Director of Public Prosecutions v Kearney

[2020] VCC 723

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
 Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-02075

DIRECTOR OF PUBLIC PROSECUTIONS

v

BENEDICT KEARNEY

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JUDGE:	HIS HONOUR JUDGE GEORGIOU
WHERE HELD:	Melbourne
DATE OF HEARING:	15 May 2020
DATE OF SENTENCE:	29 May 2020
CASE MAY BE CITED AS:	DPP v Kearney
MEDIUM NEUTRAL CITATION:	[2020] VCC 723

REASONS FOR SENTENCE
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Subject:         CRIMINAL LAW
Catchwords: carjacking – causing serious injury recklessly – conduct endangering persons – assault emergency worker on duty – resist emergency worker on duty – damage property – commit indictable offence on bail – drug induced psychosis – mitigation factor
Legislation Cited: s.5(2H) Sentencing Act 1991
Cases Cited: Marks v R [2019] VSCA 253; Avan v R [2019] VSCA 257; Phillips v R; Liszczak v R [2017] VSCA 313
Sentence: total effective sentence of 37 months and 14 days' imprisonment. Non-parole period of 20 months. 12-month cancellation and disqualification of licence.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms H. Baxter	Office of Public Prosecutions
For the Accused	Mr J. Anderson	Balmer & Associates

HIS HONOUR:

1Benedict Kearney, you have pleaded guilty to carjacking, causing serious injury recklessly, conduct endangering persons, assaulting an emergency worker on duty, resisting an emergency worker on duty and damaging property.

2You have also pleaded guilty to a summary charge transferred to this court pursuant to s.145 of the Criminal Procedure Act 2010 of committing the indictable offences of carjacking, conduct endangering persons, assault police and criminal damage whilst on bail.

3The maximum penalty for carjacking is 15 years' imprisonment; for recklessly causing serious injury, 15 years' imprisonment; for reckless conduct endangering serious injury, five years' imprisonment; assaulting police, five years' imprisonment; resisting police, five years' imprisonment; criminal damage, 10 years' imprisonment and committing an indictable offence whilst on bail, three months' imprisonment.

4The circumstances of your offending are set out in the summary of prosecution opening.  Your counsel admitted the facts set out in that opening.  Your offending may be summarised as follows.

5On 15 July 2019, a motorist driving on Railway Avenue, Werribee noticed you lying down on the grass.  She pulled over to see if you needed assistance.  You were passed out and appeared to her to be drunk or on drugs.  She contacted police who attended shortly thereafter and found you still lying on the grass.  Police thought that you were drug affected and you in fact were able to tell police that you had used drugs.  An ambulance was requested and you were taken to the Werribee Mercy Hospital where you were treated in the Emergency Department. 

6At approximately 4.56 pm, you left the Emergency Department and walked through the carpark wearing only your underpants.  A doctor on duty noticed you walking through the carpark and called 000.  She requested police attendance due to her concerns for your welfare. 

7In addition to the underwear you were wearing, you still had four ECG dots stuck to your chest and blood on your hands. 

8At approximately 5 pm, the victim in this matter, Julie McRae, left her work at a nearby private medical centre and walked to her car, which was parked in the medical centre's staff carpark.  The medical centre is located opposite the hospital.

9Ms McRae got into her car and placed her keys in the ignition.  As she was doing that, you opened her driver’s side door.  You said to her, 'I want your car, get out of the car, I need your car'.  Ms McRae was in a state of panic and refused to hand over her car.  You then said to her, 'I don’t want to hurt you, just give me your car, I just need to get away from these idiots'.

10You attempted to take the keys from the ignition and in the struggle that followed, Ms McRae's finger became caught in the keyring and was injured.  You managed to get the keys and said to her, 'I don’t want to hurt you, just give me the car, I just need your fucking car'.  Ms McRae screamed at you, 'Give me back my keys, you're not getting my car'.  She attempted to get out of the car and you punched her right hand as she was getting out, causing her immediate pain.  Ms McRae screamed out to a bystander for help.  You then grabbed her right arm and pulled her out of the driver's seat and onto the ground.  She landed on her bottom and grazed her elbow.

11Police, who had earlier been called, were directed by bystanders to where you were.  You got into the driver's seat, shut the door and started Ms McRae's car.  Ms McRae jumped into the driver's side back seat, yelling and screaming at you.

12The above conduct is the basis for the offences of carjacking and recklessly causing serious injury. 

