Director of Public Prosecutions v Ibrahim
[2022] VCC 1114
•18 July 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-01423
CR-20-00852
CR-20-00853
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| EROL IBRAHIM |
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JUDGE: | Her Honour Judge Gwynn | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 and 13 July 2022 | |
DATE OF SENTENCE: | 18 July 2022 | |
CASE MAY BE CITED AS: | DPP v Ibrahim | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1114 | |
REASONS FOR SENTENCE
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Subject:Criminal law
Catchwords: Conduct endangering person; prohibited person use firearm; intentionally damage property; burglary; theft; make threat to kill
Legislation Cited: Sentencing Act 1991; Family Violence Protection Act 2008; Firearms Act 1996.
Sentence: Total effective sentence of 32 months imprisonment; non-parole period of 22 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr B. Sonnet | Office of Public Prosecutions |
| For the Offender | Ms C. Foot (Plea) Mr J. McGarvie (Sentence) | Stary Norton Halphen |
HER HONOUR:
1Erol Ibrahim, you have entered pleas of guilty to charges on three separate indictments reflecting offending which occurred between 17 and 29 August 2018.
2Indictment number C1812167.1 contains charges of conduct endangering person, prohibited person use firearm, intentionally damage property and burglary.
3Indictment number J12279305.A contains charges of burglary, theft, and intentionally damage property.
4Indictment number J12279305.1B contains charges of make threat to kill and prohibited person possess firearm. Associated with this offending is also a related summary offence of possession of a prohibited weapon, in this case, a taser.
5In sentencing you for your crimes I must have regard to the maximum penalty for each of the offences you have committed. Charges of prohibited person possess firearm, burglary, theft, intentionally damaging property and make threat to kill each carry a maximum penalty of 10 years imprisonment. Conduct endangering persons carries five years imprisonment and possess prohibited weapon carries two years imprisonment.
6The circumstances of your offending were set out in a single document entitled 'Summary Of Prosecution Opening For Plea' dated 13 July 2022. This is an agreed document and represents your acceptance of all of the elements of the offences to which you have pleaded guilty, as well as the factual basis on which I am to sentence. I have had recourse to the full document which will be repeated only partially in my sentencing reasons.
The offending
7Turning now to the offending, and particularly Indictment C18112167.1.
8Your co-accused in this matter was Josip Buhac.
9The complainant was Osman Memisevic who resided in Garfield St, St Albans. Buhac and Memisevic were in dispute over Memisevic's payment for computer parts.
10At 10:45 pm on 17 August 2018, Buhac attended Memisevic’s address at his request and did so in your company. You were let into the property and entered a shed at the rear. Tommy Nguyen, a friend of Memisevic, was also present.
11Buhac demanded payment for the computer equipment which he had previously left at Memisevic's home. Memisevic said he didn’t want it and that Buhac should take it back. Buhac again demanded money. You then asked Memisevic why he hadn’t paid for the computer parts. He told you both to remain patient as he was literally working on his car in your presence.
12You then produced a loaded sawn-off rifle from the front of your pants and pointed it at Memisevic. At this point you were approximately 1.5 metres away from him and pointed the firearm directly at his right knee. You did not hold a firearms licence and were not authorised to be in possession of either a firearm or ammunition. It is these facts that form the basis of a Charge 1 on this indictment – conduct endangering person.
13Memisevic then indicated the presence of a CCTV camera in the shed. You then pointed the firearm at the camera and fired one shot forming the basis for Charge 2, prohibited person use a firearm. You were a prohibited person at the time because you were subject to a Personal Safety Intervention Order. You were prohibited from possessing a firearm under both the Family Violence Protection Act 2008 and under the Firearms Act 1996.
14Your shot missed the camera but put a hole in the aluminium roof of the shed causing approximately $100 worth of damage and forming the basis for Charge 3 on this indictment – intentionally damage property.
15You and Buhac continued to demand money. Memisevic told you his wallet was inside and used this as an opportunity to enter his premises, locking the door behind him. Shortly thereafter you and Buhac left the premises. The entire incident was captured on CCTV and, at a later stage, Memisevic and Buhac reached a mutual agreement putting an end to their dispute.
16On 25 August 2018 at approximately 8:45 am you returned to the address at Garfield Street, St Albans with an unknown male. You both entered the shed and removed boxes containing various tools, lifting them over the fence into a neighbouring yard. This forms the basis for Charge 4 – burglary.
