Director of Public Prosecutions v Hill
[2018] VCC 1162
•30 July 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-18-00479
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRENDAN HILL |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4, 6 and 30 July 2018 | |
DATE OF SENTENCE: | 30 July 2018 | |
CASE MAY BE CITED AS: | DPP v Hill | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1162 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr N. Goodenough | Office of Public Prosecutions |
| For the Accused | Ms C. Lynch | Stary Law |
HER HONOUR:
1 Brendan Hill, you have pleaded guilty to one charge of armed robbery (Charge 1), the maximum penalty to that offence is 25 years’ imprisonment, one charge of burglary (Charge 2), the maximum penalty for that offence is ten years’ imprisonment and one charge of theft (Charge 3), the maximum penalty is ten years’ imprisonment.
2 Your offending occurred relevant to Charge 1, armed robbery, on 2 August 2017 and in relation to Charges 2 and 3, between 7 July and 7 August 2017.
3 The victim of your offending relevant to Charge 1 was 69 years of age.
4 It is not necessary for me to recount in great detail the facts of this matter, as the matter was opened in some detail by the learned prosecutor consistent with Exhibit A. I proceed to sentence you on the basis of the facts as summarised by the prosecutor and discussed during the course of your plea hearing. It is sufficient to say for present purposes that the facts in this case are most serious and disturbing.
5 I turn to a brief summary of your offending. Relevant to the offence of armed robbery on 2 August 2017, the victim, Bradley Morris-Shaoul, was travelling on his three-wheeled scooter from his home towards the beach over Point Nepean Road. It was very early in the morning, approximately 5.00-6.00 am, and he was walking his dog, as he regularly did.
6 As he approached a small lane near the bowls club, you approached him and asked if he had a light. Your co‑accused, Hayden Byrne, was also there at the time. Byrne went towards the victim from the back and side. You were carrying an orange electrical pipe about a foot in length.
7 You said, "This will be over in a few seconds, give me your wallet". Mr Morris-Shaoul said he did not have a wallet, and you said he must have, because everybody did.
8 Your co‑offender Byrne guided the victim off the scooter so that he was standing. Byrne then took the victim’s jacket that he was wearing off him. He located the victim’s iPhone 6 and case, which included an ING debit card, a pension card, taxi card and store cards. Those items, together with the jacket, were taken (Charge 1, armed robbery).
9 You then asked for the victim’s watch, and Byrne removed it. Byrne then asked repeatedly for the ring on the victim’s finger, and this was handed over (Charge 1, armed robbery).
10 The victim was told by each of you to walk away down to the beach. He did not have his walking stick, which was still on the scooter. You threw the Australian Flag on the scooter into the bushes.
11 The victim walked some distance from the beach to Point Nepean Road and reported the matter to a man working nearby, and police were called.
12 The scooter was later recovered but the victim’s keys, which included house keys and garage keys, were missing. The victim was unable to use his walking stick, as it was no longer on his scooter.
13 As I discussed with your counsel, Ms Lynch, your victim was a ‘very’ soft target given his physical incapacity. He was no threat to you and your co-offender, completely at your mercy of which you showed none. Your offending against this victim was cruel and inhumane.
14 You tried to sell the watch and ring to your brother soon after the incident. You were seen wearing a new watch and ring in the days following.
15 On Wednesday, 16 August 2017 your brother confronted you about the armed robbery, and some footage was shown. You said "I’m fucked, I’m fucked, what have I done?" You were punching yourself in the face as you said it.
16 On 14 August 2017 you turned yourself in to police and made a written statement in which you agreed you had been present when the incident happened, but you said that Byrne, your co‑accused, had been the one who was armed with what looked like a knife and had made the demands. You said you walked away. As your counsel conceded, you did not admit your role in this offending. You now accept your involvement was as stated in the prosecution opening (Exhibit A). I shall later return to your willingness to give evidence against your co-accused in any prosecution of Byrne for his offending.
17 You were interviewed by police on 14 August 2017, before the statement to which I have just referred. You said you had heard of the armed robbery, that you had nothing to do with it, but you were there. You said you were not carrying anything, and did not know where any of the ‘stuff’ taken was.
18 I turn to Charges 2 and 3. Between 7 July and 7 August 2017 you and a co‑offender broke into a residential house, used as a holiday home, in Rosebud. You lived either next door or over the road, whichever location it was, it was nearby. Your fingerprints were located at the house (Charge 2, burglary). A number of items were stolen, itemised in Exhibit A (paragraph 18) of a value of approximately $6,000 (Charge 3, theft).
