Director of Public Prosecutions v Jefferson
[2017] VCC 1634
•9 November 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-17-00611
CR-16-00837
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SHANE JEFFERSON |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 30 October 2017 | |
DATE OF SENTENCE: | 9 November 2017 | |
CASE MAY BE CITED AS: | Director of Public Prosecutions v Jefferson | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1634 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords:
Legislation Cited: Sentencing Act 1991; Control of Weapons Act 1990
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr A. Cecil | Office of Public Prosecutions |
| For the Accused | Mr T. Gyorffy QC | Galbally Rolfe |
HER HONOUR:
1 Shane Jefferson, you have pleaded guilty on Indictment G13512670 to one charge of armed robbery, the maximum penalty applicable being 25 years’ imprisonment and one charge of making a threat to kill, the maximum penalty, ten years’ imprisonment.
2 You are also before me for breaching a community correction order I imposed on 22 July 2016. You have admitted the breach and before me was documentation relevant to the breach, including a breach report prepared by Jade Mulholland, dated 25 October 2017, with a schedule, as amended by her in evidence on 30 October 2017.
3 Your breach of the order comprises four occasions when you failed to report for supervision and two occasions when you failed to perform unpaid community work. You have also further offended whilst on the order.
4 I note you completed two months of the order before your initial breach and you also completed 20 hours and 30 minutes of community work, which of course, I take into account when re-sentencing you on the original offences.
5 You have, as I have said, also breached that community correction order I imposed on 27 July 2017, by the commission of further offending, specifically the armed robbery and threat to kill charge before me on Indictment G13512670, also by offending on 23 December 2016, dealt with at Dandenong Magistrates’ Court on 16 October 2017, for resisting an emergency worker on duty (I was told a police officer). The prosecutor, Mr Trotman, advised that that offending on 23 December 2016 occurred when you were arrested for the offending before me on Indictment G13512670. You were convicted and fined $500 by the Magistrate.
6 You have also offended whilst on the community correction order, specifically on 29 September 2016, 4 October 2016 and 18 October 2016, involving exceeding the prescribed concentration of alcohol, driving at speed dangerous and driving whilst suspended. You were fined at the Magistrates’ Court an aggregate amount of $1,500 with conviction and your licence was cancelled and disqualified for 22 months from 29 September 2016. I stress that that offending is not part of the breach offending relevant to the community correction order, although is offending whilst on the order.
7 During the course of the community correction order, you have pleaded guilty to armed robbery and threat to kill, that offending having occurred on 22 December 2016, currently before me for plea and sentence. The victim of your offending in relation to the offences on 22 December was Wentao Zheng.
8 I turn to a summary of that offending. It is not necessary for me to recount in great detail the facts of this matter, as they are on transcript, the matter having been opened in some detail by the learned prosecutor. I proceed to sentence you on the basis of the facts as summarised by the prosecutor and discussed during the course of your plea hearing. It is sufficient for present purposes to simply say I regard the facts in your offending on 22 December 2016 as most serious and disturbing, in particular, given your offending which resulted in the imposition of the community correction order on 27 July 2016.
9 At the time of your offending on 22 December 2016, you were 24 years of age and 25 at sentence. The victim of your offending was employed as a store assistant by North Dandy Liquor in Dandenong.
10 At approximately 7.40 pm on 22 December 2016, you and a male co-offender (hereinafter ‘co-offender’) entered North Dandy Liquor. Both you and your co-offender were dressed in black. You were wearing an orange bandana covering your face and your co-offender was wearing a ‘scream’ mask over his face.
11 You went behind the counter and approached the victim. You put a black knife, approximately 25 centimetres in length, against the victim’s throat and said, “I’m gonna kill you, cunt.” You then yelled, “Give us all your money.”
12
You remained with the victim, holding the knife against the victim’s throat. The orange bandana slipped off your face and the victim recognised you as
a customer he had previously served.