13You then reversed the car with Ms McRae still inside.  You were seen to then do 'burnouts' before driving around the carpark two or three times at a fast speed.  The tyres of the car were screeching and there was a lot of smoke coming from the car.  You collided with another car and pedestrians in the carpark had to hide behind vehicles for safety.  You screamed at the victim to shut up.  You then drove towards the carpark exit where a police divisional van had been placed.  You avoided the police van by mounting the kerb and driving over the garden beds and out of the carpark.  You then drove onto Old Sneydes Road and then onto Hoppers Lane.  Hoppers Lane is a single carriageway on which roadworks were being carried out.  The speed limit was 40 kilometres per hour.  You drove on the wrong side of the road, overtaking several cars and travelled at an estimated speed of between 80 and 90 kilometres per hour. 

14You then collided with a traffic island which caused you to lose control of the car.  The force of the collision caused the victim to be thrown from her seat.  The car was forced off the road, drove through a fence and became wedged in a ditch.  The car's windshield was broken and the car immobilised.  You and the victim got out of the car.  The victim tried to prevent you from running away by taking hold of your wrist.  You pulled your hand away and ran into the paddock.

15At 5.42 pm, police located you emerging from bushland on the corner of Sneydes Road and Hoppers Lane.  You were told to get on the ground multiple times, but you continued to walk towards Sergeant Sherry.  You became involved in a physical altercation with him, swinging your arms and attempting to punch him.  Detective Senior Constable Ostrowsky assisted to restrain you, but you were resisting the efforts to arrest you. Police eventually managed to place you under arrest. 

16Your conduct in driving Ms McRae's car around the car park and at high speed down the wrong side of the road in traffic is the basis for the charge of conduct endangering persons.

17In the course of being arrested, you bit Detective Senior Constable Ostrowsky on the hand, which caused a superficial indentation.  That conduct forms the basis of Charge 4 on the indictment.  Your conduct in resisting Sergeant Sherry forms the basis of Charge 5 on the indictment.

18You were placed in the rear of a police divisional van and taken to Werribee police station.  While being transported, you were aggressive and constantly kicked the inside of the van.  In so doing, you damaged the pod window of the van.  This conduct is the basis of Charge 6 on the indictment. 

19As a result of your offending, Ms McRae suffered a mallet fracture of her index finger, bruising to her right forearm and arm, and grazes on her elbow.  She required surgery to repair the fracture to her finger. 

20At the time of your offending, you were also on bail for the offences of criminal damage and contravening a family violence intervention order.

Impact Statement

21Ms McRae read to the Court her Victim Impact Statement.  It is clear that your conduct has had a significant effect upon her emotional and physical
well-being.  Ms McRae stated that her sense of security, confidence and happiness was abruptly taken from her as a result of your actions.  She has undergone counselling in order to cope with the resulting emotional turmoil, which includes flashbacks, fear and nightmares.

22In addition, the physical injury to her finger required surgery and she was incapacitated for a period of approximately seven weeks, as well as requiring medication to reduce the pain.  She will never again have full use of her finger.

Criminal History

23You have admitted your criminal history.  You have had three previous court appearances.  Relevantly, on 30 September 2010, at the Heidelberg Magistrates' Court, you were placed on a community-based order for
nine months, without conviction, on charges which include unlawful assault and resisting an officer.  On 10 August 2010, for a charge of unlawful assault, without conviction, the charge was adjourned to 10 November 2011.

Personal Circumstances

24At the time you committed these offences, you were 37 years of age.

25You grew up in the Melbourne suburb of Northcote.  Your father, who is now deceased, worked as a solicitor and your mother as a nurse.  You have an older sibling. 

26Your mother continues to live in Northcote and you have telephone contact with her from gaol two to three times per week. 

27You have four children of your own from two different relationships.  Your oldest daughter is 19 years of age and you keep in contact with her. 

28You have three children from a second relationship.  They are aged 10, nine and five.  Your relationship with their mother deteriorated and you finally separated in 2017. 

29You completed Year 10 of schooling at Marcellin College.  Despite not being academically inclined, you were nevertheless engaged at school.  At the age of 15, you left school and completed a traineeship in hospitality and a Certificate II in Hospitality Operations.  You worked in that field for approximately eight years, working mostly in pubs. 

30In 2008, you commenced working for the company, 'Harry the Hirer', servicing large events like the Flemington Racing Carnival, the Formula One Grand Prix and AFL finals.  You worked with Harry the Hirer for approximately seven years, progressing to warehouse supervisor and then site supervisor. 

