilitation.
53 There was also correspondence written by you to the Court. You expressed your remorse for your offending and the impact of it upon your victims. You now appreciate, from your own experience in custody, how it felt to be a victim. You were aware drug use would likely lead to you spending further time in prison. You would like to participate in drug and alcohol programs when eventually in the community.
54 Also tendered were seven results of urine screens (Exhibit 4). The only medication detected in some results was methadone (legitimately obtained).
55 I have, as I have said, guarded optimism regarding your rehabilitation prospects. The report of Mr Deacon referred to you appearing motivated to maintain abstinence from methamphetamine and you realised you would need to complete a rehabilitation program in order to do that.
56 In sentencing you I must seek to maximise your rehabilitation prospects as they may be.
57 It is clear your offending has had a significant impact upon both victims.
58 I turn first to the victim of the armed robbery. There was a victim impact statement from Daniel Tinker sworn on 20 August 2016. He described that at the time of this offending he was very frightened and shaken up. In the days following it he felt in disbelief at what had happened, and he withdrew from family and friends. That withdrawal continued for about three to four weeks.
59 Your offending also caused him to be depressed, and had a direct negative effect on his university studies, work, life and social relationships. He had slowly overcome that depression. He rarely socialised at hotels or clubs, as he was very anxious in such venues. He was not sure if he would ever fully get over your offending. After your offending he felt sore and tired, and could not sleep properly or work for at least a week. The only long-term impact was his anxiety in public and he hoped that would decrease in time.
60 He did not believe he would get his phone or financial cards or wallet back. He was a student with limited access to funds and had to borrow over a thousand dollars to purchase a phone/wallet. He had not managed to fully repay the financial debt he owed to a couple of his close mates as a direct result of your offending.
61 There would be “no way” he would ever walk home alone again, particularly at night. Even in daylight hours in public he was anxious looking behind him. That anxious reaction was something he could not control. He would be short of breath and his pulse rate accelerated. He was learning to live with that, and with the assistance of his girlfriend the symptoms were easing.
62 There was also a victim impact statement from Nathan Hargreaves, signed on 11 May 2017. He described immediately following your offending he was extremely upset for weeks, and worried about his family’s safety. He had trouble sleeping, being acutely aware of any little noise, and was extremely tired. He continued to feel his privacy and home sanctuary had been invaded, and experienced stress on a daily basis. He had even discussed moving house with his family on many occasions.
63 There had also been a financial impact upon him. The loss of two cars, which had various things contained within. One of the cars was not insured, and his family had therefore lost in excess of $14,000. In addition, for security reasons and peace of mind, he had to change all the locks and also installed a security system and security camera at cost to him.
64 The main social impact had been on his ability to feel safe in his home. He felt targeted and paranoid much of the time, and was constantly worried about something like that would happen again.
65 Also referred to by the courts is the notion of social rehabilitation as a relevant sentencing consideration. A number of authorities have referred to the effects upon a victim, including DPP v Toomey[5], in which his Honour Vincent JA referred to social rehabilitation, citing DPP v DJK[6] in particular at paragraphs 17 and 18, of course allowing, as I do, for the difference in factual circumstances to those cases to the present offending.
[5] [2006] VSCA 90
[6] [2003] VSCA 109
66 The effects upon a victim are a relevant sentencing consideration (see s.5 Sentencing Act 1991). However, I must not allow the effects upon a victim to swamp the sentencing process.
67 As previously stated, Mr Kennedy urged Principle 6 in Verdins would apply when sentencing you. The prosecution conceded such would be applicable in your case and I also consider some mitigation of sentence is appropriate in that regard.
68 You are also currently in maximum security as a result of your involvement in assisting a victim of a prison assault. You also have general mental health issues although I understand those are currently being medicated in prison.
69 I also accept, consistent with the report of Mr Deacon, that you have had, in the past, a disadvantaged background, as described by him within the report, and such is also relevant when sentencing (see Bugmy v The Queen[7] and Hogarth v The Queen[8]).
