Director of Public Prosecutions v Inkster-Delaney
[2021] VCC 2009
•2 December 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-01426
AP-21-0909
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CALLAN INKSTER-DELANEY |
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JUDGE: | Leighfield | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 September 2021, 26 November 2021 | |
DATE OF SENTENCE: | 2 December 2021 | |
CASE MAY BE CITED AS: | DPP v Inkster-Delaney | |
MEDIUM NEUTRAL CITATION: | [2021] VCC | |
REASONS FOR SENTENCE
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Subject:Criminal Law
Catchwords: Sentence – burglary – theft – theft of firearm – prohibited person possess firearm – make threat to inflict serious injury – causing injury recklessly – possession drug of dependence – appeal against sentence – theft reckless conduct endangering serious injury – assault-related offences in circumstances of family violence – early plea of guilty – deprived background – drug use – relevant criminal history – young offender – impact of Covid-19
Cases Cited:Bugmy v The Queen [2013] HCA
Sentence: Total effective sentence on indictment and related summary offences 23 months and 30 days imprisonment – total effective sentence on appeal 13 months and 30 days imprisonment – total effective sentence across all matters 2 years and 6 months with a non-parole period of 16 months
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr Paul Stefanovic | Office of Public Prosecutions |
| For the Accused | Mr Mark Sturges | Chester Metcalfe & Co |
HER HONOUR:
Introduction
1Callan Inkster-Delaney, you have pleaded guilty to one charge of burglary (charge 1), one charge of theft (charge 2), one charge of theft of firearm (charge 3), one charge of being a prohibited person carrying a firearm (charge 4), two charges of making threats to inflict serious injury (charges 5 and 6), one charge of recklessly causing injury (charge 7), and one charge of possession of a drug of dependence (charge 8). The maximum penalty for theft of a firearm is 15 years’ imprisonment; for burglary, theft, and being a prohibited person carrying a firearm is 10 years’ imprisonment; for making threats to inflict serious injury and recklessly causing injury is 5 years’ imprisonment; and for possession of a drug of dependence is 1 year imprisonment or a fine in the amount of 30 penalty units.
2You also consented to this court hearing, and pleaded guilty to, two related summary offences of unlawful assault contrary to section 23 of the Summary Offences Act 1966 (charges 17 and 21), which carry a maximum penalty of 3 months’ imprisonment or a fine in the amount of 15 penalty units.
3These offences all arise from an incident which occurred on the evening of 27 September 2019. At the time you were 20 years of age.
4Additionally, I have before me an appeal against a sentence which was imposed upon you at the Horsham Magistrates’ Court on 4 August 2021. I have set aside the orders of the Magistrates’ Court in respect of that appeal. Further, I have struck out charge 9 on application by the prosecution to withdraw that charge. You have pleaded guilty before me to the remaining charges which are one charge of recklessly causing injury (charge 1), two charges of unlawful assault contrary to the Summary Offences Act 1966 (charges 4 and 13), one charge of theft (charge 5), two charges of unlicensed driving (charges 7 and 12), one charge of reckless conduct endangering serious injury (charge 10), one charge of common law assault (charge 14), and three charges of committing an indictable offence whilst on bail (charges 2, 6 and 11). The maximum penalty for theft is 10 years’ imprisonment; for recklessly causing injury, reckless conduct endangering serious injury, and common law assault is 5 years’ imprisonment; for unlicensed driving is 6 months imprisonment or 60 penalty units; and for committing an indictable offence on bail is 3 months’ imprisonment or 30 penalty units. In respect of the charges of unlawful assault, ordinarily the maximum penalty is 3 months or 15 penalty units. However, pursuant to s24(1)(a) of the Summary Offences Act 1966, the penalty for unlawful assault of a female is 6 months’ imprisonment or 25 penalty units if in the opinion of the Court, the assault is of such an aggravated nature that it cannot be sufficiently punished under section 23.
5The offences subject of the appeal arise from incidents committed between 1 February 2021 and 2 March 2021. At the time of these offences you were 22 years of age.
Circumstances of the Offending – Indictment and Related Summary Offences
6The full circumstances of your offending in respect of the offences on the indictment and the related summary offences is set out in the ‘Summary of Prosecution Opening for Plea’ dated 17 August 2021 which was tendered as Exhibit A on the plea. In shorter compass, on 27 September 2019 at approximately 12.30am, you walked up the driveway of a property in Horsham which belonged to the Franks family. At the time you had a pair of scissors with you – which you later told police you were going to use to cut a piece of hose to make a bong with.
7You opened a partially closed garage roller door and went in to the garage and shed area of the property (charge 1 – burglary). Whilst in the shed, you removed a pair of pliers and a small tin of .177 calibre pellets (charge 2 – theft). You also gained entry to the locked firearms cabinet and removed a .177 Air rifle (charge 3 – theft of firearm). The rifle had no bullets or pellets in it. At the time you were a prohibited person by virtue of the definition in the Firearms Act and accordingly were not allowed to possess or carry a firearm (charge 4 – prohibited person carry a firearm).
8Whilst you were still in the shed, Bodhi Franks (who was in his bedroom in the house) heard a noise and went outside to see if someone was in the shed. He could see soft light coming from the shed and so he ran inside and woke up his brother Dustin Franks. Both Bodhi and Dustin walked up the driveway and Dustin contacted 000. Bodhi Franks used the torch on his mobile phone and shone the light towards where you were crouching down behind a motorbike trailer in the shed. As the light hit you, you jumped up from behind the trailer, pointed the firearm at Bodhi Franks and shouted ‘Don’t fucking move. Don’t come any closer. I have got a gun and I’ll shoot you’ (charge 5 – make threat to inflict serious injury). This terrified Bodhi Franks and he backed away from you.