31In 2014 you obtained employment interstate as a truck driver and machine operator for a company that built steel powerlines.  In the course of that employment, you completed a Certificate IV in Engineering.  That job was described as a 'fly-in-fly-out' job.  You were flying in and out of Northern Queensland and Western Australia to work.  You ceased that work in 2015 following the birth of your youngest son.  In that same year, you returned to work with Harry the Hirer, your last position being as an operations manager in the furniture department where you supervised 28 employees.  You last worked in approximately March 2019.

Drug and Alcohol Use

32Your counsel, Mr Anderson, submitted that you had been a heavy drinker in the past and that your previous violent offending occurred in the context of that heavy drinking.

33He also submitted that you have been a long-term user of illegal drugs since your late teens.  You instructed him that you have used methylamphetamine over the last 20 years, initially on a social basis with friends, but escalating to daily use by around April 2019.  This increased use coincided with relationship difficulties, difficulties in obtaining access to your children, and the loss of your employment in March 2019.  It was submitted that once you lost the stability of a regular family life, your drug use slowly got out of control which, in turn, led to problems in your work performance. 

34Tendered on your behalf was a report of Dr Leon Turnbull, consultant psychiatrist.  He assessed you on the 29 April 2020.

35You acknowledged to him your longstanding problems with drugs, especially methylamphetamine.  You told Dr Turnbull that leading up to your offending, you had used a combination of methylamphetamine, GHB, and Xanax.  It was only the second time that you had used Xanax and it is probably what caused you to lose consciousness when you were found lying down in the grass.  You told Dr Turnbull that you had been using methylamphetamine daily for about three months and you cited your divorce and tensions around gaining custody of your children as, in part, providing the reason for your daily use of methylamphetamine.

36As for your offending, you told Dr Turnbull that you recall waking up in what you now know was the hospital, with a vivid recollection of, to use your words, 'aliens looking over me'.  Thereafter, you have 'snapshot' recollections of feeling as though you were in danger and running away from horror characters.  You recall taking the car, but you have no recollection of any interaction with the victim or driving and crashing the car.

37It is Dr Turnbull's opinion that you were thoroughly psychotic at the time of your offending and that your actions were instructed by that experience. 

38You do not, in his opinion, suffer any obvious psychiatric illness.  Your main issue is drug abuse over many years.  Dr Turnbull stated that you were open to being challenged about drug use and addressing that in a broad range of ways.  You did not shirk any responsibility.  You expressed not only a willingness, but a desire, to address your problems with drug use.  Provided you remain abstinent from illicit drug use, Dr Turnbull considers there is little risk of you re-offending.  He stated, however, that if you return to drug use, particularly ice use, then 'anything is on the table'. 

39It is likely, in his opinion, that you were in a drug-induced psychotic state when you committed these offences. It was the first time you suffered from psychosis and Dr Turnbull concluded that there was no realistic anticipation or foreseeability that you would become psychotic from drug use.

40Mr Anderson submitted that the drug-induced psychosis was an explanation for your offending and that is relevant to sentencing in a number of ways.  First, he submitted, you do not have a history of offending under the influence of methylamphetamine.  Secondly, you have not previously suffered a drug-induced psychosis.  Thirdly, you did not appreciate at the time of ingesting the drugs that you might act in a manner such as this. Fourthly, that the reason for you discharging yourself against advice from hospital is related to your bizarre beliefs in that drug-induced psychotic state.

41Mr Anderson submitted that your conduct can therefore be distinguished from other cases where, for example, a person makes a deliberate and sober choice to engage in a particular course of action, or the case where a person ingested drugs in the knowledge, based on  previous experience, that the taking of drugs may lead to offending behaviour.  Mr Anderson submitted that this was relevant to an assessment of your moral culpability.

42Mr Anderson accepted that your offending was serious. Not only did you terrorise Ms McRae, but you also put her and other road users at risk, and you behaved disgracefully towards police.  He submitted that your conduct was not planned and it arose in response to your psychotic perception of the world at the relevant time.

43Mr Anderson submitted that you have expressed enormous shame and remorse for your conduct, and despite it arising from a drug-induced psychosis, you accept that ultimately you are responsible for your own actions.  This is consistent with what you told Dr Turnbull.