13 During this, your co-offender also walked behind the counter.
14 The victim opened the register and you and your co-offender both took cash from it. The victim was told to stand in a corner.
15 You and your co-offender took cigarettes from the counter and bottles of alcohol from the shelves on the shop floor. Both you and your co-offender approached the victim again and you asked him for his wallet, however he did not have his wallet on him.
16 You then pointed the knife at the victim and said, “If you call the police, I’m gonna come back here and murder you, cunt. I’ll kill you.” You kept repeating that to the victim. You then pushed the register off the counter onto the floor and both you and your co-offender left.
17 Both of you then ran towards Mollison Street, where you got into a Toyota vehicle, registration BUZ D86, and drove away. That vehicle was registered in your name.
18 I viewed CCTV footage of this offending (Exhibit B), the knife at your victim’s throat clearly visible.
19 Three customers entered the store during the armed robbery and exited very shortly after entering, as seen in the CCTV footage.
20 You were arrested on 23 December 2016. In the record of interview, you denied any knowledge of the armed robbery.
21 I was recently advised by correspondence, dated 8 November 2017, from the prosecution, that your co-offender had been charged and a filing hearing was listed for 7 December 2017 at Melbourne Magistrates’ Court.
22 I digress and say I forgot to mention that to counsel just before I commenced the sentence, but I trust defence were made aware of that.
23 MR GYORFFY: Yes, we were.
24 HER HONOUR: As his matter is yet to be finalised, the principles of parity do not arise when sentencing you.
25 There are a number of aggravating features of your offending, being in company, wearing disguises and a level of pre-planning (taking the knife to the shop and parking your get-away car some distance from the shop). I also note, as with the armed robbery dealt with on 27 July 2017, you had previously been a customer at that store, the latter not an aggravating feature in itself.
26 There was no victim impact statement filed. Mr Zheng was given the opportunity to provide a statement, however declined to do so. Mr Gyorffy conceded in his written outline of submissions, the victim would have been afraid and conceded I could take into account Mr Zheng’s statement to police, in which he referred to being "scared for his life". I have no doubt he was.
27 The effects upon a victim are a relevant sentencing consideration (s5 Sentencing Act 1991). I am conscious, however, I must not allow the effect upon a victim to swamp the sentencing process.
28
You have pleaded guilty to these two charges on the indictment and the breach charge and you are entitled to have that taken into account in your favour and
I do so. By your pleas of guilty, the court has been spared the time and cost of a trial and witnesses, in particular Mr Zheng, have been spared the need to give evidence upon your trial. I accept your plea of guilty was entered at the earliest opportunity, although I do note that at the time of interview with police, you denied any involvement in the armed robbery.
29
Regarding the timing of your plea of guilty, the offences were committed on
22 December. You were arrested the following day, charged and remanded into custody. On 16 March 2017, a plea offer was made by those representing you. On 24 March 2017, at a committal case conference, the matter resolved, consistent with the offer by you on 16 March 2017.
30 You are entitled to have your pleas of guilty and the timing of them taken into account in your favour when sentencing, and I do.
31
I accept your plea of guilty indicates some remorse, albeit somewhat limited.
I am concerned about the extent of your remorse, in particular, given the similarity of this offending to that dealt with by me on 27 July 2017. Also your other non-compliance breaches of the community correction order, commencing just two months (29 September 2016) after the order was imposed. I also question the extent of your remorse, as you were aware of the impact of your earlier offending (armed robbery) dealt with on 27 July 2017, the impact that it had upon that victim.
32 You have admitted a number of prior court appearances. You first appeared at Dandenong’s Children’s Court on 17 September 2010 on charges of dishonestly receiving stolen goods and without conviction, were placed on a good behaviour bond. You next appeared at Dandenong Magistrates' Court on 26 November 2013 on charges of reckless conduct endangering serious injury, being a learner driver without an experienced driver with you, driving without a front L-plate and intentionally damaging property. On those charges the matter was, without conviction, adjourned to 26 August 2014.