17This activity was also captured on CCTV camera. Police viewed the footage and recovered the tools, returning them to Memisevic.
18When interviewed by police on 29 August 2018 you made partial admissions. You did admit to shooting at the CCTV camera.
Offence gravity and victim impact
19I am less concerned about the charge of intentionally damage property and note that damage was caused by the use of the firearm, the subject of a separate charge but resulting from the same action – the penalty should therefore be concurrent.
20No victim impact statement has been filed but given the presence and use of a loaded firearm your offending would have had to have been terrifying. The gun was pointed in the victim's direction, you were standing close by and in circumstances of animosity. The gun's subsequent use shows that it was capable of being fired. The fact that you were a prohibited person at the time shows a disregard for court orders.
21This dispute between Buhac and Memisevic was not your issue and you should not have been present. It is an understatement to suggest that a loaded firearm is inherently dangerous - risking injury or death.
22I note that your co-accused, Buhac, was sentenced for this offending by Her Honour then Judge Fox on 5 August 2021. I have had recourse to the reasons for sentence. It would appear that Buhac was prosecuted for charges of extortion with threat to inflict injury and an unrelated matter of attempt to pervert the course of justice. For the charge of extortion he was convicted and sentenced to 16 months' imprisonment to be followed by a 15 month community corrections order. The differing nature of his prosecution together with his personal circumstances means there is limited relevance to the parity principle.
23Your attendance at Memisevic's property also presented you with the opportunity to identify items that you would later take in the charge of burglary. This offence was easily identified and the property returned.
Indictment J12279305.A
24At approximately 7:15 am on 24 August 2018 you and another male went to an address in Longwood Avenue, Cairnlea in a vehicle registered to your mother.
25You pulled into the driveway of the address and CCTV footage captures you getting out of the vehicle, putting on gloves and a cap and to pull a hoodie over your head. You approached the front door and rang the doorbell which was not answered. The owner of the premises was at home in her bedroom. Her two children were also in their beds.
26You turned off the power to deactivate the CCTV cameras. You then removed the front door mat and a house address plate. You and your unknown co-offender went to the rear of the property and stole a pair of multi-grips.
27You then gained access to the garage via a side door, damaging its frame and lock. From the garage you and your co-offender stole an hydraulic steering arm from a boat and a custom made fishing rod with Shimano reel. This incident was observed by a neighbour who called police and these facts form the basis for charges this indictment, being Charge 1- burglary; Charge 2 – theft and Charge 3 – criminal damage. The value of the stolen items was estimated at $3,230. The cost of repairing the doorframe and lock for your victim's was approximately $100.
28You were interviewed by police in relation to these matters also on 29 August 2018 upon presenting yourself to the Caroline Springs police station. You made admissions to the offending and effectively told police that the offending was spontaneous in circumstances where your co-accused was, 'Hanging out, mate, so he is trying to get a quick earn.'
Offence gravity and victim impact
29This offending is slightly bizarre in terms of you removing a doormat and an address plate but you also took items of value in circumstances where you were trying to obtain money to buy drugs – whether that be for yourself or your co-accused. The damage to property has occurred whilst effecting the burglary and theft.
30The circumstances of the offending showed some forethought in cutting the power to the property and in your making some effort to disguise your appearance.
31Whilst no victim impact statement has been filed, your victim was well aware there were persons at her property in circumstances where she was at home with two children. I have little doubt that she would have been frightened in circumstances where the power was cut and the offending has occurred at family premises where its occupants were entitled to feel that they and their property were safe.
Indictment J12279305.B
32On 26 August 2018 security guard, Akech Manyiel, was working at the St Albans Hotel.
33At approximately 12:20 am you were observed by hotel security sleeping in the foyer of the hotel. Manyiel approached and awoke you asking you to leave. You became aggressive and refused to do so and started making racist remarks.
34On walking away you realised that you did not have your mobile phone and returned to the area where you had been sleeping. Manyiel asked what you were doing and you told him that you were looking for your phone. He retrieved a mobile phone that had been handed in earlier and asked you again to leave, suggesting that you go home to sleep. You again became aggressive.
35When Manyiel touched you on the shoulder you responded by lifting your shirt to reveal a taser tucked into the waistband of your pants. Manyiel could see your fingers on the weapon. You pulled the weapon up so that half of it was visible from the top of your pants and threatened to shoot Manyiel with the taser saying,
'If you touch me again, I will kill you. I will shoot you right here. I will follow you and kill your mother and father if you touch me again.'