9You then walked out of the shed, whilst continuing to point the firearm at Bodhi Franks, and walked towards Dustin Franks who was further down the driveway and on the phone to 000. You walked up to Dustin Franks, stopping approximately 1 metre away from him, and pointed the gun to his head. You said to him ‘Let me past or I will fucking shoot you’. You then repeated this two or three more times (charge 6 – make threat to inflict serious injury). Dustin Franks reached out and grabbed the firearm, and as he did so, the gun broke open. Dustin Franks then wrestled the gun from your grip, and you ran down the driveway, attempting to get away.
10Dustin and Bodhi chased after you and wrestled you to the ground. You continued to fight with Bodhi Franks who sustained some swelling, bruising and grazing as a result (related summary charge 17 – unlawful assault). Dustin Franks then hit you a couple of times with the butt of the gun to stop you from fighting and trying to get away.
11There was a significant ongoing tussle between the three of you which included Dustin Franks pushing you into his car causing a dent to the vehicle, and you putting your fingers into Dustin’s mouth and eyes. Further members of the Franks family then ran outside to assist including Jordan Franks (a younger brother), Rachelle Franks (Dustin, Bodhi and Jordan’s mother) and Gary Franks (their father). When Gary Franks came outside he noticed that you had the scissors in your hand and your hands were very bloody.
12Whilst you were being held down by members of the Franks family, their neighbours, Wesley Davidson and his son James, walked over to see if they could help. As Wesley Davidson reached to grab your arms, you lashed out at him and squirrel gripped him in the genital region causing injury to his testicle (charge 7 – recklessly cause injury). James Davidson and Wesley Davidson continued to restrain you and while doing so, you freed your right arm and punched James Davidson to the jaw causing pain. You then kicked out and again connected with James Davidson’s jaw, causing further pain (related summary charge 21 – unlawful assault). The Davidsons continued to restrain you until the police arrived, whereupon you were arrested and taken to the Horsham Police Station to be interviewed.
13Upon arrival at the police station you were searched and police located a small white Valium-branded tablet in your property (charge 8 – possess a drug of dependence).
14Upon being interviewed by police you admitted that you had trespassed and said that your reason for entering the property was to get a piece of hose to make a bong. You said that you ran towards the shed when you heard a door open, and then turned and ran the other way. You said that you were hit with a rifle across the head and ended up being attacked by the people from the house who were accusing you of stealing things. You denied going into the shed. You also denied stealing anything from the shed. You admitted that you might have touched the gun, but said that you did so in self-defence to stop the people from smashing you. You did admit having grabbed Mr Davidson in his genital region. However, you maintained that your actions on the evening were in self-defence.
15Subsequent to your interview, you were remanded and remained in custody until you were granted bail on 3 February 2020.
16As a result of you squirrel gripping him in the genital region, Mr Davidson suffered significant laceration injuries to his groin and scrotum and had to undergo surgery to have a large haematoma cleared out. According to surgeon Dr Adam Boyt, the injuries were not threatening but could have resulted in permanent disability. Dr Boyt noted that Mr Davidson had made a good recovery from the injury and should have no lasting permanent injury or disability.
Victim Impact
17On the plea I received victim impact statements from each of Wesley Davidson (Exhibit B), James Davidson (Exhibit C), Dustin Franks (Exhibit D), Bodhi Franks (Exhibit E), Gary Franks (Exhibit F) and Rachelle Franks (Exhibit G). I have read and had regard to the contents of each of those statements.
18I do not intend to go into detail about the content – especially in circumstances where the authors of the statements requested that they not be read aloud in court – however, it is apparent from those statements that your actions have had a significant impact on a number of people. You have caused physical, psychological and emotional pain to the victims of the offending, and, understandably given the nature of this incident, have caused each and every one of them to feel unsafe in their own homes, especially at night.
19I have taken the contents of each of the victim impact statements into account in sentencing you on these offences.
Circumstances of the Offending – Appeal Offences
20Turning now to the offences the subject of the appeal. As at 1 February 2021, you were in a relationship with 23 year old Toni Nichols[1]. You were also on bail in relation to the indictment offences.
[1] A pseudonym
21On 1 February 2021, there was a verbal argument between yourself and Ms Nichols which escalated into a physical incident. Ms Nichols attempted to hold you down to protect herself and whilst she was doing this, you bit her on the stomach leaving teeth marks and a bruise. This conduct constitutes charge 1 (recklessly causing injury) and charge 2 (commit indictable offence whilst on bail).
22On 24 February 2021 there was a further incident involving yourself and Ms Nichols. At 3pm, you began texting Ms Nichols and threatened to kill both yourself and her cat if she did not get back together with you. Ms Nichols arrived home at 5.40pm to find you waiting for her. A verbal argument started between the two of you and Ms Nichols told you to ‘Fuck off’. You then turned on her and punched her ten to fifteen times to the head area (charge 4 – unlawful assault). Ms Nichols had hold of her satchel to try and protect herself. You grabbed it off her, went to your car and drove off with the satchel (charge 5 – theft; charge 6 – commit indictable offence whilst on bail). The satchel contained her mobile phone case, driver’s licence and makeup, and had a value, including contents, of $260. You did not have a driver’s licence at the time of this offending (charge 7 – unlicensed driving).
