Director of Public Prosecutions v Hopcraft

[2022] VCC 900

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 22-00182

Indictment No.  M11947830

DIRECTOR OF PUBLIC PROSECUTIONS

v

BRETT HOPCRAFT

- - -

JUDGE:	HIS HONOUR JUDGE TINNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	6 June 2022
DATE OF SENTENCE:	10 June 2022
CASE MAY BE CITED AS:	DPP v Hopcraft
MEDIUM NEUTRAL CITATION:	[2022] VCC 900

REASONS FOR SENTENCE

---

Catchwords: Recklessly Causing Injury - Prohibited person use a firearm - Possess drug of dependence - attempt to pervert - Summary offences: commit indictable offence on bail x 2 – Deliberate discharge of firearm in shooting game – Early Plea – Remorse - Worboyes v The Queen [2021] VSCA 169; COVID-19.

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S. Davison	Office of Public Prosecutions
For the Accused	Mr M. Woods (at Sentence) Mr T. Glass (at Plea)	Tyler Tipping & Woods, Barristers & Solicitors

HIS HONOUR:

1       Brett Hopcraft, you have pleaded guilty to one charge of recklessly causing injury, one charge of being a prohibited person using a firearm, one charge of possession of a drug of dependence, and finally, a single charge of attempting to pervert the course of justice.  You have also pleaded guilty to two summary offences of committing an indictable offence whilst on bail.  You are 37 years of age and have a criminal history of some relevance to my task.

2       You have been in custody since your arrest on 14 September of last year.

3       The summary of prosecution opening on the plea correctly sets out the maximum penalties, and I am not going to repeat them now.

Facts

4       That summary is dated 9 May 2022 and was marked as Exhibit A on the plea and your counsel, Mr Glass, told me that it was an agreed statement. 

5       I see no need then to set out the full sentencing facts in my reasons. I will sentence pursuant to the agreed summary.

6       By way then of only a brief summary, in August of last year, you were prohibited from possessing or using a firearm. You had a shortened rifle which was connected to the property you were then living at, at Wild Dog Valley. You used it in a most extraordinary fashion on 5 August of last year.

7        I thought that over my 12 years as a judge and more than 25 years in the law prior to that, that I had seen pretty much every variant of incredible, stupid, foolish, criminal, reckless or dangerous behaviour. Well, I was quite mistaken. Along comes a case such as this and one can really only despair.

8       Your conduct involved playing a shooting game with a sawn down .22 rifle.  Not a toy. Not a spud gun or an air rifle. A shooting game with an operational .22 gun firing live ammunition. The game did not involve a test of marksmanship, for instance the shooting of a matchbox off a fence post.  This ‘game’ involved agreeing with your 30-year-old female victim to take in turns shooting each other in the house you were then living at, this occurring whilst you were on bail from two days earlier for some summary offences, which ultimately did not proceed. It also occurred whilst you were on bail for breach of a County Court community corrections order.  From 26 July Judge Parrish had extended your bail on that breach in a deferral arrangement. 

9       It is true that your conduct on 5 August was not motivated by any malice or enmity. I am not sure whether you were in lockdown in the regions at that time but if you were, I must say as a lockdown activity, it is an understatement to say it left a fair bit to be desired.  A jigsaw or maybe a subscription to a streaming service would have been highly preferable to shooting each other.

10     Your victim had little, if any, understanding of the ramifications of the firearm or the projectile. She thought it was a round with little consequence. She had it in her mind that it was in the manner of a rubber bullet. It matters not one jot whether you had told her that or not.  Though there was some talk of 'ratshot’ in your interview, very evidently when your turn arose, you used a real bullet. I note you are not charged with negligently causing serious injury.  Rather, this is a charge of recklessly causing injury, and of course the injury you foresaw was a gunshot wound of some description.

11     You loaded the weapon and it must be said, chivalry was not dead in
Wild Dog Valley. You gave the firearm to her so that she could go first. Bizarre, frankly, as of course you might never have got to have your go. Maybe you thought it was 'ratshot' and maybe it even was for her turn at firing the gun, or maybe you just literally and figuratively dodged a bullet when she fired and missed. Maybe you did not care.  Who knows?  I note there is a reference in the expert report of your being to some extent suicidal in this precise timeframe.