36These facts form the basis for charge one on this indictment – make threat to kill.
37Understandably, Manyiel feared that you were going to remove the weapon and shoot him. He believed that the weapon was a firearm. I note the prosecution has resolved this charge on the basis that the weapon was in fact a taser.
38The hotel manager, Shane Egan, observed you to reveal the taser and heard you threatening to shoot Manyiel. He intervened, calming you. You then left the premises without further incident and the matter was reported to police. This incident was also captured on CCTV camera.
39A subsequent search of your premises, where you reside with your parents, located a sawn-off single barrel rifle in your bedroom. The rifle was loaded. These facts form the basis for Charge 2 – prohibited person possess firearm. Police also located a taser forming the basis for related summary Charge 17 – possess prohibited weapon.
40These matters were also included in your interview with police on 29 August 2018 when you had presented yourself to the Caroline Springs Police Station. You admitted in that interview to being in possession of the firearm and you stated you had it for your own protection.
Offence gravity and victim impact
41Manyiel was simply going about his job when the confrontation with you occurred. Whilst again no victim impact statement has been filed the circumstances of your offending on this occasion would have also been frightening.
42I accept that the gravity of this offence is slightly reduced because the item in your possession was a taser, as opposed to a firearm, reducing the potential for harm. However, you gave every indication that you were prepared to use it. In the mind of your victim operating as a security guard, he and other persons in the vicinity were at risk. Thankfully you were able to be calmed and left without further incident.
43This was the second occasion, in a short space of time, when it would appear you were out in public and armed in some way.
44As we have heard, when police did locate the actual sawn-off rifle at the premises you share with your parents, it was loaded.
Prior history
45You do have an admitted prior criminal history which commences in 1999 and between then and the offending the subject of the three indictments, there are some 19 court appearances.
46Relevantly, on 2 June 1999, the Broadmeadows Magistrates' Court fined you for a charge of recklessly cause injury.
47On 11 January 2011, the Sunshine Magistrates' Court convicted and sentenced you to three months' imprisonment, and wholly suspending that for a period of 12 months for a single charge of intentionally cause injury. You were breached for non-compliance with this order by the Melbourne Magistrates' Court on 20 February 2012 and the term of the suspended sentence, that is three months, was wholly restored.
48On 27 January 2012 you received a sentence of five years' imprisonment with a non-parole period of three years from the Melbourne County Court for charges of armed robbery, aggravated burglary and handling stolen goods. You were fined the amount of $300 for each charge in relation to two charges of possessing a drug of dependence.
49Your offence history otherwise is comprised of street offences such as unlawful assault and the use of threatening words, as well as the possession of weapons, possession of drugs, driving offences and some dishonesty.
50I note that I have been provided with your criminal history that is subsequent to August 2018. On 9 November 2018 your appeared at the Sunshine Magistrates' Court in relation to charges of affray, unlicensed driving, drive whilst disqualified and other minor traffic offences. You received a sentence of 37 days' imprisonment in combination with financial penalties and orders against your driver's licence.
51On 12 November 2019, you appeared at the Heidelberg Magistrates' Court in relation to charges of criminal damage, threat to inflict serious injury and acting prejudicial to the safety of a person in jail. You were convicted and sentenced to one month's imprisonment.
52These terms have impacted on your available pre-sentence detention and are relevant to the principle of totality.
53You then have the court appearances on 13 September 2021, 20 December 2021 and 6 March 2022 in relation to family violence offending. On each occasion you were convicted and fined.
54Forms of violence are littered through your criminal history but you do not have a history particular to firearms and only have two prior matters involving burglary.
55Whilst not to be punished for your criminal history a second time, that history is relevant to the assessment to be undertaken by me as to the weight to attach in sentencing to the principles of specific deterrence, denunciation and protection of the community. It is also relevant as to the assessment as to your prospects for rehabilitation.
Personal circumstances
56There is some explanation for this offending, the subject of the three indictments, in your personal circumstances.
57Numerous reports have been tendered on your behalf which set out your background and other relevant matters. There were some general inconsistencies in the personal information contained therein.
58You were aged 37 years at the time of his offending and are now aged 41.
59You were born in Sydney of Turkish Cypriot background. Your parents remain married and are supportive of you. You have an older sister whom is also supportive.
60Your family moved to Melbourne when you were around six years of age.