33
You next appeared at Frankston Magistrates' Court on 31 January 2014, for having an excess of a prescribed concentration of alcohol in your system and driving without L-plates. Without conviction, the matter was adjourned to
30 January 2015, your licence cancelled and disqualified six months.
34 You next appeared at Dandenong Magistrates' Court on 19 May 2015 on a charge of descending a platform onto a railway track and possessing a prohibited weapon without exemption or approval and were, without conviction, fined an aggregate $200.
35 Your next attendance was at Melbourne County Court on 27 July 2016 before me, where you pleaded guilty to armed robbery, committing an indictable offence while on bail, two charges of threatening to assault an emergency worker, carrying a dangerous article in a public place and two charges of possess a dangerous article in a public place. You were convicted and placed by me on a community correction order for a period of four years, with a number of conditions attached to the order, including unpaid community work.
36 My reasons for sentence dated 27 July 2016, should be read in conjunction with these current reasons for sentence, as those earlier reasons set out details of not only that offending, but your background, history and the reports relied upon both then and now in your current plea hearing.
37 Your recent time on remand has been your longest period in custody. I note, however, you did spend 16 days in custody following the armed robbery dealt with by me on 27 July 2017. It would appear that even that experience did not dissuade you from this offending.
38 Although one can never give up hope of your eventual rehabilitation, there is little before me to give me encouragement there is any great likelihood of that. However, I do note the current certificate that has been provided, where you attended for drug and alcohol counselling between 3 November and 6 November, which is a very good start. However, in fixing an appropriate sentence, I must seek to maximise your chances of your rehabilitation, as there may be and in that regard, I also note your relatively young age.
39 Mr Gyorffy, who appeared on your behalf at the plea hearing, supplemented his written submissions with oral submissions and also relied upon a recent report of Dr Mathew Barth, Psychologist, dated 27 July 2017. Mr Gyorffy also tendered a folder of defence exhibits (Exhibit 1), which contained, in addition to the recent report of Dr Barth, the previous reports which had been available to me and were read by me for the hearing in July 2016. I have read all those documents.
40 I turn to the recent report prepared by Dr Barth, dated 27 July 2017, who assessed you on 5 July 2017 at Port Phillip Prison over approximately three hours. Dr Barth had a number of documents available to him to assist in his assessment (paragraph 4).
41 Results of your assessment indicated significant substance abuse issues in the past and in the context of marked emotional and behavioural problems.
42 Dr Barth referred to your background and history, much of which I was told at the 2017 hearing. You acknowledge, when you were younger, your behaviour was rebellious and oppositional.
43 Reference was also made to your education and employment history. Consistent with your unstable family life, you displayed significant behavioural disturbances and admitted you had been aggressive towards other students and teachers and frequently truanted school.
44 Reference was made to you being involved in a motorcycle collision in 2012 and I discussed this with your counsel.
45 Reference was made to your substance abuse history. Dr Barth described you reported an extensive substance abuse history, first trying cocaine when you were 12 years of age. You then began consuming alcohol and cannabis when 13, with increasing amounts being used by you throughout your teenage years.
46 You commenced methamphetamines or ice when 16, commencing with use two to three times a week. You said you remained heavily addicted to alcohol and cannabis and that your ice use escalated after the collision. In particular, you acknowledged you abused ice on a daily basis in the three months prior to being remanded on the offences before me on the indictment.
47 Dr Barth concluded that your abuse of ice, cannabis and alcohol had contributed to severe issues in every area of your life.
48 Turning to your mental health history, you described periods of emotional disturbance dating back to your childhood. Dr Barth also reported depressive mood disturbances following the collision in 2012. Reference was made to your past prescriptions for anti-depressants and anti-psychotic medication, Abilify, in response to your periods of drug-induced psychosis, however, you had not been compliant with taking medication, largely due to the severity of your ongoing drug use.