[7] [2013] HCA 37
[8] (2012) 37 VR 658
70 Your father was in Court to support you and I note the positive comments you made regarding him, as noted by Mr Deacon. He is willing to assist you and had been supportive of you in the past, and that continued. You said you would like to go and work with him in the future. In that regard I discussed with Mr Kennedy whether or not this would necessarily be a protective factor and assist your rehabilitation given, as I understood it, you have previously lived with him, yet offended.
71 Mr Kennedy also referred to your relatively young age of 24 at the time of sentence and that rehabilitation would be an important sentencing consideration. While I accept with young offenders rehabilitation is important, the principles in cases such as R v Mills[9] are not of automatic or usual application. Each case depends on the circumstances, including the circumstances of the offending as well as the offender (see DPP v Lawrence[10], Connolly[11] and Azzopardi[12]).
[9] (1998) 4 VR 235
[10] (2004) 10 VR 125
[11] [2004] VSCA 24
[12] [2011] VSCA 371
72 As I discussed with Mr Kennedy, you unfortunately have a very concerning criminal record and failure to comply with court orders, particularly Community Correction Orders in the past. This also adds to my concern regarding your rehabilitation prospects.
73 Mr Kennedy’s primary submission was that time served, together with a Community Correction Order would be the appropriate disposition in your case. I discussed briefly with him the principles in R v Boulton & Ors[13], in which the courts have been urged to rethink the conventional wisdom about whether prison is really the only option. Further, Community Correction Orders are both rehabilitative and punitive.
[13](2014) 46 VR 308
74 Community Corrections Orders have been referred to and addressed in a number of cases since Boulton, including DPP v Maxfield[14], Alam v The Queen[15], Marocchini v The Queen[16] and Hutchison v The Queen[17], and relatively recently Gul v The Queen[18], mindful of course, as I am, of the different offending in those cases from yours.
[14] [2015] VSCA 95
[15] [2015] VSCA 48
[16] [2015] VSCA 29
[17] [2015] VSCA 115
[18] [2016] VSCA 82
75 I did not however understand Boulton to remove the requirement that a sentencing judge must take into account all of s.5 Sentencing Act 1991, nor did I understand Boulton to mean that sentencing principles stated by the Court of Appeal and other Courts relevant to your offending now amounted to nought. Nor did I understand Boulton’s decision to remove the instinctive synthesis when sentencing.
76 I also did not understand Boulton to remove the need for me to be mindful of the maximum penalties applicable to each of your charges. Further, I note Priest JA observed in Hutchison that:
“… it should not be thought that Boulton offers a ‘get out of gaol free’ card in situations where a sentence of imprisonment is necessary in a given case to satisfy the various purposes for which a sentence may be imposed.” [17]
77 Ms Churchill, on behalf of the prosecution, submitted that the disposition of time served with a Community Correction Order would not be appropriate, taking into account all relevant matters. The appropriate disposition, she submitted, would be a head sentence with a non-parole period.
78 In my opinion, to accede to Mr Kennedy’s sentencing submission that you be sentenced to time served together with a Community Correction Order would not, in all the circumstances of this case, appropriately or adequately reflect all relevant sentencing considerations, including the seriousness of your offending and also all matters in mitigation of sentence and personal to you.
79 In sentencing you I take into account the principles of totality and proportionality, and I remind counsel in relation to Charges 3, 4 and 5 are ‘rolled-up’ charges.