23On 2 March 2021, at 5.51am you made a phone call to Ms Nichols and arranged to meet with her at Three Bridges Rd in Haven. At that location the two of you were driving from opposite directions and stopped and spoke to each other through the windows of the cars. The conversation resulted in another argument and you got out of your car and took Ms Nichols’s keys from her ignition. You then held her door closed as she tried to get out of her car. You then went back to your car and started to drive away. As you did so, Ms Nichols jumped on the bonnet of your car. You kept driving and hit a hump in the road at speed which caused you to lose control of the vehicle and resulted in Ms Nichols being thrown from the vehicle (charge 10 – reckless conduct endangering serious injury and charge 11 – commit indictable offence whilst on bail). She landed beside the car on her back.
24You then kept driving along the road before turning around and driving back to Ms Nichols and her vehicle. You told Ms Nichols to get in your car but she ran off. You chased her, pulled her to the ground and punched her in the back of the head (charge 13 – unlawful assault).
25Ms Nichols then got in your car, and you drove back towards her address. Whilst driving the argument continued and you accused Ms Nichols of sleeping with her friend’s father. When she denied this, you backhanded her to her forehead (charge 14 – common law assault).
26Ultimately Ms Nichols got out of your car when you stopped at an intersection in Horsham. You then drove off, and she returned home. Your conduct in driving your vehicle throughout the entirety of this incident is the subject of charge 12 – unlicensed driving.
27You were arrested by police at 10.15am in Horsham, taken back to the police station and interviewed. During the interview you denied assaulting Ms Nichols on 1 February and 24 February and stated that the dog bit her, not you. You confirmed that you had met with Ms Nichols on 2 March 2021, but said that you had blacked out when the assaults and driving occurred and that you only remember being arrested by the police.
28You were remanded following the interview and have remained in custody since that date. As a result of your various periods on remand and serving sentence, you have a total period of 405 days of pre-sentence detention; 130 days (from 27 September 2019 to 3 February 2020) being purely referable to the indictment offending; 115 days (from 2 March 2021 to 24 June inclusive) being purely referable to the appeal offences (bail having been revoked by me on the indictment offences on 25 June 2021); and 160 days (from 25 June 2021 to 26 November 2021) referable to all offending.
29I note that Ms Nichols declined to make a victim impact statement – but I agree with prosecuting counsel that there is no doubt that each of these incidents would have been frightening experiences for Ms Nichols and would have had a psychological impact upon her at least in the short term.
Prior Criminal History
30You have a considerable prior criminal history for someone so young. You first came before the court as a thirteen year old in 2012, and between then and the time of this offending, you have had repeated appearances for relevant offences including charges of burglary, theft, theft of firearm, injury and assault-related charges, threats to inflict serious injury, being a prohibited person possessing a firearm, reckless conduct endangering serious injury and committing indictable offences whilst on bail. You have been the subject of multiples orders in the Children’s Court jurisdiction which you have breached – including probation orders and youth supervision orders, and you have served a number of terms in Youth Justice Centre detention.
31Your most recent court appearance prior to the indictment offences was at the Horsham Magistrates’ Court on 28 June 2018 where you received 10 months’ detention in a Youth Justice Centre in respect of charges of reckless conduct endanger serious injury, theft, criminal damage, and assaulting and resisting an emergency worker on duty. You also received a 12 month community correction order under which you were required to perform 100 hours of community work in respect of those offences, and additional offences of cultivating cannabis, possession of cannabis, possession of cartridge ammunition, storing an unauthorised explosive without approval, and transferring a poison to an unlabelled container. You had already served 86 days in custody prior to being sentenced and it would seem from a combination of your Corrections Victoria Sentence/Remand Report and your Youth Justice Order History report that you were initially released on youth justice parole on 17 September 2018. You were then returned to Youth Justice Centre for a period of 5 days in October 2018; and it would appear that you faced a further period of detention (of an undetermined length) from 23 April 2019 – you having been remanded firstly into adult and then youth custody on that day. It is unclear on the material before me when you were ultimately released from detention, but what is clear is that you had been back in the community for less than 12 months at the time of the indictment offences. Corrections has however confirmed that you did complete the 100 hours of unpaid community work imposed upon you under your community corrections order.
Guilty Pleas / Remorse
32Despite the indictment matter having been on foot since 27 September 2019, it was accepted by prosecuting counsel that your pleas of guilty can still be considered to be early pleas. You have made efforts to resolve this matter from an early stage, commencing with a plea offer on 28 November 2019 which was prior to the first committal mention. The matter did not resolve despite negotiations and eventually, after significant delay caused by the impact of the pandemic, proceeded to a contested committal hearing on 29 and 30 October 2020. You were committed to stand trial and the matter came before me for pre-trial conference on 4 May 2021.
33The main charges in contention at the pre-trial conference were a charge of aggravated burglary and a charge of intentionally causing serious injury to Mr Davidson. The matter subsequently resolved with those two charges being withdrawn, and you indicating an intention to plead guilty to the charges now before the court. You were ultimately arraigned on the current charges on 25 June 2021.
34I agree with prosecuting counsel’s concession that your plea, whilst entered a long time down the track and in the aftermath of committal, should still be considered in the circumstances to be an early plea of guilty – albeit not at the very earliest stage. Your plea facilitates the course of justice and has utilitarian value, especially in the current climate of the pandemic and the significant impact that Covid-19 has had on the efficient running of the criminal justice system. I also accept that your plea of guilty is reflective of a level of remorse for your conduct despite your initial partial denials when interviewed; and your comment to Dr Downing that while you should not have done what you had done and no-one needed to get hurt, that you had undertaken the current plea because it provided the best deal.