61You left school midway through Year 9 and then worked in your parents' bedding business performing a range of duties including forklift driving and labouring type tasks.
62You suffered a serious motor vehicle accident in the early 2000s and have a limited work history since that time.
63You have had a long-standing involvement with illicit drug use. You first used cannabis at age 16 years and then moved to other forms of recreational drugs which commenced with casual use and then escalated. You were using heroin with your then partner, Melissa, from the age of 24 years.
64In 2006, you and Melissa, left a drug rehabilitation centre in Perth without completing the program. You obtained accommodation and apparently threw yourself from a third floor balcony. Surprisingly, you only suffered relatively minor injury, as I understand it, a broken leg.
65Whilst undergoing the sentence you received on 27 January 2012 you were the victim of an assault on 3 August 2012 whilst housed at Barwon prison. You were hit from behind twice with what was described as a 'rock in a sock.' You sustained a depressed skull fracture with a pneumocephalus and a right frontal contusion. You were released on parole in April 2014 and were initially drug free. I am told that you successfully completed your parole period.
66Again, whilst there is some inconsistency in the reported information, you apparently returned to drug use, namely ice, in 2016.
67A report from Professor Stephen Davis, Neurologist, dated 8 February 2017 was tendered. In his opinion you suffered a significant head injury in August 2012 and there was evidence of cognitive impairment, particularly to memory and certainly a significant organic contribution to behavioural change. He also anticipated psychiatric difficulties. Your then partner, Lisa, had attended the appointment with Professor Davis and had described a significant change in your personality and volatility. Professor Davis expressed concern that this volatility would make it difficult for you in any workplace. You had also become paranoid about your appearance.
68A report authored by Dr Benjamin Harris, Neuropsychologist, and dated 31 January 2018 was also tendered on your behalf. Your behaviour had left you paranoid and irrational and you had lost much of your friendship group. You reported significant problems with memory. Your intellectual function was assessed as being within the borderline to low average range. In Dr Harris' opinion there was ample evidence that you suffered a brain injury which had produced very significant changes in many aspects of your functioning. Subsequent to the assault in August 2012, you had become impulsive, emotionally driven and your actions poorly planned. The mechanism of the injury and its location was consistent with you having sustained significant impairment to your ability to regulate your emotional and behavioural responses. You had minimal insight to the difficulties you faced.
69You had had a long-standing relationship with Lisa Wyka but this relationship deteriorated and finished in late 2017 due to your behaviour linked to the head injury you received in August of 2012. In response to the demise of that relationship you attended her house while she was not at home and attempted suicide in order to, 'send her a message.'
70On 23 June 2018 Ms Wyka and a co-accused, each armed with a shotgun, attended at an address at which you were located and discharged a number of rounds each through the front door. You managed to escape incurring some injury whilst so doing but without injury from either shot gun. You initially did not know who had been responsible for the shooting. This event had left you paranoid and you had become prone to carrying a gun yourself for your sense of personal safety. The offending, the subject of the three indictments before me, all postdate the shooting by a matter of months. Whilst this explains your decision-making at the time in part, in terms of your perceived need to carry a weapon, it raises obvious concerns about community protection.
71A forensic psychological assessment authored by Dr Laura Anderson and dated 9 July 2020 was also tendered. She had had access to the reports from Professor Davis and Dr Harris. In her opinion you presented with a complex and multi-faceted psychological profile. You were dependent, in the sense of your psychological safety, on whomever was your romantic partner at the time. Dr Anderson saw this presentation as being in existence prior to you being assaulted in custody in 2012. That assault however, had exacerbated your underlying personality constructs and lead to increased volatility in your behaviour. Your drug use was a maladaptive means of coping with and/or avoiding emotional distress.
72In Dr Anderson's opinion you presented with a psychological sequelae which she associated with post-traumatic stress disorder in relation to your previous assault in custody, but also relating to what was then a relatively recent incident in which you were shot at by your previous partner.
73She saw a clear association between your psychological profile, your drug and alcohol use and your offending behaviour. On top of your established emotional and behavioural dysregulation, at the time of your offending in August 2018, you were experiencing an acute traumatic stress response and one which was significantly more extreme than a typically functioning person would experience in those circumstances. Your behaviour was driven by immediate emotional response rather than rational thinking and problem-solving.
74There does appear to be a connection in the sequelae of events you have experienced, the impact of those events on your psychological and cognitive well-being - in circumstances where your level of intellectual function was already low - such that there is a basis to form the view that your moral culpability for your offending in August 2018 should be reduced.