49 Turning to the current offending on the indictment before me, you described that offending as having occurred during a period when you were abusing drugs and alcohol heavily and socialising with others who were abusing substances.
50 The principles in R v Verdins & Ors[1], were not relied upon when sentencing you for your offending before me. That, in my opinion, was an appropriate concession, based on the contents of all material, including that most recent report of Dr Barth which addressed your recent offending.
[1] (2007) 16 VR 269
51 You expressed remorse to Dr Barth for your behaviour, acknowledging that, “I could’ve killed an innocent man over nothing”. I discussed this expression of remorse by you with your counsel and the prosecutor. You were, as I said, also sorry for the armed robbery for which I sentenced you in July 2017. Your concern for your earlier victim, however, did not stop you from offending on this occasion before me, involving arguably an escalation of your offending, with a knife placed by you to your victim’s throat.
52 At interview with Dr Barth, you presented with depressive and anxiety-related symptoms, which caused you a degree of distress. He also concluded your self-esteem was very low. Due to your chronic lifestyle and heavy substance abuse, your ability to manage stress, generate solutions and deal with the inevitable complications of life, was poor (paragraph 28). The current charges contributed to your further emotional distress.
53 Given the nature of the offences on the indictment, Dr Barth conducted an assessment of your anger management skills and propensity for violence. He concluded you had a propensity to rapidly escalate to hostility and aggressive behaviour whenever you felt you were being challenged. Your decision-making was impulsive and reckless, with you failing to consider the full spectrum of the consequences of your behaviour. Your behaviour, he concluded, remained significantly disinhibited. Your insight into your behaviour was very limited and treatment to address that was warranted.
54 Regarding your drug use, your insight into your drug use was, at this stage, at a very formative level. Dr Barth concluded your drug and alcohol use represented a prominent criminogenic factor in your case. He concluded that your current symptoms warranted a diagnosis of Adjustment Disorder – With Mixed Disturbance of Emotions and Conduct, Currently Anti-Social Post-Personality Disorder, Stimulant Use Disorder, Cannabis Use Disorder and Alcohol Use Disorder.
55 In Dr Barth’s opinion, you had the ability to appreciate the noxious impact of drug use on your behaviour and your life more generally, however, you were in the very early stages of addressing your significant drug addiction and your insight into your behaviour was poor, hopefully improved as a result of the recent course undertaken. In his opinion, you presently lacked any realistic plans to remain abstinent and as such, specialist substance abuse treatment was warranted.
56 You would, in Dr Barth’s opinion, require extensive treatment and support if you were to have any realistic prospect of achieving abstinence from drug use and avoiding further criminal behaviour. I have no doubt and as I discussed with your counsel, the opportunity for you to address these issues was commenced on the community correction order.
57 Without the treatment suggested in paragraph 40, in the opinion of Dr Barth, your rehabilitative prospects in the community must be considered as being “very guarded”.
58 I am concerned about your ongoing drug use at the time of this offending and that you did not respond well to the opportunities given to you by Corrections to address your drug use at the time of the community correction order.
59 Mr Gyorffy called evidence from Jade Mulholland, the author of the breach report, dated 25 October 2017. Ms Mulholland confirmed you had yet to be referred to Corrections Victoria’s offending behaviour programs. You had been on a wait list, however had been removed from that, as a result of this further offending. Ms Mulholland was not entirely clear as to the types of programs she understood that could/would be offered through offending behaviour programs, however, thought they included the Moderate Violence Intervention Program, Talking Change, Making Choices and Maintaining Change. She was not, however, able to speak about the contents of the programs to any extent, as they were delivered "by others".
60 Ms Mulholland confirmed her conclusion that, in essence, Community Corrections would "consent" to having you return on a community correction order. I am, of course, very much aware of that and have carefully considered it. She confirmed that, in her opinion, you did not have the opportunity to address the risks involving your offending behaviour and confirmed that this was your first attempt at being on a community correction order.