35Your pleas of guilty in the appeal matter are also valuable pleas for similar reasons. They were entered at an early opportunity, you saved the victim of the offences from having to give evidence, your pleas facilitated the course of justice and have substantial utilitarian value in the current climate of the pandemic. I am also satisfied that your pleas of guilty in the appeal matter also reflect remorse and a level of insight with you articulating to Dr Downing that your actions would have scared the victim and made her life harder, and that she did not deserve that.
36In the circumstances, I have given you a substantial discount on sentence for your pleas of guilty in both the indictment matter and the appeal matter.
Gravity of the Offending
37Turning now to the gravity of your offending. There is no doubt that both sets of offending which bring you before me are serious matters. As discussed with your counsel during his submissions on the plea, to say that any of the offences which you have committed fall at the lower end of seriousness for that kind of offence does not detract from the fact that those offences are still offences which, even at their very lowest end, are particularly concerning.
38Dealing firstly with the indictment offences. I do accept most of the submissions made by Mr Sturges on your behalf. I agree that the burglary was spontaneous, opportunistic and involved little to no planning; that the theft was of items of limited value and those items were recovered; that when you stole the firearm you only stole one of the number of guns that were stored in the firearms cabinet; the firearm stolen was an air rifle; the theft of the firearm was opportunistic and unplanned rather than being a planned and targeted theft of a gun from a rural property for the purposes of ongoing criminality; and that your prohibited status had come about through you having served a term of detention in a youth justice centre rather than through any overt action on your behalf.
39However, as I have already noted, the offences were still serious offences. You did enter the shed on the residential property of the victims in this matter late at night. You threatened two young men, who were residents of that property and who were entitled to challenge you as to what you were doing there, not only verbally but with the reinforcement of the air rifle. As Mr Sturges conceded on your behalf – the threats on their own would have been frightening enough, but having those threats punctuated by a shotgun being pointed towards them – and in Dustin Franks’ case at his head – just added an extra layer of terror to your behaviour. Further, as identified by Mr Stefanovic, in order to escape from lawful arrest by the homeowners and their neighbours, you caused injury of sufficient concern to require hospitalisation and surgery. The fact that you did not intend to inflict such an injury is reflected in the charge to which you have pleaded and is not a matter which mitigates a charge of recklessly causing injury.
40I agree with the observations made by both counsel as to the relative seriousness of each of the charged offences – with the two charges of making threats to inflict serious injury and the one charge of recklessly causing injury being the most serious of the offences committed despite their lesser maximum penalties. This is a reflection of the presence and/or absence of various aggravating features in respect of each charge as outlined above. I do note, however, that by contrast with the other offences, despite your prior convictions, your possession of the single Valium tablet is a relatively minor matter and this is reflected in the penalty imposed.
41Finally I am of the view that despite the fact that each of the offences occurred as a continuum on the evening, it is necessary to impose a modest level of cumulation as between most of the offences to reflect the differing elements of the various offences and the various victims of those offences. I note that in determining the level of cumulation I have had regard to the principle of totality.
42Turning now to the appeal offences. There was some divergence in the submissions by prosecuting and defence counsel as to how the offences should be viewed by the Court. Mr Sturges submitted that the assaults the subject of the first two incidents were spontaneous, caused minimal injury and should be considered, given those matters and the context in which they occurred, to be offences which, whilst serious, fell at the lower end of this kind of offending. Mr Stefanovic, by contrast, submitted that the offending as a whole was committed in a family violence context; involved multiple assaults against the same victim over a time frame of one month; resulted in injury; and arose in circumstances where you were on bail for the indictment offences.
43I agree with Mr Stefanovic that the offending was serious. You committed these offences against someone you had been in an intimate relationship with for five years. Irrespective of the context in which the offences occurred, your behaviour was unjustifiable and escalated with each incident. In the first incident you bit your partner. In the second incident you initially attempted to control Ms Nichols by threatening to kill yourself and her cat, before then meeting with her, hitting her in the head ten to fifteen times, and stealing her property. And on the third incident – you not only attempted to exert control over Ms Nichols by taking her keys but you drove at speed with her on the bonnet of your car when she tried to stop you which resulted in her being thrown from the vehicle. And then, rather than stopping there, you came back and engaged in further aggressive behaviour towards her and assaulted her on two additional occasions.
44The higher courts in this state have repeatedly emphasised the need to deter and denounce offending in the context of family violence. This case is no different. It is important that you, and others in the community, understand that this is serious offending and that there is never a justification for acting in this way in respect of a current or former loved one.
45Insofar as the appeal offences were committed whilst you were on bail, Mr Stefanovic referred me to section 16(3C) of the Sentencing Act which provides that, unless otherwise directed by the court, each sentence for an offence committed whilst on bail must be served cumulatively on any uncompleted sentence or sentences imposed. In the circumstances of this case, having regard to principles of totality, whilst I will be ordering some cumulation as between offences on the appeal matter to reflect the different sets and types of offending, I will be directing otherwise than for total cumulation.
46Finally, as I raised during the plea hearing, I am of the view that your status as an unlicensed driver – who should not have been driving at all during any of these incidents – is an aggravating feature of the charge of reckless conduct endangering serious injury and I am going to treat it as such. Accordingly, to impose any cumulation for that charge would result in double punishment. Further, bearing in mind the principles of totality and the fact that the driving on the other occasion did not have any other aggravating features, I intend to simply convict and discharge in respect of the other driving offence.