75As I understand it, the Crown agree with the submission made on your behalf that the expert evidence would also allow for some reduction of the weight which should otherwise attach to both general and specific deterrence.
Delay and plea of guilty
76Given the offending the subject of the three indictments occurred in August 2018 and you are being sentenced for that offending in July of 2022, there has clearly been a delay.
77You were charged and remanded for the offending in August of 2018.
78A committal hearing listed in February of 2019 was unable to proceed and was relisted on 30 April 2019. It was unable to proceed on that day and was relisted on 12 June 2019 at which time the committal hearing was adjourned, part heard, to July of that year. You were then committed to the County Court for an initial directions hearing.
79You were granted bail on 21 August 2020 and had a trial listed on 24 August 2020 which was vacated due to COVID-19 restrictions. There were on going attempts between the parties to resolve matters which they finally did in February 2022 at which time your plea hearing was fixed for 8 July 2022.
80I accept that these matters have effectively been hanging over your head for an extensive period of time which would be a stressful reality for anyone and certainly would have been for you. This is a factor I also take into account.
81In terms of your plea of guilty the Sentencing Act 1991 obliges me to take into account the stage at which you entered your plea. Your matters resolved, it would appear, after extensive negotiations in what would have otherwise meant that there would been three separate trials.
82Given the matters have all resolved to a significantly less serious set of charges than that on which you are committed to stand trial, I still consider your plea of guilty to be at a relatively early stage.
83There is clear value in saving the witnesses the need to give evidence and relive traumatic events and there is extra value in saving the community the time and expense of contested proceedings.
84In addition, your decision to plead guilty in the context of the COVID-19 pandemic has additional value as it provides certainty and finality to all parties in circumstances where the court's operations have been disrupted and many trial dates remain as yet unfixed.
85These factors will also be taken into account in your favour.
86Whilst remorse is somewhat harder to discern there is some explanation for that in the protracted negotiations and your psychological and cognitive presentation.
Prospects for rehabilitation
87As a direct consequence for your offending you spent some 657 days in custody. You were released onto bail in August 2020. In part, some of your remand was during the Corrections response to the COVID-19 pandemic where I accept, in general terms, there was less access to treatment programs, rehabilitative programs, freedom of movement and to in-person visits from friends and family. Prisoners were also required to quarantine for 14 days upon reception. All of this makes both the remand and the sentenced prisoner experience more difficult than it would otherwise be.
88I am told that you were remanded for unrelated matters in February 2022. These matters are yet to be resolved.
89Otherwise, there appears to have been a number of positives between your release on bail in August 2020 until your more recent remand.
90From your release on bail you did engage with Dr Anderson on a fortnightly basis. In correspondence, dated 7 July 2022, Dr Anderson writes that you engaged well and:
'Made significant progress in terms of developing insight into his emotional attachment structure and patterns of behaviour.'
91Whilst on bail you apparently returned regular clean urine screens and were reporting five days a week to police on bail.
92You also managed to get your traffic control ticket and worked for five months on the rail lines. You then obtained a rigging job in a friend's business for a period of some six months. Rigging work was something for which you particularly held an interest and given some of your cognitive difficulties, your ability to sustain employment in this field and to maintain your other commitments, is commendable.
93Your more recent alleged offending and subsequent remand was apparently associated with an intimate relationship you had at that time and a return to drug use. You are understandably disappointed in yourself but have at least had the opportunity to see what else life offers.
94Given your previous ability to comply with a parole order and recent efforts to maintain employment and a drug-free status it would appear that prospects for your rehabilitation remain.
95You continue to have the support of family who were present for your plea hearing and today's sentencing. You understand that you can return to work fairly easily once you have the opportunity to do so.
96You are also able to return to the assistance of Dr Anderson. She has been allocated your Case Manager under the relatively new Prison Disability Support Initiative. She had opined in her report of July 2020 that you do have the capacity to develop appropriate coping strategies, but will need clinical support to do so. Obviously that work had commenced when you were in the community and is in a position to continue to do so. There is clear value in established therapeutic relationships being able to continue, particularly where there is evidence that they are being effective.
Multiple indictments
97When a court is presented with several indictments simultaneously, when formulating sentence, the usual practice is to impose sentences in relation to each charge on each indictment separately, along with associated orders for cumulation or concurrency that operate within the individual indictments, then formulate orders for cumulation between the indictments and finally specify a non-parole period or other associated orders. The court should then announce the result of the various directions.