80 I sentence you as follows.
81 On Charge 1, you are convicted and sentenced to 5 months’ imprisonment.
82 On Charge 2, you are convicted and sentenced to 5 months’ imprisonment.
83 On Charge 3, you are convicted and sentenced to 14 months’ imprisonment.
84 On Charge 4, you are convicted and sentenced to 12 months’ imprisonment.
85 On Charge 5, you are convicted and sentenced to 6 months’ imprisonment.
86 On Charge 6, you are convicted and sentenced to 5 months’ imprisonment.
87 On Charge 7, you are convicted and sentenced to 3 years’ imprisonment.
88 On Summary Charge 21, you are convicted and sentenced to 7 days’ imprisonment.
89 On Summary Charge 38, you are convicted and fined $300.
90 On Summary Charge 50, you are convicted and sentenced to 14 days’ imprisonment.
91 I direct the following in relation to cumulation and concurrency.
92 Charge 7 is the base sentence.
93 That 2 months’ of Charge 1 be served cumulatively upon Charge 7.
94 That 2 months’ of Charge 2 be served cumulatively upon Charge 7.
95 That 8 months’ of Charge 3 be served cumulatively upon Charge 7.
96 That 6 months’ of Charge 4 be served cumulatively upon Charge 7.
97 That 3 months’ of Charge 5 be served cumulatively upon Charge 7.
98 That 2 months’ of Charge 6 be served cumulatively upon Charge 7.
99 That Summary Charge 21 to be served concurrently with the sentence imposed on Charge 7.
100 That 7 days of Summary Charge 50 to be served cumulatively upon Charge 7.
101 For clarity, the orders for cumulation are upon each other and upon the base sentence.
102 That results in a total effective sentence of 4 years 11 months and 7 days’ imprisonment and I direct that you serve a period of 3 years before you are eligible for parole.
103 Pursuant to s.6AAA Sentencing Act 1991, had you been found guilty of these offences following jury verdict, in other words, if you had pleaded not guilty to all of these and been found guilty of them, I would have sentenced you to a term of imprisonment of 7 years and set a non-parole period of 5 years.
104 Pursuant to s.18(4) Sentencing Act 1991, I declare you have spent 408 days in custody (up to and including 27 July 2017) by way of pre-sentence detention, I want that checked, and I will then direct that be entered into the records of the Court.
105 The prosecution made application for a forensic sample pursuant to s.464ZF. This was consented to by counsel on your behalf and I make the order based on the seriousness of your offending and your prior criminal history. This will be for a saliva sample and I must advise you the authorities may use reasonable force in order to obtain that sample.
106 The prosecution also made application for compensation in a total of $15,591.95. This was consented to by counsel on your behalf and I make that order in the terms sought.
107 The prosecution also made application for forfeiture of certain property. Your counsel consented on your behalf to the making of that order and I make the order in the terms sought.
108 Regarding licence cancellation and disqualification as a result of the charges of theft of a motor vehicle within Charge 4, your licence is cancelled and you are disqualified from obtaining a licence for a period of 3 years from today’s date, 28 July 2017. In setting that period of disqualification, I am mindful of the decision of R v Lefebure[19] and rehabilitation.
[19] [2000] VSCA 79
109 Any other matters?
110 MS CHURCHILL: No, Your Honour. I have checked the pre-sentence detention and I have come up with the same calculation.
111 HER HONOUR: Good. How about you, Mr Kennedy?
112 MR KENNEDY: Yes, Your Honour.
113 HER HONOUR: So, 408 days I will direct as at up to and including yesterday, 27 July 2017. Now, did you get the cumulations all sorted?
114 MS CHURCHILL: Yes, Your Honour.
115 HER HONOUR: Did you follow the sentence, do you need me to repeat it?
116 MR KENNEDY: No, Your Honour.
117 HER HONOUR: Would you like a piece of paper and I will just quickly again - - -
118 MR KENNEDY: I tried to type them out as much as I can, Your Honour, I will rely on the, on the - - -
119 HER HONOUR: Transcript?
120 MR KENNEDY: Yes.
121 MS CHURCHILL: I have it as well, Your Honour.
122 HER HONOUR: All right, well, that's fine and all right, well unless you want me to read it out again. Now, so you went through that and those figures added up, excellent. Yes, now I think I've signed all the paperwork. Now, just confirming that amount of money was 15, as I said.
123 MS CHURCHILL: That's right, Your Honour, yes.
124 HER HONOUR: I thought it was, I just wanted, I wasn't sure about the 95 cents but that's what I wanted to check. All right, thank you. Is there anything further?
125 MS CHURCHILL: No, Your Honour.
126 HER HONOUR: No, we will just wait a moment. I think I have signed everything so I will be able to leave. Thank you very much Mr Heywood. You head out there if you wouldn't mind. Mr Kennedy will probably pop down soon and see you, I would imagine, all right. Thank you for that. All right. Relevant paperwork will be given to the parties. Thank you.
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