Personal Circumstances
47You are now 23 years of age. You were born in Horsham and are an only child. During your lifetime, your mother has always suffered from bipolar effective disorder and had drug issues. Your biological father drank alcohol to excess. Your parents separated when you were three or four years old. You remained living with your mother, and then your mother and step-father when your mother re-partnered. You were initially living on a farm outside Horsham, but at 7 years of age, after your step-father was imprisoned, you and your mother moved into emergency accommodation for approximately 12 months. Then, when you were 8 years of age, you moved with your mother into commission housing in a rough neighbourhood.
48You were consistently exposed to drugs and violence both in the neighbourhood and at home. Your mother began using heroin and would be abusive towards you when she was coming down from drug use. When your stepfather was home, between terms of imprisonment, he also used drugs and he and your mother frequently had physical altercations which you tried to stop. Your mother struggled to look after you as a young child as result of her mental health and drug issues and at times, when your mother was unwell or drug affected, you had to resort to staying at your maternal grandmother’s house.
49You undertook your primary schooling at Horsham West Primary School. You had significant difficulty at school. You were bullied due to your weight and suffered learning difficulties to the extent that you were assigned an aide in Grade 5 and 6. Further you had the difficulties imposed by your home life – often either missing the school bus in the morning or having to walk home after school due to your mother being unwell; having to source your own food; being exposed to verbal and physical violence whilst you were at home; and receiving little, if any, emotional or educational support.
50On completion of primary school, you attended secondary school firstly at Horsham Secondary College and then Dimboola Secondary College. You also undertook some education at Parkville College whilst serving terms of detention. You passed Year 10, and commenced, but did not complete, VCAL.
51You have also had some limited periods of employment during your teenage years. You worked for two months in a plant nursery, for 4 months at Grain Corp and for 12 months in telephone repairs. Each of those employment opportunities ceased as a result of you being sentenced to terms of detention in Youth Justice Centre.
52You commenced using cigarettes, cannabis and alcohol as a 12 year old. By 14 years of age you were drinking excessively and heavily using poly-substances Over time you have used each of cannabis, ecstasy, speed, ice and LSD on a regular basis. Further since 14 years of age you have misused Xanax, valium and codeine, and from 18 years of age have misused suboxone. You have undergone a number of enforced detoxifications through incarceration, and have undertaken AOD counselling and courses whilst in custody. However you have never undertaken any formal detoxification or residential rehabilitation programs. Your drug and alcohol history is reflected in your criminal history, with drug offences, and orders for you to comply with directions in relation to alcohol and drug treatment, featuring in your prior history from the age of 15 onwards
53It is perhaps unsurprising given this background that you were under the influence of substances when you offended in both 2019 and 2021. You have instructed that at the time of the offending in 2019 you were drinking heavily and abusing drugs. In 2021 you were again abusing drugs, and additionally dealing with homelessness, a gradual deterioration in your mental health, and the breakdown of your five year relationship with Ms Nichols. I am told that you had sought assistance through Lifeline in the days preceding the offending.
54During your current period of remand, you have undertaken a 40 hour Youth Intensive Substance Use Program which was delivered on a 1:1 basis over a period of approximately 6 weeks. I received a certificate attesting to this fact which was tendered as exhibit 4 on the plea. You have also obtained work as a kitchen billet in the youth unit at Port Phillip Prison. You are clearly making efforts to address your issues and learn skills whilst in custody – and that is to be commended.
55You continue to remain in contact with your mother and your maternal grandmother. Your grandmother, in particular, continues to be supportive of you and you have had weekly telephone contact with her whilst you have been in custody. She has also offered that you can live with her, in her home, upon your release from custody.
Results of Psychological and Neuropsychological Assessment
56You underwent psychological testing and assessment with Ms Gina Cidoni for the purposes of the appeal matter when it was first listed as a plea in the Magistrates’ Court. You then underwent a further assessment with Ms Cidoni, and undertook neuropsychological testing and assessment with Dr Harriet Downing, for the purposes of your County Court plea and appeal. As a result, on the plea I was provided with two psychological reports from Ms Cidoni dated 15 August 2021 (Exhibit 1) and 22 October 2021 (Exhibit 2) respectively, and a neuropsychological report from Dr Downing dated 5 November 2021 (Exhibit 3).
57You have a history of depression and anxiety, as well as having experienced periods of psychosis due to drug use whilst in your teenage years. Ms Cidoni assessed you as currently suffering from generalised anxiety disorder, persistent depressive disorder, substance use disorder and an antisocial (conduct disorder) avoidant and borderline personality style. Ms Cidoni stated that your presentation has a pervasive effect on your thinking and behaviour – providing you with strong fears of abandonment, causing you to struggle to maintain healthy relationships, and providing you with very intense emotions and impulsive acts. In Ms Cidoni’s opinion, your internal unrest has encouraged your substance abuse in the absence of other coping mechanisms.
58In terms of your cognitive functioning, tests conducted by Dr Downing showed that you have a full scale IQ of 77 which is in the borderline range – however given the scatter within your results the full scale IQ score does not properly reflect your cognitive strengths and weaknesses. Your verbal comprehension is in the average range, and your perceptual reasoning is in the low average range, however your working memory and processing speed are in the extremely low range. This combination of results leads to you having impaired reading ability (about Grade 5 level), moderately to severely reduced information processing speed, and mild attentional and executive challenges that can also contribute to impairments in new learning and memory. Dr Downing is of the view that your current mental health symptoms of anxiety and depression are likely to be impacting on your neuropsychological assessment results, but that there is no evidence of any brain injury related to substance use or head injury. She stated that whilst your literacy problems are likely to be permanent, you may experience some improvements in other aspects of your cognition with amelioration of your mental health symptoms. Dr Downing was also of the opinion that your current cognitive profile cannot account for your offending. She noted that your offending behaviour was much more likely to have been associated with personality and emotional dysregulation factors, and acute substance use, and recommended a psychological opinion be obtained in that regard.