61
Regarding your limited efforts, however, to address your drug use whilst on the order, Ms Mulholland referred to you attending ACSO Coats on 30 August, at which time you were brokered to undertake treatment with SECADA on
5 October, however you did not attend. There was discussion between you and your Community Corrections officer on 10 October about your non-attendance, however, thereafter you disengaged from the service.
62 On 17 November, you were given a senior manager’s warning at CCS, but indicated you “could not be bothered engaging in treatment”.
63
Reference was also made to you being observed consuming alcohol outside
a Community Corrections office. Ms Mulholland said it had been difficult trying to get you to comply with the order.
64 Ms Mulholland referred to your history of drug use and possible acquired brain injury. She thought it might assist to have you assessed.
65 While the prosecutor, Mr Trotman, did not cross-examine Ms Mulholland, he stated in her presence, the prosecution submission was that a term of imprisonment was the only appropriate disposition and that a further community correction order would be outside the range of appropriate dispositions.
66 I turn to the written submissions prepared by Mr Gyorffy, which I discussed with him during the course of the hearing. In his submissions, dated 2 August 2017, he provided details of your background and history, amending the first page of those submissions to reflect you had left your mother and step-father’s home in Beaconsfield before this offending before me, having been asked to leave by your mother due to you abusing drugs.
67 Mr Gyorffy referred to your recent arrest and being remanded in custody from 23 December, a plea offer being made by those representing you on 16 March 2017 and your pleas of guilty being entered 24 March 2017. As previously stated, I accept your pleas of guilty were entered at an early stage.
68 Reference was also made to your psychiatric, psychological and medical issues, including as I have said, to the reports previously and recently provided to me.
69 In those same written submissions, Mr Gyorffy referred to you being a youthful offender. As I briefly discussed with him, R v Mills[2], is not of automatic or usual application. Each case depends on its own circumstances, including the circumstances of the offence, as well as the offender (see DPP v Lawrence[3]).
[2] (1998) 4 VR 235
[3] (2004) 10 VR 125
70 In R v Connolly[4], Coldrey J referred to the principles in Mills and stated that:
“No doubt a sentencing court will endeavour to implement these principles as far as is possible in sentencing a youthful offender, but they are not to be regarded as immutable. In the context of the variety of fact situations and offenders with which courts have to deal, such factors as the seriousness of the offence or offences committed (and the just punishment therefore); the need for deterrence (specific and general); the offender's prospects of rehabilitation; and the need to protect the community may need to be reflected in the sentence imposed.”
[4] [2004] VSCA 24
71 In R v Tran[5], Callaway JA at p.462 said:
“The rehabilitation of youthful offenders, where practicable, is one of the great objectives of the criminal law, but it is not the only objective. It is not difficult to cite cases where other objectives have had to prevail. It is true in the case of a youthful offender that rehabilitation is usually, in italics, far more important than general deterrence. But the word I have italicised is there to remind us that there are cases where just punishment, general deterrence and other sentencing objectives are at least equally important.”
[5] (2002) 4 VR 457
72
You do have a criminal history. Whilst not lengthy, it is troubling, including
a prior for armed robbery and also subsequent offending, the latter referrable to your rehabilitation prospects, and that prior for armed robbery being the matter for which I placed you on the community correction order.
73 Mr Gyorffy submitted it was in the interests of the community you overcome your drug and alcohol abuse. Whilst that is so, an opportunity was given to you when the community correction order was imposed and you consented to the order being made aware of all the conditions that would have been attached to it.
74 Mr Gyorffy submitted that in the approximately ten months you have been in custody since 23 December 2016, you had abstained from alcohol and drug use and that you now appreciated the need for you to cease illicit drug and alcohol use, that there was greater clarity of thinking. Mr Gyorffy also referred to you in custody having the added responsibility of being a billet. I again note the recent certificate tendered.
75 Mr Gyorffy also relied upon the ongoing support of your family and the attitude of the Community Correction officer, Ms Mulholland.