98In your case it is relevant to that exercise, and importantly to the principle of totality, that your offending, the subject of the three indictments, occurred over a period of approximately 12 days.
99The totality principle requires that where an offender is being sentenced to multiple terms, or is otherwise to serve multiple sentences, then the sentencer should ensure that the total sentence remains one which is 'just and appropriate' for the whole of the offending. As referred to earlier this principle must also be factored into the equation, with the brief terms of imprisonment you have served interfering with your available pre-sentence detention.
100I am just going to check with the parties now before I turn to sentencing, that there haven't been any matters arisen, given I have been reading that like a bull-at-a-gate.
101MR SONNET: No, Your Honour.
102HER HONOUR: Mr McGarvie?
103MR McGARVIE: Pre-sentence detention, it just seems to be a different number in the Crown opening, 724. I am not sure if I have got that upside down.
104HER HONOUR: I believe it was amended at the time of the plea. I hope I have got the figure right.
105MR McGARVIE: It may be different. Perhaps Mr Sonnet has another one.
106MR SONNET: I think from my memory, Your Honour, there was a difference of two days between the parties. I provided the calculation period to Your Honour and then left it in Your Honour's hands as to the calculation, but there was no set agreement between the parties.
107HER HONOUR: I thought we had got a little bit further than that Mr Sonnet.
108MR SONNET: I am happy to be corrected, Your Honour. I think, from my recollection, I think Your Honour was favouring the Crown's approach, but - - -
109HER HONOUR: Well I thought that Ms Foot had been got over the line, to use a better phrase. I will just check.
110MR SONNET: I remember Your Honour making a comment about the number of days in November and that perhaps was strengthening the Crown's position.
111HER HONOUR: Yes. Well it is obviously important that I get it right. My notes say 657 days.
112MR McGARVIE: I am sorry, Your Honour. I do not have a note on what Ms Foot had contended before Your Honour, it is just that in the summary that I have got, the amended summary, the PSD is calculated at 724 days, and I just noticed that that variation, that is all. It may be that that calculation does not account for those two periods where Mr Ibrahim was undergoing a sentence, but I am just not sure.
113HER HONOUR: Well, I think, Mr McGarvie, that that is what happened. The 657 resulted as a deduction - - -
114MR McGARVIE: From those two periods of imprisonment.
115HER HONOUR: - - - of the two intervening sentences. Does that accord with your recollection, Mr Sonnet?
116MR SONNET: Yes, I think - I am just calling up my plea submissions document - it was corrected and I made a point of it during the opening and it is set out at paragraph 13.
117HER HONOUR: All right.
118MR McGARVIE: I am happy with that. I absolutely rely on Mr Sonnet. I have not printed off that document, so it is perhaps my confusion, Your Honour.
119HER HONOUR: Well, we all absolutely rely on Mr Sonnet.
120MR SONNET: I would not go that far, Your Honour, but I do note that if there is any issue, it can always be brought back on a s18 application. It is very straight forward, it can be brought back to the Court quickly.
121HER HONOUR: Well let us hope we do not have to do that, but that is my clear note. So are you relatively happy for me to continue?
122MR McGARVIE: Look I am, Your Honour.
123HER HONOUR: All right, thank you. All right, I am now in effect turning to the sentencing exercise.
Sentencing
124I make the ancillary orders as sought for forfeiture of the Taser and other scheduled items.
125In terms of the basic purposes for which a court may impose a sentence they are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community. In sentencing, I must have regard to a range of matters which include the seriousness of the offending, your culpability for it, your personal circumstances and those of any victim.
126I am also required to balance the interest of the community in denouncing criminal conduct with the interest the community clearly has in seeking to ensure, where possible, that offenders are rehabilitated and are reintegrated into society.
127I have taken into account the sentencing guidelines referred to in section 5 of the Sentencing Act 1991 where relevant to your case. I have taken into account the current sentencing practices for the offences to which you have pleaded guilty as well as the principles of both totality and proportionality.
Indictment No C18112167.1
128Charge 1 – conduct endangering persons - you are convicted and sentenced to 8 months' imprisonment, 2 months of which will be cumulative on the base sentence on this indictment.
129Charge 2 – prohibited person use firearm- you are convicted and sentenced to 18 months' imprisonment, which is the base sentence on this indictment.