59It has not been submitted, and indeed it would not be open to conclude on the material in either report, that your mental health issues or cognitive functioning mitigate sentence in any direct way. However, the reports do have relevance to sentencing in the following three ways.
60Firstly, it is apparent from all three reports that your prospects of rehabilitation are firmly intertwined with your ability to abstain from abusing alcohol and drugs. Ms Cidoni assessed your risk of violent re-offending as being in the medium to high-risk range – with identified risk factors being your early maladjustment, offence history, substance use and mental illness. Whilst you have taken some preliminary steps in custody to address your drug and alcohol issues, and have told Ms Cidoni that you are committed to changing and to giving up all substances, it is the opinion of both Ms Cidoni and Dr Downing that you require significant assistance and supports upon your release from custody to remain abstinent. Both professionals have recommended that consideration be given to intensive substance abuse treatment. Ms Cidoni has further recommended that you engage in at least 12 months of intensive psychotherapy; engage in trauma-focused interventions and dialectical behaviour therapy to develop techniques to manage your symptoms more effectively; and undertake an anger management program. These matters are relevant in determining the weight to be given to the sentencing purposes of rehabilitation and community protection, and also the manner in which these sentencing purposes are effected in any sentence which I impose.
61Secondly, it is apparent from Dr Downing’s report that there is a need for any rehabilitative programs which you undertake to be tailored to your particular strengths and weaknesses to ensure greatest learning is obtained. In particular Dr Downing recommends that you engage in 1:1 programs (or group programs where you have an opportunity for 1:1 review in between sessions), be provided with simplified information, be given additional time to process and respond to information, be provided with breaks, and have information both repeated and demonstrated through examples. As I indicated during the plea hearing, I propose to forward a copy of Dr Downing’s report to the appropriate authorities so that that information is to hand for anyone providing you with treatment and/or support both in custody and in the community upon your release.
62Thirdly, it is also clear from the reports that your deprived and disadvantaged background – and in particular your disrupted childhood at home and school, your exposure to family violence within the home, and your early exposure to drug and alcohol use within the familial setting – has impacted upon the development of your personality structure and behaviours, and has been a significant contributor to your need to resort to drugs and alcohol from a very early age as a form of self-medication.
63Mr Sturges submitted that in the circumstances the principles set out in Bugmy v The Queen [2013] HCA 37 apply in your case – that is that your moral culpability for your offending is reduced to some extent by reason of the impact of your deprived childhood, and that weight should be given to your deprived background when considering the weight to be given to each of the sentencing purposes. Mr Stefanovic did not take issue with Mr Sturges’ submissions in that regard, however he did submit that as a corollary, your underlying issues which have resulted from your deprived background do require the court to give greater weight to community protection in sentencing.
64Ultimately I agree with the submissions made by both Mr Sturges and Mr Stefanovic. I accept that your disadvantaged upbringing does modestly reduce your moral culpability for the offending. I further accept that the weight to be given to both general deterrence and specific deterrence should be reduced to a moderate degree. However, the currently entrenched nature of your underlying issues is of significance when considering the weight to be given to community protection when sentencing. It is also relevant to the manner in which any sentence I impose upon you should be served, given that community protection in your case is firmly interlinked with your rehabilitation.
Prospects of Rehabilitation and the need for Community Protection
65It is accepted by the prosecution that you are still a youthful offender and, accordingly, rehabilitation should carry some weight in the sentencing synthesis. However Mr Stefanovic submitted that substantial weight still needs to be given to the other sentencing purposes in your case because of your age at the time of offending – being 20 and 22 years of age respectively; the serious nature of the each of the offences which you have committed; and your guarded prospects for rehabilitation arising from your offending history and your failure to comply with previous court orders.
66By contrast, Mr Sturges submitted on your behalf that due to your youth, rehabilitation should be a significant consideration, if not the primary consideration in sentencing you. Further Mr Sturges submitted that given your prospects of ongoing rehabilitation are linked to your capacity to remain abstinent from substances, community protection is also going to be best served through your rehabilitation. He submitted that structured supports and treatment are the most effective way of achieving this rehabilitation.
67I accept that as a youthful offender the weight to be given to general deterrence and denunciation in your case should be moderated. I note that Ms Cidoni in her report has identified that you still present as a young and immature man with less neurological and psychological development than older offenders. I also agree with the submissions that your prospects of rehabilitation are guarded and are strongly dependent upon your ability to remain drug and alcohol free once released into the community; and that community protection in your case is going to best effected by imposing a sentence which allows for you to have the opportunity to engage in supervised and supported rehabilitation. The gravity of your offending and your prior history of offending do however mean that general deterrence, specific deterrence and denunciation still have a significant (albeit moderated) role to play in sentencing you.
Impact of Covid-19
68As I identified earlier, you have now spent over 400 days in custody, with 275 of those days (or approximately 9 months) being during the pandemic. As a result you have been subjected to periods of quarantine and lockdown; have been unable to have any face to face contact with your family – including your grandmother who you maintain a close relationship with; and have suffered stress in respect of your health in custody given the widespread transmission of Covid-19 which has been occurring in the community. The latter aspect has been particularly acute for you in recent times as you have requested a Covid-19 vaccination and have not, to date, received one. There is no doubt that these issues have caused your time in custody to be more onerous than it would have otherwise been, and I take this into account in your favour.