44As to your prospects for rehabilitation, Mr Anderson accepted that they are very much tied to your ability to refrain from drug abuse.  He pointed to a number of factors that bode well for your rehabilitation.  In summary they are:

(i) despite 20 years of drug use, you have no history of drug-related offending;

(ii) you have not previously engaged with, and failed at, attempts at drug rehabilitation;

(iii) you do not have any underlying and ongoing mental illness that may complicate your rehabilitation;

(iv) you have a good history of employment and good employment prospects;

(v) the aftermath of your offending and your time in custody is likely to have a significant deterrent effect on you;

(vi) you have accepted responsibility for your conduct and shown genuine remorse;

(vii) you do not have an entrenched criminal history;

(viii) you have used your time in custody productively, including having completed a number of drug related courses; and

(ix) upon release you will have the support of your mother and extended family including an employment opportunity through your aunt, Margaret Kearney.

45Margaret Kearney has provided a written reference to the court.  She stated that whilst she and your family in no way condone your crimes, they are committed to doing everything possible to assist your rehabilitation and ensure that you do not re-offend.  She stated that you will be closely supervised by people you know and respect, people who want the best for you and your children. 

46You are currently at Fulham Prison.  You work in the metal shop Monday to Friday.  Mr Anderson stated that you have completed every program available to you as a remand prisoner, including Alcohol and Me, Cannabis and Me and Ice and Me programs.  You were receiving regular visits from your mother, which have now stopped because of the COVID-19 pandemic.

47Mr Anderson also relied on your pleas of guilty as indicators of your remorse and providing significant utilitarian benefits to the court and the community.

48In relation to the charge of recklessly causing serious injury, it was submitted that the injury caused fell at the lower end of the range of what might constitute a serious injury.

49Ms Baxter, who appeared on behalf of the Director of Public Prosecutions, submitted that your offending represents a serious example of carjacking.  She submitted that you assaulted the victim and used force to pull her from the car.  She stated that Ms McRae was terrorised and thought she was going to die as a result of your actions.  Despite that, it was accepted by the learned prosecution that your behaviour was spontaneous, that you stole the car in the context of your drug-induced psychotic state, rather than for any financial gain, that you stated that you did not wish to hurt the victim, and that the injury caused by your conduct falls at the lower end of the spectrum. 

50Ms Baxter accepted that your pleas of guilty were entered at the earliest reasonable opportunity and that there is utilitarian value in your pleas. They are also evidence your remorse.  She accepted, as was submitted by your counsel, that the impact of COVID-19 increases the value to be placed on the utilitarian plea of guilty. 

51Ms Baxter also accepted that this offending was out of character and that you were not on notice about the probable consequences of your drug ingestion.  She referred to Marks v R [2019] VSCA 253 and stated that the general principle governing voluntary intoxication and psychosis is that an offender's culpability is unlikely to be reduced by a state of mind resulting from the use of illicit drugs if that person has a history of drug use leading to hallucinations and bizarre behaviour. Ms Baxter stated that this is not the case here. She further submitted, relying on Avan v R [2019] VSCA 257 and the case of Marks that where an offender was unaware that drug use could induce a psychotic state likely to precipitate criminal offending, moral culpability, general deterrence and specific deterrence can be reduced. In this case, she submitted that the weight attaching to those matters should be reduced ‘somewhat’.

52Ms Baxter also accepted that you have good prospects for rehabilitation, provided you remain abstinent from drug use.

53The offence of carjacking is a Category 2 offence under s.3(1) of the Sentencing Act 1991. Under s.5(2H) of the Act the court must make a custodial order for a Category 2 offence unless one of the criteria specified in s.5(2H)(a) to (e) applies. Mr Anderson submitted that the exception provided for under s.5(2H)(e) applies to your case. Ms Baxter opposed that submission. Both counsel submitted, however, it would be open to me to impose a sentence of imprisonment on the carjacking charge and a community corrections order on one of the other charges.

54Mr Anderson submitted that a term of imprisonment ought to be imposed given the seriousness of your offending.  However, in his submission, the question was whether I should also impose a community correction order or a non-parole period.  Ms Baxter submitted that the only appropriate penalty, in all the circumstances, is that of a term of imprisonment and a non-parole period.

Sentencing Considerations

55In my opinion, your case does not fall within any of the exceptions to s.5(2H) of the Sentencing Act 1991. In particular, when regard is had also to subsections (2HC) and (2I) of the Act, I do not consider that there are substantial and compelling circumstances that are exceptional and rare and that justify not making an order under Division 2 of Part 3 of the Act.  The fact that your offending was brought about by your voluntary ingestion of illicit drugs leads me to this conclusion.