19 On 14 August 2017 the owners were able to identify and recover a number of items (Exhibit A paragraph 19). Those items were located at your and your co‑accused’s premises. A number of items had not been recovered, set out in the prosecution opening (paragraph 20).
20 Additional items were recovered from Tony Santilli (your stepfather’s property), which included a wrench, an axe, secateurs and multi-grips. They were returned to the owners on the weekend of 27–28 August 2017.
21 On 28 September 2017 the owners received a Ryobi blower, another pair of waders, a black and orange Nike vest, and two reels.
22 When you were interviewed on 14 August 2017 you provided innocent explanations for the items located, and denied breaking into the house. The items located at your house you said had been carried from Byrne’s home. I note Byrne is not a co-offender on Charges 2 and 3.
23 The prosecution outlined a chronology relevant to your offending. Following your arrest and interview on 14 August 2017, on 16 August you failed to appear at a filing hearing and a warrant was issued and you were arrested on 17 August 2017. You were bailed that same day with a further filing hearing on 25 August 2017.
24 On 26 August 2017 you committed further offences, to which I shall shortly refer, and on 31 August 2017 an application to revoke your bail was unopposed. You were then remanded in custody and have remained in custody as at your plea hearing.
25 On 16 November 2017 at committal case conference, those representing you and the prosecution commenced plea discussions, and ultimately the matter was resolved on 5 March 2018.
26 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 has been spared the time and cost of a trial, and witnesses have not been required to give evidence upon your trial. I accept you indicated your intention to plead guilty relatively early to these charges. That the matter progressed as one would expect through the court system. Discussions between those representing you and the prosecution, as I said, led to the matter resolving on 5 March 2018.
27 I do note, however, that at the time of your written statement, that is your first written statement not the most recent one produced today, and interview by police you denied involvement in this offending. Your counsel, Ms Lynch, also conceded there was some minimisation in your responses to questioning, for example your reference to smoking cannabis prior to the offending, compared with your instructions that you had use cannabis, alcohol and ice.
28 I accept your pleas of guilty and timing of them are indicative of some remorse by you, although question the extent of it. I also discussed with Ms Lynch my concerns regarding remorse given your self-report of your involvement in the offending relevant to Charge 1, as given and stated in the report of Dr Cunningham (page 4). You are recorded as saying you "did not try to stop the offence from occurring" and that you "should have stopped the offence from occurring". Those quoted statements tend to suggest that you maintain you were present but not an active participant. That attitude is inconsistent with the agreed summary (Exhibit A). Conclusions by Dr Cunningham following that self-report cause some questions marks. I am, however, also aware it is likely Dr Cunningham had a copy of Exhibit A in which you do refer to your active involvement in the offending before the court.
29 I am prepared, as I have said, to accept your pleas of guilty indicate some remorse for your offending, although I am concerned about the extent of it.
30 As at 3 July 2018 you had spent 306 days in custody by way of pre-sentence detention for this offending, your bail, as I said, having been revoked on 31 August 2017.
31 There was a victim impact statement before me. The victim of your offending has suffered considerably in the manner described in that statement, to which I shall shortly refer.
32 Your co‑offender Byrne has a further committal hearing listed for 3 August 2018 in relation to the charge of armed robbery, ie: the equivalent of your Charge 1. This was clarified at your plea hearing, ie: the dates, and that it was referable to Charge 1. I understand the victim had already been cross-examined at a contested committal and a further hearing was adjourned until that date, for the prosecution to call you to give evidence at Byrne’s hearing. The issue I gather is identification of Byrne as your co-offender.
33 This plea hearing was ultimately adjourned for the prosecution and defence to discuss the giving of evidence by you in the prosecution case of Byrne.
34 Counsel briefly addressed me regarding that anticipated statement from you which the prosecution said they would rely upon at the trial of Byrne.
35 That statement has now been obtained and was before me today. Its value lies, the prosecution submits, in the identification of Byrne as your co-offender relevant to the armed robbery charge. The value of your statement of identification, despite your credibility issues (which was discussed at some length by counsel and myself) was regarded, however, as a potentially significant statement. You gave evidence you would give evidence consistent with your statement and identification of Byrne before me today.
36 As I said, before me you undertook to give that evidence consistent with your most recent statement taken on 26 July 2018 (Exhibit 6) in any prosecution of Byrne relevant to Charge 1. That evidence and undertaking was recorded. You stated you were aware of the ramifications relevant to sentencing on Charge 1 should you not give evidence in accordance with your undertaking and nomination of your co-offender Byrne.