12     At least in Russian roulette there is one bullet in a revolver with six chambers. So an element of chance. The good fortune for you lay in her incompetence with the weapon. She had no idea what she was doing with it, she had two misfires and then missed you entirely with her third effort. If she was firing the same sort of round as you fired a moment later, her round might have just as easily entered your head and killed you. You might never have got to have your turn, but you did.

13     She then gave you the weapon and it was your turn. You then loaded it. She had no idea how to load a weapon. No one compelled you to take your turn and, frankly, even had you earlier loaded the weapon with ratshot for the first shot, it would not be a bad idea to check the actual bullet in any reloading of the weapon, whoever had loaded the weapon, but of course that involves the notion that someone playing a shooting game with a real rifle would be exercising some level of prudence and caution around the use of a firearm, which is a bit absurd.

14     Your victim donned a motorcycle helmet and a leather motorcycle jacket and stood with her back to you, awaiting your turn.

15     What possessed you, someone who knew something about firearms, to then shoot a round into her back? You could not have had any sensibly based illusions as to the protective capacity of a leather jacket. She obviously did. This was a live round and, unsurprisingly, when you fired the shot, well, it entered her body and fractured her scapula and a rib before lodging in her body. She slumped to the ground in pain. Hardly a surprising outcome. She did not want treatment at all and was worried about being arrested on some outstanding matter, and so you went along with that foolishness, albeit a bit uneasily.

16     Indeed, she stayed in the house for the next couple of days and not in a good state at all. She left the house on about 8 August and was in due course arrested by police in relation to an unrelated matter, and when she was lodged in the cells she was asked a standard question as to whether she had any injuries and she told the bemused police watchhouse keeper that she had a gunshot wound to her back. Off then she went to the Latrobe Regional Hospital and then an air ambulance flight down to the Alfred Hospital for surgery the following day.

17     She was not particularly cooperative or forthcoming with police but they executed a warrant at her house and found a shirt with an apparent bullet hole and blood. Her phone was analysed and found to contain an image of her showing a gunshot wound and there was also a series of texts. She told a friend that she, ‘got shot yesterday, it wasn’t meant to be as bad as it was’. There was a text she sent to you on 7 August, saying that her condition was worse, and a text from you the following day saying, 'Fuck Billie, I’m a bit worried about it. Wish I never had done it'.

18     Police attended your property on 17 August and you told them the victim had been staying there but that you had no knowledge of any shooting.  Numerous bullet holes were observed in the plaster wall. I note there were bullet holes riddling the panels of the car outside, as depicted in the photographs in the depositional material.  Your phone was seized and all texts between you and the victim had been deleted.  There was, though, an image of a shortened bolt action rifle.

19     The victim provided a statement on 10 September. You were arrested on
14 September and made a series of damaging admissions. That should have been the end of it. You were in quite enough trouble already but, for whatever reason, you decided to create a bit more for yourself.

20     Bizarrely, from prison, you then engaged in the conduct described in the summary, that is attempting to pervert the course of justice by having your girlfriend destroy various items linking you to the shooting, including the motorbike jacket with the hole in the back. It was quite bizarre, as you had made admissions.

21     You have been in custody since 14 September 2021, though a portion of that related to the sentence imposed by Judge Parrish in February of this year upon re-sentencing you on the breach of the community corrections order.

22     So much then for my brief summary of the summary. That is all it is. I will sentence pursuant to the more detailed agreed statement, which is marked as Exhibit A.

23     As I said on the plea, had I not read the summary, I would not have believed that anyone would act in such a way as you did on the
5 August.  It would have been bizarre conduct even for children or young teenagers to engage in. For a mature adult to engage in such activity is scarcely believable. Had you killed her, as you so easily could have, you would have faced a manslaughter charge, at best.

24     Your offending simply beggars belief. Your own counsel employed that very term and he was right.

Impact

25     There is no impact statement here. I hardly need one. You shot her and caused the injury described. She needed medical treatment and surgery. She was in hospital for some six days.

In Mitigation

26     Your counsel, Mr Glass, relied upon some written plea submissions dated
3 June 2022.  He filed an old report from a psychologist, Mr Cunningham.

27     He told me of your family background as well as your educational and employment history. He took me to some of your past offending as well. He made submissions about the relative objective gravity of the offences to which you had pleaded guilty as well as the relevant sentencing purposes in this case. He also made submissions about your substance abuse history and your prospects of rehabilitative.