56In determining the appropriate sentence, I have regard to the sentencing purposes referred to in s.5(1) of the Act of proportionate and just punishment, general and specific deterrence, rehabilitation, denunciation of your conduct and protection of the community.  I am also required to have regard to each of the matters set out in s.5(2) of the Act.

57I have already set out the maximum penalties prescribed for each of the offences to which you pleaded guilty.  It was conceded by your counsel that with the exception of the charge of recklessly causing serious injury your offending was serious.  I agree.  That is not to diminish the impact of the injury suffered by Ms McRae, but in the scheme of what might be considered serious injury, it falls towards the lower end.  The degree of probability that serious injury would be caused as a result of your grappling for the keys and punching her right hand was low, as was the seriousness of the probable injury.

58A number of matters were advanced by the learned prosecutor as going to the seriousness of the carjacking offence, including the fact that the victim was assaulted, the fact that you drove dangerously putting the victim and other road users in danger, ultimately crashing the car and the fact that the victim was terrorised.  However, as some of that conduct is the basis for other charged offending, I must be careful to ensure that there is no double punishment.

59I do accept that your conduct was not pre-meditated and that it happened on the spur of the moment when you saw Ms McRae in her car.  Despite that, I consider the carjacking here to be a serious instance of the offence.

60The particulars of the carjacking charge are that you stole Ms McRae's car and that at the time you did so, and in order to do so, you sought to put Ms McRae in fear that she would be then and there subjected to force.  There can be no doubt that Ms McRae was terrified by your conduct, not to mention your appearance.  She was alone and vulnerable.  Your assurances that you did not wish to hurt her would not have been of any comfort to her.  Your tone in demanding the car was increasingly aggressive.  Ms McRae’s efforts to prevent you from taking her car were futile in the face of your aggression and violence.

61I also consider that the charge of reckless conduct endangering serious injury to be a serious instance of such an offence. You drove, whilst drug affected, at a fast rate of speed around a car park where there were other vehicles and pedestrians; you collided with another car in the car park; you drove over a curb in order to get past a police van parked at the exit to the car park; you drove on the wrong side of the road at 80 to 90 kilometres per hour in a 40 kilometre per hour zone, there were other cars on the road at the time; and you ultimately collided with a traffic island.  Ms McRae was in the car at the time.

62I accept that by reason of your drug induced psychosis, the first you had ever experienced in a long history of drug abuse, your level of moral culpability is reduced. I also accept, on the authority of Marks and Avan, that the weight to be given to general and specific deterrence should be somewhat reduced.  That is not to say they are unimportant considerations.  General deterrence is normally a significant factor in sentencing for offences of this kind.  Further, you need to understand the gravity of your offending and the need to avoid consuming illicit drugs.

63You have pleaded guilty to the offences before me.  I accept that the pleas were entered at the earliest opportunity and that you have taken responsibility for your conduct.  There are significant utilitarian benefits that attach to your pleas of guilty.  The victims of your offending, Ms McRae in particular, have been spared the trauma of having to give evidence in court and the court and community have been spared the need for a trial.  I note that your pleas were entered on 16 October 2019, long before the COVID-19 pandemic.

64I accept also that your pleas of guilty are a reflection of genuine remorse and that you are deeply ashamed of your behaviour.

65I am required to denounce your conduct.  It was outrageous behaviour and the community has a right to be protected from those who engage in the use of illicit drugs and who go on to commit criminal offences.  Drug related offending is all too common.  Your counsel is correct in describing your conduct as dangerous and terrifying to those who came in contact with you, particularly Ms McRae.

66As to your prospects for rehabilitation, I agree with your counsel that they are very much tied to your ability to refrain from future drug abuse.  This will be no easy matter given your long-standing use of illicit drugs.  However, there are in place a number of protective factors, which I earlier mentioned, that give rise to what I consider to be good prospects of rehabilitation.  I also consider that your time in custody to date, your first experience of gaol, will have acted as significant deterrent factor and will motivate you to address your drug issues.

67I have also taken into account the decision of Phillips v R; Liszczak v R [2017] VSCA 313 and the need to have regard to considerations of totality, the need to reflect any overlapping criminality across the offences, and the need to avoid a crushing sentence. The principle of totality requires that I look at your criminality as a whole and ensure that the sentence imposed is just and appropriate.