37 Your counsel, Ms Lynch, prepared a written outline of submissions (Exhibit 7) regarding the relevant legal principles to such co-operation with the prosecution, and I have read those submissions.
38 I am also aware of the authorities to which she has referred and we discussed those briefly at your initial plea hearing.
39 Written submissions (Exhibit C) were also received from Mr Goodenough on behalf of the prosecution, relevant to your undertaking.
40 The prosecution conceded you were entitled to a significant discount for your co-operation in the upcoming committal and any trial thereafter involving Byrne. The prosecution conceded your assistance was of great significance to the prosecution of Byrne as you provided the only direct evidence of the involvement of Byrne in offending the subject of Charge 1. I also accept that your undertaking to co-operate places you in a more difficult position in custody (Exhibit 7, paragraph 11 and Exhibit C, paragraph 5, referred to by your counsel).
41 I was provided at your original plea hearing with a number of authorities relevant to assistance by you to authorities in the prosecution of Byrne, and these were referred to subsequently in the written submissions received.
42 I was directed to and have read DPP v Cooper[1]. The Court stated:
“The amelioration of sentence to be afforded for cooperation in every case must be determined according to a range of factors, including — but not limited to — the nature and extent of the cooperation; any willingness to give evidence against co-offenders; and any danger flowing from the cooperation. As was said in Freeman (2001 120 A Crim R 398), however:
... it is the genuine co-operation of the person furnishing the assistance which is important, whether or not the information turns out in fact to have been effective. The information must be such as could significantly assist the authorities. Any such discount should not be lost, for example, by reason of the offender not having to give evidence because the person the subject of the information pleads guilty.”
[1] [2018] VSCA 21 [44]-[46]
43 In DPP v Arthur[2] the court cautioned against the thought that there was a ‘tariff’ or standard discount, or that the assessment of the discount that should be given can generally be approached in a mechanical or mathematical way (paragraph 51).
[2] [2018] VSCA 37
44 As observed by Weinberg JA in Cottee v The Queen[3] :
[3] [2010] VSCA 285
“The extent of any sentencing discount given to an informer will of course, vary from case to case.”
Weinberg JA also observed:
“it is very much in the public interest that those who commit offences be given every encouragement by the courts to inform upon their co-offenders, and to give evidence against them. If that means that those who are informers receive the benefit of sentences that are significantly lower than they might otherwise merit, that is a price which society must be willing to pay.”
45 As Byrne is yet to be dealt with by the courts, the issue of parity, however, is not relevant when sentencing you.
46 You have admitted a number of prior court appearances. In particular you breached a community correction order imposed on 10 October 2016 by the commission of these offences. This is an aggravating feature of your offending. You are, of course, not being sentenced by me for those breaches. Its relevance is that you were on a Court order at the time of this offending. I discussed with counsel that community correction order was cumulative on other community correction orders and discussion with the prosecution indicated the community correction order of 9 December 2015 was also ‘in operation’, in essence increasing the community correction order commencing in October by approximately two months. Irrespective of that latter detail, your offending before me breached the order of 10 October 2016 at least.
47 Your criminal history is extensive commencing in 2001. You have appeared at court for offending including dishonesty offences, traffic offences, drug offences (including trafficking) and in 2015 intentionally causing injury (amongst other charges).
48 You do not have any prior offences of armed robbery, however, I am concerned your offending shows an escalation to violent offending. I do not treat that as an aggravating feature referable to sentence, however rather a matter of concern.
49 I note the gap in court appearances between September 2009 and December 2015.
50 Your prior offending history is concerning.
51 You also have a number of outstanding charges yet to be dealt with on 23 July 2018. They may now have been dealt with, I am not sure. Some of that alleged offending involved offences committed after your offending before me and I was given some detail regarding those offences.
52 I was told of subsequent offending by you yet to be dealt with by the Magistrates’ Court. That involved four charges relevant to offending committed on 26 August 2017. The charges related to breaching an intervention order, offending on bail, breaching conduct condition of bail and criminal damage.
53 The prosecution provided summaries of that offending.
54 The criminal damage and committing an indictable offence on bail was referable to you smashing a window at your home address. A further breach occurred when you attended Ms Drew’s home on 28 August 2017.