28     He relied upon the following matters in mitigation:

·     your early guilty plea in the midst of the global pandemic;

·     the presence of remorse; and

·     the impacts of COVID-19 upon your custodial experience.

29     He conceded that a term of imprisonment was required here and he abandoned the written submission that a term equating with your existing pre-sentence detention would be a sufficient sentence.  That had proceeded on the incorrect assumption of the existence of a higher level of pre-sentence detention.

Prosecution

30     Your counsel did not seemingly cavil with the submission made by the prosecution about the need for a head sentence and a non-parole period.

31     I will discuss these various submissions shortly.

Background

32     I will turn firstly to your background. I will do that briefly, as I have no reason not to accept what I have been told as to your background and I see no point in just restating it all.  Much of it is set out in the written outline from paragraph 6 on p2, not to mention in the report of the psychologist, Dr Cunningham.   

33     You were born in Australia in February 1985, so are now 37 years of age. You have one younger brother and you grew up in Cranbourne. Your parents separated when you were about 17.  You left Boronia Heights Secondary School at the age of 15 to do an apprenticeship as a glazier.  You worked in that field for 15 or so years and beyond that then you worked in the dairy industry on a private dairy farm. That was the house you committed the shooting at. You hope to return there at the end of any sentence. You had left home at the age of 17.  I was told you have a son who is aged 15 from one relationship that you had.

34     Your mother became ill in about 2010 and she died four years later.  You are close to your father.  I was told you are still in a relationship with
Caitlyn Angelopoulos and that you have been together for about five years.  She was the person you spoke to in the endeavour to destroy the footage and the jacket.  There may be some reason to doubt that you are still together but nothing much hangs on that. The prosecutor informed the Court that at a recent plea hearing conducted for Ms Angelopoulos, the Court  was told by her counsel that the relationship was at an end.

35     You started using cannabis when you were 15 and then you used ecstasy and amphetamine socially in your teens, but that drug use escalated to methamphetamine when your mother died and you had relapsed at the time of this offending.

36     You have a criminal history, and though it is not particularly long, it is troubling enough. You have prior appearances for assaults and contravening family violence orders and intentionally causing injury, as well as the robbery convictions imposed in this Court in 2018. You have breached a number of Court orders. You have obviously not taken your chances and as I have said, you were on bail at the time of this offending for some summary offences which did not ultimately proceed. You were also awaiting the breach of that
County Court community corrections order.  Judge Parrish had allowed you to go on bail for a deferral of that sentence to see how you were travelling. That deferral was ordered only on 26 July, so less than a fortnight before you were engaged in this nonsense. He was going to review your efforts in September.

37     The criminal history is of some relevance to my task but of course I must pass proportionate sentences here, and you do not fall to be sentenced a second time for any of that past offending. That history does not aggravate the offending I am dealing with. You received those other sentences and you served them. Those matters do have some relevance to my task because I have to make judgments about your risk of re-offence and your prospects of rehabilitation.  I also have to make judgements about the need to deter you from future offending as well as the need to protect the community from you. I do note, though, that you came before the Court really for the first time at about the age of 26. That is actually quite old and it hints at someone who can stay out of mischief in the future, as you had for many years in the past.

38     I turn then to consider the other matters that have been raised on your behalf by your counsel.

Guilty Plea

39     The first of those matters is your guilty plea.  You have pleaded guilty at what I will treat as the earliest opportunity. That is important.

40     As a result of taking this very early responsibility, the time, the cost and the effort of a committal in the lower Court or a trial up in this Court has all been avoided.  Witnesses have not been required to give evidence at either a committal or at a trial. They have been entirely spared that experience.  After a bit of non-cooperation on 17 August when you misled the police, you then cooperated with the police and you made full admissions when you were interviewed. I take that into account in your favour as well. I must say, it makes more bizarre still the later attempt to pervert the course of justice.

41     You have then in these various ways facilitated the course of justice. 

42     Your guilty plea is worthy of extra weight for the many reasons set out in the Court of Appeal decision of Worboyes.[1] There has arisen a large backlog of cases in the course of the global pandemic.  Your case was really never one of them.  It was very swiftly settled.