68Despite your counsel's forceful submissions, in my opinion your offending does require that I sentence you to a term of imprisonment with a non-parole period.  I will, however, impose a relatively low non-parole period in order to give effect to your rehabilitation.  If your rehabilitation can be achieved that would not only be in your interest, and your children's interest, but will also best serve the protection of the community.

Sentence

69Mr Kearney, I now turn to sentence.

70On Charge 1, the offence of carjacking, you are convicted and sentenced to a term of imprisonment of 24 months.

71On the charge of causing serious injury recklessly, you are convicted and sentenced to a term of imprisonment of eight months.

72On the charge of conduct endangering persons, you are convicted and sentenced to a term of imprisonment of 12 months.

73On the charge of assaulting an emergency worker on duty, you are convicted and sentenced to a term of imprisonment of four months.

74On the charge of resisting an emergency worker on duty, you are convicted and sentenced to a term of imprisonment of four months.

75On the charge of damaging property, you are convicted and sentenced to a term of imprisonment of three months.

76On summary charge of committing an indictable offence on bail, you are convicted and sentenced to a term of imprisonment of one month.

77The sentence imposed on Charge 1 is the base sentence.  I direct that
four months of the sentence imposed on Charge 2, six months of the sentence on Charge 3, one month of the sentence imposed on Charge 4,
one month of the sentence imposed on Charge 5, and one month of the sentence imposed on Charge 6 and 14 days of the related summary charge be served cumulatively on the base sentence and on each other.  This makes a total effective sentence of 37 months and 14 days' imprisonment.

78I direct that you serve a period of 20 months' imprisonment before being eligible to be released on parole.

79Pursuant to s.18 Sentencing Act the period of 319 days not including today is reckoned as a period of imprisonment already served under the sentence.

80But for your pleas of guilty, Mr Kearney, the sentence I would have imposed is one of 44 months with a non-parole period of 30 months.

81Are there any other orders that I need to make?

82MS BAXTER:  Your Honour, just the licence cancellation order.  There is no minimum to that order.

83HIS HONOUR:  Yes, sorry.  I did neglect that.  I did intend to do so.

84MS BAXTER:  Thank, Your Honour.

85HIS HONOUR:  Is it pursuant to s.89?

86MS BAXTER: Pursuant to s.89(4).

87HIS HONOUR:  Yes.

88MS BAXTER: The prosecution is seeking a finding under s.89C that the offence was committed while the offender was under the influence of drugs.

89HIS HONOUR:  Mr Anderson, do you wish to say anything in relation to those matters?  It is my intention to disqualify your client for driving for a period of
12 months.  Do you wish to say anything in relation to s.89?

90MR ANDERSON:  No, I do not, Your Honour.  No.

91HIS HONOUR: All right, pursuant to s.89(4) of the Sentencing Act, any licence held by you is cancelled and you are disqualified from obtaining a licence for a period of 12 months.

92That is backdated to 16 July 2019. Pursuant to s.89C of the Sentencing Act, I find that the offence of conduct endangering persons, that is Charge 3, was committed while the offender was under the influence of a drug and that that contributed to the offence.  Is that sufficient, Ms Baxter?

93MS BAXTER:  Your Honour, just in terms of the 89C declaration, the triggering offence for the licence cancellation order is the carjacking offence.  So the offence which is committed while the offender was under the influence of drugs, which would trigger the declaration under 89C, would be the carjacking offence rather than the conduct endangering persons.

94HIS HONOUR:  Well does it matter?

95MS BAXTER:  In my submission, Your Honour, it does because the licence cancellation order is only relevant by virtue of the carjacking offence.

96HIS HONOUR: All right, pursuant to s.89C of the Sentencing Act, I will direct that the offence of carjacking was committed while the offender was under the influence of a drug which contributed to the offence.

97Mr Kearney, can you hear me?  Mr Kearney, are you able to hear the court?

98OFFENDER:  Yes, Your Honour.

99HIS HONOUR:  Mr Anderson will no doubt explain to you the effect of the orders I have made.  The minimum term you are required to serve is
20 months less the time you have already served.  However, you have to earn your parole and if you do, you will be released at around that time.  It is my hope that you will be.  Once you are released, you will be subject to parole and will have hanging over you the threat of further imprisonment.  So that should provide you with incentive and motivation to rehabilitate and get your drug use under control.  Do you understand that?

100OFFENDER:  Yes, Your Honour.

101HIS HONOUR:  All right, thank you then.  I will now adjourn the court.

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