76 Ultimately, I must determine the appropriate disposition, taking into account all relevant sentencing considerations, including the gravity of your offending and all matters personal to you and in mitigation of sentence.
77 In Mr Gyorffy’s written submissions dated 27 October 2017, he referred to Dr Barth’s report, in particular, paragraphs 37 and 41 and I have read those, as well as the report.
78 Mr Gyorffy submitted the community would be better protected by persevering with an attempt to rehabilitate you, rather than sentencing you to a head sentence with a non-parole period.
79 Mr Gyorffy submitted you could be sentenced to a years' imprisonment, together with a community correction order of between four and five years, with conditions as recommended in the breach report prepared by Ms Mulholland and also as discussed prior to this sentencing being handed down, in relation to the time already served.
80 Mr Gyorffy submitted this armed robbery before me fell within the ‘low range’ of armed robbery and relied upon the Court of Appeal overview of ‘low-range’ armed robbery sentences in the Judicial College sentencing manual. I discussed some of these cases with Mr Gyorffy. Of course, statistics and other cases are part of the considerations when determining sentence, however, it is very difficult to ascertain details of the offending and offenders from statistics. All of s.5 Sentencing Act 1991 must be considered.
81 Section 5(2)(b) of the Sentencing Act 1991 requires a sentencing judge to have regard to ‘current sentencing practices’, however the limitations of those practices was being referred in cases, including Kilic v The Queen[6]. The range of sentences imposed in the past does not necessarily fix the boundaries within which future sentences must be passed.
[6] [2015] VSCA 331
82 In DPP v Dalgleish[7], the court referred to current sentencing practices being only one factor a sentencing judge must take into account when sentencing. Current sentencing practices cannot justify a sentence which is manifestly inadequate. Current sentencing practices are not a controlling factor in the sentencing exercise and are not to be treated as determinative (Dalgleish [48] and [84]). See also Younan v The Queen[8].
[7] [2017] HCA 41
[8] [2017] VSCA 12
83 I disagree with the classification of your offending as a low-range armed robbery, in particular being mindful that you had previously been before me and sentenced for armed robbery. I place your offending as closer to mid-range.
84 Mr Gyorffy submitted rehabilitation should be the dominant sentencing purpose in your case. Whilst I agree the sentence imposed must address the hope you will be rehabilitated, that is but one sentencing consideration.
85
The prosecutor, Mr Trotman, submitted the only appropriate disposition was
a head sentence and a non-parole period. Mr Trotman referred to the level of planning. That you had attended the same shop previously, had a knife in your bag and took it to the shop, and that the car to ‘get away’ was parked away from the shop; and your offending involved a ‘soft target’.
86 Mr Trotman conceded it was clear you had issues with alcohol and noted that some of the items stolen from Mr Zheng involved alcohol.
87 Mr Trotman referred to the seriousness of your offending, including the threat to kill made to the victim and repeated by you while the knife was at Mr Zheng’s throat.
88 Mr Trotman submitted and I agree, your offending was not momentary. The CCTV footage showed your offending occurred over approximately three minutes, which I am sure felt much longer to the victim. It also involved direct contact by you with the victim, that is, up close and face-to-face, as opposed to, for example, a counter being between you. You were, as Mr Trotman said, in very close proximity to the victim. You were.
89 Mr Trotman also submitted an aggravating feature of your offending, was that you were on a community correction order for exactly the same type of offending, that is, armed robbery. I agree.
90 Mr Trotman referred to the use of other cases and their limitations, and as I discussed with both counsel. While they offer some assistance, their use is limited. I am obliged, of course, to consider all of s.5 Sentencing Act 1991 when determining the appropriate disposition.
91 Mr Trotman submitted it was not accepted by the prosecution that there had been significant development in your remorse or insight since your most recent incarceration for this offending. The fact that you had not been using drugs in prison did not mean you had learnt. He submitted there was still a need to protect the community from you and that specific deterrence was very important. I agree.