[1]Worboyes v The Queen [2021] VSCA 169

43     So I take these various matters into account in mitigation.

Remorse

44     I am also prepared to find that you are remorseful for your crimes despite the attempt to pervert and despite what you then said in the course of one of those conversations about your victim going to the police.  As you put it, 'That bitch made a fuckin' statement'.  (See p187).  The fact is, though, you made full admissions and you have pleaded guilty at the earliest stage and there was also the text that you sent to your victim signifying your regret.  Your concern is also mentioned in the statement of your victim.  So I am prepared to treat your words about the victim having made a statement to the police as a bit of a throw-away line at the time.  I take the existence of remorse into account in your favour.

Rehabilitation

45     I turn now then to your prospects of rehabilitation.

46     It is hard not to be a little bit guarded.  You have not taken your chances when offered them by the Courts. You have seen the inside of prison on a handful of occasions and that seemingly has not deterred you sufficiently.

47     As I have mentioned, you were on bail at the time of this offending, bail from
3 August on some summary matters, and bail from the 26 July extension of bail in this Court to see how you went on the deferral of the County Court community corrections order breach.  So you had every reason to behave and no reason at all to misbehave.  You knew you were going back before Judge Parrish for review in September of that same year, yet you offended in this way. You were not some silly teenager. You were a mature man using a firearm you should not even have had possession of. You foresaw you would cause her injury. You have had long term and serious issues with drugs and that sort of thing casts a bit of a shadow over your prospects. However, you also have some family support and you have had a very decent employment record over the years. As I mentioned a moment ago, it is not entirely clear if you still have that relationship with Ms Angelopoulos. You say you do. The prosecutor argued that at her very recent plea, the Magistrate was informed that the relationship was at an end.  I note that she was placed on a community corrections order herself for offending, including threatening to kill and harassing the victim in this matter, but that bizarre conduct falls at her feet and not yours.  She has been sentenced for it.

48        Having considered all of the materials, I am prepared to accept the submission that you have reasonable prospects of rehabilitation.  They will be conditional upon abstaining from drug use in the future, and that has been a problem for you over the years.

COVID-19

49         I turn then to the issue of COVID-19 and its impact upon you.  I accept that the COVID-19 virus and the response to it by those who run the prisons has increased your prison burden.  Prison has undoubtedly been a more stressful environment in the time that you have been there since September of last year.

50        No doubt there has been worry about catching the virus in such a setting where, unlike someone out in the community, there really is no level of autonomy or control.  There have been some lockdowns and I am confident that you have also experienced the increased burden of quarantine or lockdown on occasions.

51        There undoubtedly would have been some limitations to visiting and the full range of courses and programs in at least some of the period in which you have been held.

52        It certainly has not been a good time to be locked up.  No doubt this was taken into account in the sentence imposed by Judge Parrish. He sentenced you to a 15-month term on 1 February of this year and allowed for 345 days'
pre-sentence detention, which had been the previous declaration.

53        Further, there was allowance made by the authorities for some emergency management days, so I cannot take it all into account again now. 

54        However, for the sizeable periods not covered by that sentence, I certainly can.  That sentence did not start until 1 February of this year and it lapsed by about 4 April.

55        Things have looked up in recent times, both in the community and in a prison setting.  Personal visits resumed from about March of this year.

56        But what lies ahead in the future?  Well, that is impossible for me to determine.  I cannot speculate about that.  Those whose job it is to run the prisons will be able to actually reflect on the impact of any past and ongoing limitations on a case-by-case basis.  They will have the power to address any increased burden in your case by way of conferring emergency management days in relation to the sentence that I am shortly to impose.  I cannot know if that will take place or not.  I do not proceed on the assumption that it will.  To take it into account would be to contemplate future 'executive action' which is prohibited. Case numbers are still high in the community.  It is not that unreasonable to think that prisoners may yet have some issues thrown up by COVID in the coming months. I take that into account as well. I note that I still could not bring you out to Court in person, for to do that would have then exposed you to a seven day quarantine going back in the other direction.  The prisons have tended to lag a bit behind the community in terms of restrictions being lifted. They also tend to bring them back in more rapidly and it is pretty plain to me that we are not yet ‘out of the woods’ in terms of COVID-19 and its ramifications, both in the general community or for prisoners.

57     So I take into account the increased burden posed by the response to
COVID-19 in the manner that I have described.

58     I have barely mentioned the report of Mr Cunningham, the psychologist, and nor shall I dwell on it in any detail. It was not being relied upon to enliven any of the principles from the well-known decision of Verdins.[2]  It is of very little weight in this case, as your own counsel made clear.  It is an old report and not even one addressing this offending.  I am, though, assisted by the coverage of your personal background and the views of the author as to what you need to rehabilitate. Abstinence from drugs is pretty crucial for you.