55 These matters were pending, with a hearing listed for 23 July 2017. I will just stop there. What happened?
56 MS LYNCH: I am just asking for the assistance of my friend' instructor, whether she could check.
57 HER HONOUR: I would like to get an update on that.
58 MS LYNCH: It is one thing that completely slipped my mind to update. Could I just approach him quickly?
59 HER HONOUR: Yes, just find out if it was dealt with. He might have probably just adjourned it for this one.
60 MS LYNCH: On the understanding it was adjourned but doesn't have a date, waiting for this to be - - -
61 HER HONOUR: That is as I would expect. Anyway, that is on transcript. They are still pending as I understand it. Originally listed as I understand it 23 July 2017, now adjourned off till some later date till I have sentenced on these matters.
62 MS LYNCH: It seems to be, yes, Your Honour.
63 HER HONOUR: That sounds logical. Ms Lynch submitted that pleas of guilty would be entered by you in relation to those charges. This offending, she urged, occurred around the same time as your offending before me, when you were using drugs and during relationship issues with Ms Drew.
64 As previously stated, this is relevant when assessing your rehabilitation prospects. Drug use is related to your offending and I am sure you know that. You need treatment for drug use to give me hope of your rehabilitation.
65 I note these are yet to be dealt with, although note Ms Lynch submitted they occurred at a time when you were affected by drug use.
66 There were also written submissions placed before me prepared by your counsel, Ms Lynch, at your initial plea hearing in which she acknowledged your offending was serious, and conceded, appropriately in my opinion, a term of imprisonment was the only appropriate disposition for your offending.
67 Addressing the circumstances surrounding your offending, you said you had been in a personal crisis following a breakdown of your relationship which had led to a dramatic escalation in your drug and alcohol use. You had only a brief association with the co‑accused prior to your involvement in this offending.
68 It was submitted your offending was opportunistic, spontaneous, ill thought out and not planned. I note, however, you were carrying with you at the time an orange electrical pipe which you must have obtained from somewhere, but you said you could not recall where.
69 Your counsel referred to opinions of Dr Cunningham in his report to which I shall shortly refer, that you were assessed as having an IQ of 86, and that your "overall thinking and reasoning skills were in the low average range”.
70 I discussed this with your counsel. Ms Lynch was not relying upon the principles in R v Verdins & Ors[4] relevant to your offending and such, in my opinion, was an appropriate concession by her.
[4] (2007) 16 VR 269
71 Turning to your personal circumstances, you are 35 years of age and raised in the Rosebud area. You left school in Year 10 due to ADHD issues and commenced working as a bricklayer. You had also worked in the building industry and as a deckhand on fishing charters, most recently undertaking part-time work with your stepfather.
72 You commenced cannabis use in your teenage years after hurting your back whilst snowboarding. Your use of cannabis and other drugs increased as a method of pain management. You graduated to daily drug and alcohol use, attracted a negative peer group, and were committing offences. In custody you have been prescribed medication to assist with your pain and depression.
73 In 2009 you started a relationship with Ms Drew. Her father employed you as a labourer in his business. You described a good relationship with him and that you were motivated to impress him and work hard, leading to your stability between 2009 and 2015 (and, I note, lack of court appearances).
74 I have no doubt you are aware your offending was directly linked to your drug addiction/use. It was urged by Ms Lynch that your lack of offending between 2009 and 2015 was evidence that you were capable of rehabilitation.
75 After the birth of your first child, Lily, in 2012, Ms Drew’s father died, which was a destabilising event that ultimately led to you relapsing into drug and alcohol use.
76 Your second child was born in 2016, however, due to your drug use and offending behaviour the Department of Health and Human Services became involved and removed your two children. They were subsequently returned to Ms Drew on the condition she did not associate with you. That led to the end of your relationship in 2017 and the start of your self-destruction.
77 It was around that time your association with Byrne developed. Byrne was also a drug user, with a significant criminal history.
78 Ms Lynch described you being ashamed of your conduct and for the embarrassment you caused your family and the trauma to the victims, in particular Mr Morris-Shaoul.
79 Turning to your prospects of rehabilitation, Ms Lynch relied upon Dr Cunningham’s conclusion that you had insight into the connection between drug use and offending behaviour. You were motivated to cease your use of drugs, and if you did, that would decrease your risk of re‑offending. You had in the past been able to maintain stable periods of employment, and you were hoping for a positive future relationship with your children.
80 It was sensibly conceded by your counsel , given your history of drug addiction and offending behaviour, your prospects for rehabilitation would likely depend upon your ability to remain drug free when you are back in the community.