Sentencing Submissions
69Mr Sturges submitted on your behalf that whilst the totality of your offending requires the imposition of a term of imprisonment, any term of imprisonment imposed should be followed by a period of structured support upon release. He submitted that the mitigating circumstances in this case would leave open the potential for a combination sentence to be imposed, and that a combination sentence would be the best way in which to provide you with the necessary supports on release. Mr Sturges further submitted that in the event that I did not agree that a combination sentence was available or appropriate in this case, that I should give consideration to allowing you the opportunity for a lengthy period of time on parole.
70Whilst Mr Stefanovic conceded that you should have the benefit of a number of mitigating factors – including your youth, plea of guilty, some reduction in your moral culpability due to the impact of your disadvantaged upbringing, the impact of Covid-19 upon your time in prison, and totality – he submitted that the sentencing purposes of general deterrence, specific deterrence, denunciation and community protection should not give way to rehabilitation in this case given your prior criminal history and the serious nature of all of the offending before the court. He submitted that only a sentence of imprisonment with a head sentence and a single non-parole period can properly be said to be in range.
Sentence
71Ultimately, having had regard to all relevant matters in this case including the principles of totality and parsimony, I agree with Mr Stefanovic’s submission that the only appropriate sentence in this case is a term of imprisonment in respect of both the indictment and appeal offences, with a single non-parole being imposed. However, I also accept the secondary proposition put forward by Mr Sturges that any term of imprisonment I impose upon you should carry with it the opportunity for a lengthy period of time on parole – whilst bearing in mind that you may be required to serve every single day of the sentence I impose. Such a sentence allows for a balance to be drawn between the weight (albeit moderated) which needs to be given to general deterrence, denunciation and just punishment due to the nature and gravity of the offending; the weight (albeit moderated) which needs to be given to specific deterrence given your prior criminal history; and the countervailing weight which needs to be given to rehabilitation – and by extension community protection – as a result of your youth and the need for treatment of your underlying issues.
Indictment and Related Summary Offences
72In respect of the charges on the indictment, you will be sentenced as follows.
73On charge 1, burglary, you are convicted and sentenced to 8 months’ imprisonment.
74On charge 2, theft, you are convicted and sentenced to 3 months’ imprisonment.
75On charge 3, theft of firearm, you are convicted and sentenced to 9 months’ imprisonment.
76On charge 4, being a prohibited person carrying a firearm, you are convicted and sentenced to 6 months’ imprisonment.
77On charge 5, making a threat to inflict serious injury, you are convicted and sentenced to 12 months’ imprisonment. This is the base sentence.
78On charge 6, making a threat to inflict serious injury, you are convicted and sentenced to 12 months’ imprisonment.
79On charge 7, recklessly cause injury, you are convicted and sentenced to 10 months’ imprisonment.
80On charge 8, possess drug of dependence, you are convicted and sentenced to 5 days’ imprisonment.
81On related summary charge 17, unlawful assault, you are convicted and sentenced to 30 days’ imprisonment.
82On related summary charge 21, unlawful assault, you are convicted and sentenced to 30 days’ imprisonment.
83I direct that 2 months of the sentence imposed on charge 1; 2 months of the sentence imposed on charge 3; 1 month of the sentence imposed on charge 4; 3 months of the sentence imposed on charge 6; 3 months of the sentence imposed on charge 7; 15 days of the sentence imposed on related summary charge 17; and 15 days of the sentence imposed on related summary charge 21 be served cumulatively on the sentence imposed on charge 5, and on each other.
84The total effective sentence on the indictment matter (including the related summary offences) is therefore a term of imprisonment of 23 months and 30 days (or effectively 2 years).
Appeal Offences
85In respect of the charges on the appeal matter you are sentenced as follows.
86On charge 1, recklessly cause injury, you are convicted and sentenced to 4 months’ imprisonment.
87On charge 4, unlawful assault, you are convicted and sentenced to 2 months’ imprisonment.
88On charge 5, theft, you are convicted and sentenced to 3 months’ imprisonment.
89On charge 7, unlicensed driving, you are convicted and discharged.
90On charge 10, reckless conduct endangering serious injury, you are convicted and sentenced to 9 months’ imprisonment. This is the base sentence on the appeal matter.
91On charge 12, unlicensed driving, you are convicted and sentenced to 14 days’ imprisonment.
92On charge 13, unlawful assault, you are convicted and sentenced to 2 months’ imprisonment.
93On charge 14, common assault, you are convicted and sentenced to 30 days’ imprisonment.
94On charges 2, 6 and 11, all being charges of commit an indictable offence whilst on bail, you are convicted and sentenced to an aggregate term of 30 days’ imprisonment.
95I direct that 1 month of the sentence imposed on each of charges 1, 4, 5 and 13; 15 days of the sentence imposed on charge 14; and 15 days of the aggregate sentence imposed on charges 2, 6 and 11; be served cumulatively on the sentence imposed on charge 10, and on each other.
96The total effective sentence on the appeal matters is therefore 13 months and 30 days (or, effectively, 14 months).
97I further order that 6 months of the total effective sentence imposed upon the appeal matters, be served cumulatively upon the total effective sentence imposed in respect of the offences subject of the indictment and the related summary offences.
Overall Total Effective Sentence
98The overall total effective sentence is therefore a term of imprisonment of 2 years and 6 months.
Single Non-Parole Period
99I propose to set a single non-parole period across the offences for which I have sentenced you today. I direct that you serve a minimum of 16 months before becoming eligible for parole.
Pre-Sentence Detention
100Pursuant to s18 of the Sentencing Act 1991 (Vic), I declare that the period of 405 days is to be reckoned as a period of imprisonment already served under this sentence, and I direct that the fact of this declaration and its details be noted in the records of the court.