[2]R v Verdins [2007] VSCA 102; 16 VR 269; 169 A Crim R 581 (“Verdins”)

General

59     I turn now then to some general matters. I am required to take into account a large range of matters, including the maximum penalties and the nature and the gravity, as well as the impact of any crimes committed by you.  I will come back to the gravity of the offences shortly.

Current Sentencing Practice

60     I am required to take into account current sentencing practices. Current sentencing practices are only one factor amongst many and they are not a controlling factor.

61     I have looked at the various online sentencing statistics where they are available, as well as examples of other sentences imposed as disclosed on the Judicial College of Victoria sentencing manual case collection. Statistics have inherent limitations. They say nothing at all about the individual features of any case. They are silent as to all of the many features of aggravation or mitigation which might exist in a given case and which will explain a particular sentencing outcome.  I am not sentencing as a statistician.  I am exercising a sentencing discretion as a judge.

62     There is no such thing as one correct sentence either, and what I must do is pass what I judge to be an appropriate sentence in your case. 

63     Other cases, even comparable ones, even if they could be found, have significant limitations. I could hunt forever and never find a comparable case to the example of recklessly causing injury in this case.  It is quite unique.  It being unique does not equate to it being minor or not serious.  The mechanism was serious indeed.

Purposes

64     I have to take into account the various purposes of sentencing. 

65     Rehabilitation is one such purpose.  I do not ignore that purpose.  I believe you do have reasonable prospects of rehabilitation. 

66     But rehabilitation is not the only purpose of sentencing. 

67     Punishment is an important enough sentencing purpose in this case.  You must be punished for your crimes, justly and proportionately. 

68     I must also denounce your conduct and I do.  It was remarkably stupid, foolish and dangerous conduct.

69     Community protection is another purpose of sentencing.  It has at least some relevance to my task given the offending.  You were using a gun.  You should not have even been holding a gun.  You used a gun, you discharged it into your victims back. I must consider the need to protect the community from you.  I think I can moderate that purpose here given the very unusual nature of the recklessly causing injury not involving any malice at all or any enmity.

70     Specific deterrence is the need to deter you, and that is obviously still of some importance in this case. You must be deterred from offending in the future.  Again though, I think it can be moderated, especially in relation to the recklessly causing injury.  It is almost impossible to imagine you will ever find yourself in that same position again.

71     General deterrence relates to the need to deter other offenders in the future.  That is of some importance to my task.  More so in relation to the prohibited person charge and the attempt to pervert actually, than the recklessly causing injury, given the very unusual factual setting.

Gravity

72Let me deal now with the gravity of the offending.  I have to pay regard to the gravity of the offences before the Court.  You should not have had any firearm. Instead, you had one whilst prohibited and you then used it to cause injury.  It was a gun connected to the farm where you were then living and there is no suggestion that you have modified it yourself or even that you owned it, but you used it in the way I have described.  You then sought to have evidence destroyed. This was no minor offending at all. The uniqueness of the recklessly causing injury cannot save you.  It is unique, but as your counsel concedes at paragraph 19 of the written submissions, you knew these were not rubber bullets being fired from a gun.  How could you not have foreseen the probable consequences?  Well, of course you did.  You have pleaded guilty to recklessly causing injury.  That is not to say that you foresaw the actual injuries.