81 You had, however, been abstinent whilst in custody and before me were six urinalysis reports indicating negative for illicit substances (Exhibit 4).
82 In custody you had also been using your time productively. Before me were certificates of programs completed by you and one currently undergoing (Exhibits 3 and 5). You had also been doing some training in custody and working as a laundry billet.
83 You have completed an AOD and Stress course, a Managing Emotions program and Managing Worry program on 15 November 2017. It would appear that there are multiple certificates referable to the AOD and Stress programs within the material, as I discussed with your counsel. You have also completed courses run by Kangan Institute, specifically Maintaining Carpeted Floors, Cleaning Glass Surfaces, Maintaining Furniture, Fittings and Room Dressings and Sort and Remove Waste and Recyclable Materials; also a unit described as Write Simple Workplace Information and completion of a blood spill training session run by St Vincent’s Hospital.
84 Ms Lynch submitted that you were trying to do all you could to decrease your risk of re-offending.
85 She submitted you did not present with any mental illness that contributed to your offending behaviour and in that regard your prospects of rehabilitation would not be hindered by underlying mental health issues.
86 Dr Cunningham also referred to you having some protective factors that may reduce your risk and improve your prospects of rehabilitation, including good work history, family support, and the motivation to improve your circumstances so that you can connect with the children.
87 You had expressed concern to Ms Lynch that you may become known to other prisoners as having made a statement in relation to Byrne and that the prospect of you being separated from your children for a significant period of time whilst undergoing sentence weighed heavily on you and I accept that is so.
88 I turn to the report of Dr Aaron Cunningham dated 2 July 2018, who assessed you on 28 June 2018. Details were provided of your background and history, much of which I was told by your counsel. You described your mother as a hard worker, and your stepfather as also a hard worker, albeit heavy-handed with discipline.
89 You described engaging with the ‘wrong crowd’ and that you drank and abused drugs from an early age. You referred to your relationship with Ms Drew ending in 2017 as a result of you abusing drugs, alcohol and being unfaithful.
90 You had not seen your children since being incarcerated although received visits from your mother and stepfather. I note your stepfather was in court to support you during your plea hearing.
91 You left school with a Year 9 pass, and thereafter worked on fishing charters on a seasonal basis, worked on occasions with your stepfather as a painter and decorator, and also with Ms Drew’s father for seven years.
92 Over the past two years you have been intermittently employed with your stepfather.
93 You described cannabis use between the ages of 16 and 34, smoking daily. You used ecstasy and amphetamine, the latter daily from the age of 19. You used methamphetamine from the age of 21, recently using two to three points per day.
94 You have not engaged in any drug and alcohol counselling prior to this incarceration. That is concerning as I have no doubt, as I have said, you are well aware of the adverse effects upon you of your extensive drug use.
95 In the opinion of Dr Cunningham you have prospects for rehabilitation, being remorseful for your offending behaviour, and with insight motivated to cease your use of drugs.
96 Regarding your prospects of rehabilitation, they are at best guarded, in my opinion. Your prospects of rehabilitation are directly linked to your abstinence from illicit drugs. You have made a start addressing that in custody, although it is yet to be tested back in the community. When sentencing you, of course, I must seek to maximise your chances of rehabilitation as they may be.
97 There was a victim impact statement before me from Mr Morris-Shaoul. Your offending has adversely affected his life. His statement is eloquent and it is difficult to do justice to it in these brief sentencing remarks.
98 He described being a Vietnam Veteran on a pension. He had suffered post-traumatic stress disorder (PTSD) for the past 40 years, spending many years in therapy and on medication to assist. Until this attack by you and your co‑offender, his life was in order and his PTSD under control.
99 As a result of your offending, his PTSD had relapsed and "taken him back 20 years".
100 He suffered constant terrible anxiety and also depression. His sleeping pattern had been severely disrupted and he now took medication to assist him to get some rest.
101 He could no longer focus on simple every day tasks such as polishing his shoes which he has not been able to do since your offending. He was no longer able to relax by reading or undertaking jigsaw puzzles which he had previously enjoyed.
102 He said he used to lead a simple life with his home therapy dog, taking it for walks at least twice a day using his mobility scooter provided by the Department of Veterans’ Affairs.
103 He described that his walk with the dog generally involved walking along the bike path between the Rosebud Pier and Rosebud Bowling Club.