92
Mr Trotman also referred me to the decision of Rooney v The Queen[9], which
I have read.
[9] [2017] VSCA 275
93 Mr Trotman submitted your prospects of rehabilitation were poor, although conceded violence had not been part of your history prior to the imposition of the community correction order on 27 July 2017, and I am also aware of that.
94 When considering your prospects of rehabilitation, Mr Trotman submitted the fact you committed this offence so soon after the community corrections order was imposed, was a relevant consideration, plus your history of drug use leading up to this offending.
95 Mr Trotman referred to the concerns expressed by Dr Barth regarding your risk of relapse and your entrenched drug culture, which ‘played out’ in your coping skills, which Dr Barth concluded were poor.
96 Mr Trotman submitted there was a need to protect the community from you and also the need for specific deterrence. He also referred to the need for general deterrence when sentencing for this type of offending and I note also, involving ‘soft targets’. He submitted the combination disposition urged by Mr Gyorffy was not appropriate in all the circumstances.
97 I briefly discussed with counsel the length of a term of imprisonment, when combined with a community correction order and was referred to Youngerv R[10] (paragraphs 64-65).
[10] [2017] VSCA 199
98 Following the plea hearing, I received written correspondence from Mr Gyorffy (Exhibit 4), regarding s.44(1) and his submission accords with my understanding (paragraph 14).
99 Submissions were also received from the prosecution on 8 November 2017, which confirmed, in essence, the submissions of Mr Gyorffy and my understanding. The prosecution, however, in providing that information, maintained a head sentence with a non-parole was the only appropriate disposition.
100 I have considered whether a further community correction order is appropriate. In that regard, I am mindful of Boulton & Ors v R[11] and subsequent pronouncements of the Court of Appeal, relevant to those principles. A community correction order has both a punitive and rehabilitative aspect to it and in Boulton, the court was urged to rethink the conventional wisdom about whether prison is really the only option.
[11](2014) 46 VR 308
101 Community correction orders have been referred to and addressed in a number of cases since, which include DPP v Maxfield[12], Alam v The Queen[13], Marocchini v The Queen[14] and Hutchison v The Queen[15] and also Gul v The Queen[16] and that list is by no means exhaustive.
[12] [2015] VSCA 95
[13] [2015] VSCA 48
[14] [2015] VSCA 29
[15] [2015] VSCA 115
[16] [2016] VSCA 82
102
I did not, however, understand Boulton to remove the requirement that
a sentencing judge must take into account all of s.5 Sentencing Act 1991, nor did I understand Boulton to mean that sentencing principles stated by the Court of Appeal and other courts, relevant to this type of offending, now amounted to nought. Nor did I understand Boulton’s decision to remove the instinctive synthesis when sentencing.
103
I also did not understand Boulton to remove the need for me to be mindful of the maximum penalties applicable to each of the charges. Further, I note
Priest JA observed in Hutchison that:
“It should not be thought that Boulton offers a 'get out of gaol free’ card, in situations where a sentence of imprisonment is necessary in a given case to satisfy the various purposes for which a sentence may be imposed.” [17]
104 Ultimately I must determine the appropriate disposition in your case, taking into account all relevant sentencing considerations.
105 As well as matters personal to you, to which I have referred, including your prospects of rehabilitation as I find them to be, I must also take into account matters such as deterrence, especially general deterrence, which is of considerable importance in a case such as this, yet again involving, in particular, ‘soft targets’.
106 There is also the need for specific deterrence when sentencing you, given you do have a prior and relevant history.
107 I must also consider the question of the protection of members of the community from you and bear in mind the likelihood of your re-offending. I remain concerned about that.
108 I am called upon by the Sentencing Act 1991 to manifest the community’s denunciation of your conduct and generally to impose a just punishment.
109 I also sought further written submissions from counsel regarding the appropriateness of an aggregate sentence being imposed on Charges 2 and 3 on the earlier indictment and Summary Charges 1, 3, 4 and 5 when re-sentencing for the earlier offences for which you were placed on a community correction order, mindful of DPP v Rivette[17].