73The fact that your victim was behaving foolishly does not save you either.  It does not impact upon your level of understanding. I do accept there was no malice or intention to harm arising out of any enmity, malice or disagreement.  That is of obvious importance.  The notion of you acting recklessly, as set out in paragraph 23 of the written submissions, really understates the true position. You were acting deliberately. You intentionally discharged a firearm into a person’s body from a relatively close distance.  You foresaw the probability of injury being caused by that act. That is the aspect of recklessness here, not recklessness as to your physical act but, rather, as to the consequences. I repeat, you foresaw the probability of injury. Well, plainly, at least in terms of consequences, it was not offending at the lowest level. Recklessly causing injury can cover some very minor outcomes.  It can be a blood nose or a scratch or a small cut and with no weapon employed as the mechanism. This case involves a penetrating gunshot wound into a person’s body.  It fractured the scapula and caused a comminuted fracture of a rib.  It required surgery and a sizeable enough hospital stay.  As I have said, you were very fortunate indeed that she was not more seriously injured or killed.  So none of this translates into a very low level example of the crime of recklessly causing injury, in my view, though I must not lose sight of the absence of malice in this case.  It is most unusual and must, I believe, lead to some significant moderation or softening of the sentencing approach.  I doubt if I will ever see another crime quite like it. The fact is in a slightly altered factual setting, one where you were shooting in the way you did with malice over some disagreement or a drug debt or an argument, well, nothing would save you from a sentence measured in years on the recklessly causing injury alone, but that is not the setting and the sentence must be significantly moderated, and that is so notwithstanding the mechanism and outcome. As to the attempt to pervert, your understanding that the calls were being recorded is in no way mitigatory. You wanted the evidence destroyed and were not too fussed if that conversation happened to be overheard.  Yes, it was quite desperate and misconceived, more so given that you had made full admissions to the crime. You were not seeking to conceal what you were doing in the course of the phone call.  You were hoping to conceal what you had done by having your girlfriend destroy evidence. Again, quite bizarre given the admissions, but there is nothing unusual about such a crime being committed in the course of taped Arunta call from a prison.  It actually happens often enough.  I have dealt with two similar cases within the last handful of months.

74As to the prohibited person using firearm charge, well, cases of Best[3], Powell[4]  and Simpson[5] refer to the earlier case of Berichon[6]. Berichon, has references to the sentences available for the higher category offending.  There have been many other cases dealing with this issue including the case of Acciarito[7] and also Basic.[8]  I note also, by the way, that Berichon was in the context of an offence that had a higher maximum penalty.

[3]Best v The Queen [2015] VSCA 151

[4]Powell v The Queen [2015] VSCA 93

[5]Simpson v The Queen [2015] VSCA 210

[6]Berichon v The Queen [2013] VSCA 319

[7]Acciarito v The Queen [2019] VSCA 264

[8]DPP v Basic [2017] VSCA 376

75These various cases describe the two broad categories of offending, as well as sentencing practices and range for each band.  The first being the least serious band, where it is not open to conclude that the possession of the firearm was associated with some ongoing criminal purpose, and the more serious second category, where the evidence enables that conclusion of possession for a criminal activity or specific criminal purpose.  For example, in the context of criminal activity to provide security, or as a means of enforcement.  What is very clear from the cases is that sizeable enough sentences are imposed for that lower band of offending.  The fact is, though, that Berichon has not established some fixed subcategories of offending which constrain the Court's approach to the individual circumstances of the individual case.  Sentencing does not involve that sort of mechanistic or automatic exercise.   

76     Well, here you were using this firearm to shoot someone in this quite ridiculous game.  However, I have treated the mechanism, that is the use of the weapon, as a feature of aggravation in relation to the recklessly causing injury.  To then aggravate the prohibited person charge for itself having a connection to a criminal act would be to use an aggravating feature against you on two occasions.  That would involve an aspect of double punishment and I must be astute to avoid that.  There is clearly an overlap here but it is not a case where there is a complete overlap and nothing for one of the offences to do.  The prohibited person charge relates to using a firearm whilst prohibited. That offence does not require any injury or in any way contemplate your state of mind when using the weapon.  It is no minor example of the crime but it seems to me that I must not treat the use of the weapon in committing the crime of recklessly causing injury as a circumstance elevating the firearms offence itself into the more serious Berichon class.  I take that attitude to avoid doubly punishing you. The overlap I have spoken of is relevant also to considerations of totality of sentence.

Totality

77     I take into account that principle of totality.  This was not some single episode of offending.  You discharged the weapon on 5 August.  You then attempted to pervert the course of justice on two later dates in September.  However, there is the connection between that later conduct and the recklessly causing injury and the Firearms Act offence.  I have already spoken of the sizeable overlap between the recklessly causing injury and the Firearms Act offence.  I have engaged in a last look at the effect of the sentences to satisfy myself that the overall effect is commensurate with your overall criminality. Prison is a disposition of last resort.  It always has been. It always will be.  I have no alternative here and that much is conceded.  Your counsel retreated from the submission that your existing pre-sentence detention was sufficient.  Plainly, it is not sufficient here.  I do pay regard, though, to the fact that you have been continuously in custody since 14 September of last year.  The fact that a portion of that period, that is from 1 February until 4 April of this year, related to
Judge Parrish’s sentence, does not mean it is irrelevant to my consideration.  It is not irrelevant. I pay regard to all of that period you have been in custody whether on remand or as a sentenced prisoner, in assessing totality.