104 They always left early in the mornings, as it was a busy area for walkers and like-minded people such as himself.
105 He said he had previously been a smoker. Due to a heart attack and subsequent angina problems he had reduced his intake of cigarettes to 20 a day, however, since this attack his smoking had increased significantly, causing problems to his health. He said that "just last month" he had spent a week in hospital with bronchial pneumonia.
106 He described feeling unsafe in his home, constantly checking to see if someone had been in the house. He feared going out, such having been a simple pleasure enjoyed by him prior to your offending.
107 There was always a heightened sense of alertness that never gave him rest. He was frightened by every moving bush or shrub.
108 Even the installation of security cameras given to him by companies he had never heard of, having heard the story of your offending, had not taken away his feeling of insecurity.
109 He was now back in therapy and on increased medication.
110 Also relevant is the notion of social rehabilitation. See DPP v Toomey[5], in which his Honour Justice Vincent referred to social rehabilitation citing DPP v DJK[6]. While the offences are very different in that case from yours, social rehabilitation is relevant.
[5] [2006] VSCA 60
[6] [2003] VSCA 109
111 The effects upon a victim are a relevant sentencing consideration (s5, Sentencing Act 1991). I am aware, however, I must not allow the effects upon a victim to swamp the sentencing process.
112 As well as matters personal to you to which I have referred, including your prospects of rehabilitation, I must also take into account matters such as deterrence, especially general deterrence, which is of considerable importance in a case such as this. In particular I refer also to Charge 1, the victim of your offending being a ‘soft target’.
113 There is also a need for specific deterrence when sentencing you, as you have an extensive criminal history albeit not for armed robbery, and that this offending breached a community correction order.
114 I must also consider the protection of members of the community from you, and bear in mind the likelihood of your re‑offending. This causes me concern. You obviously have an entrenched history of drug use, and extensive associations with negative peers. Unless those factors change you will return to court. There remains the need for me to protect the community from you.
115 I am called upon by the Sentencing Act to manifest the community’s denunciation of your conduct, and generally to impose a just punishment.
116 In sentencing I take into account the principles of totality.
117 Further, in sentencing on Charge 1, I have reduced the sentence I would have otherwise imposed to reflect your co-operation with the prosecution in any future court hearing involving co-offender Byrne and direct that it be noted in the records of the court that the sentence reflects your undertaking to so co-operate.
118 I sentence you as follows.
119 On Charge 1, armed robbery, you are convicted and sentenced to 2 years’ imprisonment.
120 On Charge 2, burglary, you are convicted and sentenced to 20 months' imprisonment.
121 On Charge 3, theft, convicted and sentenced to 12 months’ imprisonment.
122 I direct the following in relation to cumulation and concurrency.
123 Charge 1 is the base sentence.
124 I direct that 12 months of Charge 2 be served cumulatively upon Charge 1.
125 I direct that 7 months of Charge 3 be served cumulatively upon Charge 1.
126 That results in a total effective sentence of 3 years and 7 months’ imprisonment, and I direct you serve a period of 2 years before you are eligible for parole.
127 Pursuant to s6AAA Sentencing Act 1991, had you pleaded not guilty to these charges and been found guilty of them, and I assume by that you would have not been giving an undertaking to give evidence against Byrne, I would have sentenced you to a term of imprisonment of 7 years with a non-parole period of 5 years. That does not apply though.
128 Pursuant to s18(4) Sentencing Act 1991, I declare you have spent 333 days in custody (up to and including 29 July 2018) by way of pre-sentence detention and I direct that that be entered into the records of the court. I will come back to that.
129 The prosecution made application for a forensic sample pursuant to s464ZF Crimes Act 1958. Your counsel on your behalf consented to the making of that order. It will be in the terms sought. It will be for a saliva sample, based on the seriousness of this offending and your prior criminal convictions. I must advise you the authorities may use reasonable force in order to obtain that sample.
130 First of all, pre-sentence detention, is that right?
131 MS LYNCH: I had 333 but if that could be checked.
132 MR GOODENOUGH: That is the maths that I have as well, Your Honour, 333, not including today.
133 HER HONOUR: All right, we will make it 333. No leap years there anywhere?
134 MR GOODENOUGH: Not relying on adding them up one by one, but the computer says 333 days not including today.
135 HER HONOUR: All right.
136 HER HONOUR: Were there any other orders?
137 MR GOODENOUGH: No, Your Honour.
138 MS FLYNN: No, Your Honour.
139 HER HONOUR: Thank you both for that. You are excused.
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