130Charge 3 – intentionally damaging property- that is part and parcel of the use firearm and accordingly you are convicted and discharged.
131Charge 4 - burglary - you are convicted and sentenced to 10 months' imprisonment, of which 2 months is cumulative on the base sentence and other sentences imposed.
132If my maths serves me correctly, which it rarely does, the total effective sentence on this indictment is 22 months' imprisonment.
133MR SONNET: Sorry, Your Honour, can I just ask you to pause?
134HER HONOUR: Yes.
135MR SONNET: I just missed the sentence for burglary, Your Honour. It was my fault, I got distracted.
136HER HONOUR: No. Ten months.
137MR SONNET: Ten months, thank you.
138HER HONOUR: Two months cumulative.
139MR SONNET: Thank you.
140HER HONOUR: I am turning now to Indictment No J12279305.A
141Charge 1 – burglary - in my view this occurred in more serious circumstances than the one prior and of course was the second in time, accordingly you are convicted and sentenced to 18 months' imprisonment.
142Charge 2 -theft - convicted and sentenced to 6 months' imprisonment of which 2 months is cumulative on Charge 1, which is the base sentence.
143Charge 3 – intentionally damage property - you are convicted and sentenced to 1 month. Given the circumstances in which that occurred, that is concurrent with the other sentences imposed.
144Accordingly, the total effective sentence on this indictment is one of 20 months' imprisonment.
Indictment No J12279305.1B
145Charge 1 – make threat to kill – you do have a relevant history for threats and the circumstances are extremely concerning. You are convicted and sentenced to 12 months' imprisonment, 4 months of which is cumulative on the base sentence on this indictment.
146Charge 2 – prohibited person possess firearm - you are convicted and sentenced to 18 months' imprisonment which is the base sentence on this indictment.
147Summary charge 17 – possess prohibited weapon (Taser) - you are convicted and sentenced to 1 month imprisonment, which is cumulative on the base sentence and other sentences imposed this day.
148Therefore the total effective sentence on this indictment is one of 23 months' imprisonment.
149Indictment No J12279305.1B forms the base sentence for the three indictments.
150I propose to cumulate 6 months of Indictment No C1812167.1, and 3 months of Indictment No J1279305.A, on Indictment No J12279305.1B.
151The head sentence is therefore one of 32 months.
152I fix a period of 22 months before you are eligible for parole and reckon 657 days as having already been served.
153Section 6AAA of the Sentencing Act 1991 requires me to state the sentence I would have imposed had you not pleaded guilty to the charges. If not for your pleas of guilty you would have been sentenced to four years and six months with a minimum of three years and eight months before being eligible for parole.
154Gentlemen, I do encourage you to check my mathematics and if you do need to double check the pre-sentence detention, Mr McGarvie, do so.
155MR McGARVIE: Yes, Your Honour.
156HER HONOUR: Otherwise if there is nothing arising at this stage I will give you the opportunity to speak privately with your client and I will otherwise close the Court till 10.30 tomorrow.
157MR McGARVIE: Thank you, Your Honour. Your Honour, can I just get that final orders for cumulation on the three separate indictments? I just missed that.
158HER HONOUR: That is all right. As I said, I was going like a bull at a gate. Just let me find it now, sorry. Do you need the sentences on the individual indictments, or just the cumulation between the three?
159MR McGARVIE: Just the cumulation between the three, Your Honour, I just did not catch that.
160HER HONOUR: All right, now what I will call the third indictment was the base sentence, that was 23 months.
161MR McGARVIE: Twenty-three, yes.
162HER HONOUR: So six months of the first indictment and three months of the second indictment were cumulative on each other and on that base sentence. So with any luck that gives a head sentence of 32 months and I fix 22 months before being eligible for parole, reckoning the 657 days.
163MR McGARVIE: As the Court pleases.
164HER HONOUR: So as I said, it does pay to double check my maths, Mr McGarvie.
165MR SONNET: I have checked the calculations; they all appear correct, Your Honour.
166MR McGARVIE: Yes, Your Honour.
167HER HONOUR: I am very grateful, Mr Sonnet, thank you very much. All right then I will go back to Plan A. I will disappear until tomorrow, Mr McGarvie, and leave you to speak privately with your client and his family should you wish to do so.
168MR McGARVIE: As Your Honour pleases.
169MR SONNET: As Your Honour pleases.
170HER HONOUR: Thank you very much.
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