78     Mr Davidson, there is a disposal order, I think, in this case, is there?

79     MR DAVIDSON:  There is, Your Honour.

80     HIS HONOUR:  Yes, all right.  Let me just unearth that.  Thanks.  Yes, all right.  There is application made pursuant to the provisions of s78 of the
Confiscations Act for disposal of the property listed in the schedule.  There is no opposition taken to the making of that order.  I am satisfied that the preconditions for the making of the order are made out and I have signed that order and I forfeit to the State the property referred to.  I direct that it be handled and managed in the way contemplated by that signed order.  Let me then deal with the sentence.  I am sorry it has taken so long to get to the numbers,
Mr Hopcraft.

Sentence

81     On Charge 1, which is the charge of recklessly causing injury, I convict and sentence you to 18 months' imprisonment. That is the base sentence.

82     On the charge of prohibited person using a firearm, that is Charge 2, I convict and sentence you to 14 months' imprisonment.

83     I am satisfied that the prosecution summary suggesting that the lesser penalty provision is in play for the drug offence, Charge 3, is correct.  On that charge I simply convict and fine you the sum of $300.

84     On Charge 4, which is the attempt to pervert the course of justice, I convict and sentence you to 12 months' imprisonment.

85     On the two summary offences I will impose an aggregate sentence of seven days' imprisonment. I am going to run that concurrently with all other sentences, for I have taken the view that it is an aggravating feature that you were on bail and I do not want to then doubly punish you for that matter either.

86     The base sentence therefore is the 18 months that is imposed on Charge 1.

Cumulation

87     I direct that two months of the sentence imposed on Charge 2 and four months of the sentence imposed on Charge 4, which is the attempt to pervert, will be served cumulatively upon the base sentence and upon each other. 

Total Effective Sentence

88     That translates then into cumulation of six months and these orders result in a total effective sentence of 24 months or two years imprisonment.

Non-Parole Period

89     I have to fix a non-parole period.  I can make no assumptions as to whether you will be released on parole.  In fact I am prohibited from speculating on that issue at all.  It will be entirely in the hands of the Adult Parole Board.  I fix a period of 12 months during which you will not be eligible for release on parole.

Section 18 Pre-Sentence Detention

90     You have been in custody already for a period of 207 days and that
s18 declaration is entered into the records of the Court.  So you get credit for your pre-sentence detention.  I have had regard to the other time you have served in prison on that other sentence I have described when considering the aspect of totality.

Section 6AAA

91 I have taken into account your guilty plea. If you had pleaded not guilty and been found guilty of these offences by a jury, I would have sent you to prison for three and a half years. I would have fixed a non-parole period of two years in such a setting and that declaration made under the provisions of s6AAA of the Sentencing Act is also to be entered into the records of the Court.  Let me just see if there are any other matters I need to attend to.

92     Any matters from your perspective, Mr Davidson?

MR DAVIDSON:  No, Your Honour.

HIS HONOUR:  From your perspective, Mr Woods?

MR WOODS:  No, Your Honour.

HIS HONOUR:  I will revise the reasons when they come back from VGRS and then I will have them made available to the parties.  That should not take too long, I would not have thought, but - a few days I guess.  Let me just see.  How long have we got the link for?

ASSOCIATE:  (Indistinct words).

HIS HONOUR:  All right.  We have got the link for a little while longer, Mr Woods, and I know it is not easy necessarily to tee up conferences with prisoners.  Are you wanting to actually utilise the link?  We can put you off and you can be a host and you can leave it when you want to leave it.  It will not be occurring in any circumstance where we have any input.  Do you want to have the use of the link to discuss with your client what has occurred and his rights in relation to it or are you going to do it separately?

MR WOODS:  No, I would be obliged by what Your Honour has suggested.

HIS HONOUR:  All right, that is fine then.  That is what we will do then, and so I think you will be the host and you will just be able to end the meeting when you want to end it.  So, Mr Hopcraft, you will stay put where you are, obviously, and
Mr Woods will have a conference with you - It will be confidential.  It will just be between you and he and he will be able to discuss what has occurred here today and your rights in relation to it, all right?

OFFENDER:  Oh, thanks, Your Honour.

HIS HONOUR:  So stay put there and he will have that conference with you shortly, all right?  So that completes the matter.

- - -