101Counsel I've declared that as a total period because the combination of the time that Mr Inkster-Delaney has spent in custody on the appeal alone. And the combination of the appeal and the other offences, is sufficient to cover the six additional months that I added to the head sentence. And in those circumstances, rather than declaring periods of imprisonment, as against different parts of the sentence. I felt that it was just easier and more simplified to simply declare the 405 days against the entire sentence. Does anybody have a difficulty with that aspect?
102MR ROFE: No, Your Honour it - - -
103MR STEFANOVIC: No, Your Honour, thank you.
104HER HONOUR: Sorry Mr Rofe I think you were saying something else?
105MR ROFE: It was quite thoughtful in my submission Your Honour. I don't have an issue with that.
Section 6AAA Declaration
106HER HONOUR: Pursuant to s6AAA of the Sentencing Act 1991, I indicate that had you pleaded not guilty to the offences on the indictment and the related summary offences and been convicted of them, you would have been sentenced on those offences to a term of imprisonment of 3 years with a non-parole period of 2 years and 1 month.
107Further, if you had pleaded not guilty to the appeal offences and been convicted of them, you would have been sentenced on those offences to a term of imprisonment of 20 months with a non-parole period of 14 months.
108I have not determined an overall total effective sentence as it is unclear whether the matters would have ultimately been sentenced together if they had proceeded to a trial and an appeal against conviction respectively in this Court.
Ancillary Orders – Indictment
109Pursuant to section 78(1) of the Confiscation Act 1997 (Vic), I make a disposal order for three items being a homemade bong; TEAB bag T500720326; and one Valium tablet.
Other Matters
110All right. So, Mr Inkster-Delaney. The two numbers that are probably most I important to you are the overall total effective sentence. Which is 2 years and 6 months of prison time. And your single non-parole period which is 16 months that you have to serve before becoming eligible for parole.
111You have already done roughly 13 months I think it equates to, it might be a bit more than that, it might be 14 months now. If anyone can do the maths in their head.
112So, you have still got a little bit of time to go before you are eligible for parole. But what I have endeavoured to do, is to reflect the seriousness of the offending in the total period of gaol. But, given all of the issues that I have been through and all of the things, including your youth and the particular issues you need to address. Which have come about because of the issues you have faced throughout your life.
113I have given a significant period of time, or a significant opportunity for you to potentially be on parole. And to be under the supervision in the community and have some assistance in the community.
114OFFENDER: Thank you Your Honour.
115HER HONOUR: Ultimately, I don't make the decision of when you are released though. That is a matter for the Parole Board. And they will make that decision. What you need to do is to keep doing all of the positive things you have already been doing in custody. And that is, keep working on overcoming your drug issues. Keep working on gaining skills. All of those things are going to mean that I am less likely to see you back in this court in the future. And I sincerely hope for everyone's sake, the community's sake, the victims in this matter's sake and your sake. That this is the last time we see you before this court.
116OFFENDER Yes.
117HER HONOUR: And that this gives you an opportunity to get some assistance all right?
118OFFENDER: Thanks, Your Honour, thanks.
119HER HONOUR: All right. Can I thank, I know that I have two of the victims, again online today. And can I thank you for your attendance throughout this proceeding as well. And thank you and if you can pass on to your family members, thank you for the victim impact statements which you provided. I have had regard to them and I understand the impact that these offences have had upon each of you. And I do appreciate you attending on each occasion at court. All right counsel are there any matters which you want to raise at this stage? About either the sentence or the reasons for sentence?
120MR ROFE: No, Your Honour.
121MR STEFANOVIC: No, Your Honour, no.
122HER HONOUR: All right. Are you both satisfied I have got the maths, right?
123MR STEFANOVIC: Good question, perhaps we should spend one moment Your Honour, just to be sure, yes.
124HER HONOUR: All right I'll just let you do that.
125MR STEFANOVIC: Yes.
126HER HONOUR: I did check and re-check but it's always better to have other people check as well.
127MR STEFANOVIC: Yes, yes. Yes, Your Honour, your mathematics and mine, accord.
128HER HONOUR: All right, that's always a good start.
129MR STEFANOVIC: Yes.
130HER HONOUR: Mr Rofe you're also satisfied as well?
131MR ROFE: I'm satisfied Your Honour.
132HER HONOUR: Yes, all right. If anything does crop up in terms of either the way in which the PSD has been declared, or any other matter. I'm happy for either of the parties to bring the matter back on for me to deal with. I would be hopeful though, that custody can understand, or sentence management can understand how this works.
133I will obviously put a notation at the end of both the appeal orders and the plea orders, which are separate orders. I will make sure that the total effective sentence and the non-parole period that I intend. And the pre-sentence detention that I intend, as a total be placed on both. And the fact that they've been sentenced together. So hopefully there should be no difficulty. But if anything arises, as I said, please feel free to bring it back before me and I'll do whatever needs to be done to correct any difficulty that arises. All right.
134MR ROFE: All right.
135MR STEFANOVIC: Yes, Your Honour.
136HER HONOUR: All right. Mr Rofe, a final thing, did you want an opportunity to speak to your client before we finalise the link this afternoon?
137MR ROFE: Yes I would appreciate that.
138HER HONOUR: All right, so what I'll do is, I'll just have Ms Aguirre, close the court. But you stay where you are Mr Inkster-Delaney and then once everybody else has left the meeting, Mr Rofe will be able to have a quick chat to you. All right?
139OFFENDER: Yeah, thank you.
140HER HONOUR: All right thank you.
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