[17] [2017] VSCA 150
110 Mr Gyorffy submitted an aggregate sentence could be imposed, as those offences, charges to which I have just referred, formed ‘part of a series of offences of similar or same character’, having arisen from the same incident, ie at the railway station.
111 Mr Trotman submitted in his correspondence, dated 2 November 2017, that the course proposed by me regarding an aggregate sentence when re-sentencing on those charges was also consistent with the legislation.
112 When sentencing you, I take into account the principle of totality.
113 On Indictment G13512670, I sentence you as follows.
114 On Charge 1, you are convicted and sentenced to 3 years' and 6 months’ imprisonment.
115 On Charge 2, you are convicted and sentenced to 12 months’ imprisonment.
116 I turn to the breach offence (the summary charge). I find the breach proven and with conviction, I impose a fine of $100 on that charge.
117 Upon re-sentencing you for the offending on Indictment G10499923, I sentence you as follows.
118 On Charge 1, you are convicted and sentenced to 14 months’ imprisonment.
119 On Charges 2 and 3 on that indictment, as well as Summary Charges 1, 3, 4 and 5, you are convicted and sentenced to an aggregate of 6 months’ imprisonment.
120 Charge 1 on Indictment G13512670 is the base sentence.
121 I direct that 4 months of Charge 2 on Indictment G13512670, be served cumulatively upon Charge 1 on that Indictment.
122 I direct that 4 months of Charge 1 on Indictment G10499923, be served cumulatively upon Charge 1 on Indictment G13512670.
123 I direct that 2 months of the aggregate sentence, be served cumulatively upon Charge 1 on Indictment G13512670.
124 For clarity, the orders for cumulation are upon each other and upon the base sentence.
125 That results in a total effective sentence of 4 years' and 4 months’ imprisonment and I direct you serve a period of 2 years and 4 months before you are eligible for parole.
126 Now listen carefully, counsel, to this one.
127 Pursuant to s18(4) Sentencing Act 1991, I declare you have spent 321 days in custody (up to and including yesterday, 8 November 2017), by way of pre-sentence detention for this offending. In addition, I declare 16 days not previously declared at the time I imposed the community correction order (see paragraph 131 of my sentence handed down on that date). That results in a total of 321 plus 16, ie, a total of 337 days to be declared by way of pre-sentence detention and I direct that that be entered into the records of the court.
128 That was not discussed with counsel, but I would like you to just check that and we will discuss it.
129 Pursuant to s6AAA Sentencing Act 1991, had you pleaded not guilty to these two charges and been found guilty of them, I would have sentenced you to a term of imprisonment of 6 years and set a non-parole of 4 years and 6 months.
130 The prosecution made application for a forfeiture order in relation to a number of items, as set out in the draft order and summary of prosecution opening. That was not opposed by counsel on your behalf and I make the order in the terms sought. A forfeiture order was also sought in relation to the Control of Weapons Act 1990, for a hunting knife with a black handle and sheath. Again, consented to by counsel on your behalf and I make the order in the terms sought.
131 Does anyone need help with the maths?
132 MR GYORFFY: No, Your Honour.
133 HER HONOUR: Is that all right? It all makes sense? I have just referred - - -
134 MR GYORFFY: Yes.
135 HER HONOUR: Yes, all right.
136 MR GYORFFY: And so does the 16 days.
137 HER HONOUR: That is all right, because no one mentioned that.
138 MR GYORFFY: No.
139 HER HONOUR: But I did very - clearly, that is what I do when I sentence to CCOs if they are - so that I do not have to trawl through all of it. So there is an extra 16 days, I said at that time, that I did not declare because of the order that I made, but I am now declaring it. All right?
140
Now, is there anything further in this matter? No, all right. Thank you,
Mr Jefferson. All right, thank you very much.
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