Director of Public Prosecutions v Kent
[2022] VCC 1661
•20 September 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT Melbourne
criminal DIVISION
CR-22-00379
Indictment No. M12074920
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| Kai KENT |
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JUDGE: | HIS HONOUR JUDGE TINNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 July 2022, 19 September 2022 | |
DATE OF SENTENCE: | 20 September 2022 | |
CASE MAY BE CITED AS: | DPP v Kent | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1661 | |
REASONS FOR SENTENCE
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Catchwords: False imprisonment; Threat to kill; armed robbery. Summary offences: assault, trespass, possess controlled weapon. 20 almost 21 years of age at time of offence, 21 as at sentence. No criminal history - Early plea - Worboyes v The Queen [2021] VSCA 169 – Remorse, Youth. R v Verdins [2007] VSCA 102; COVID-19.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms E. Fargher (at Plea) Mx. J. Van Dyk (at Further Plea) Ms A Kennedy (at Sentence) | Office of Public Prosecutions |
| For the Accused | Mr R. de Kretser | Start Norton Halphen |
HIS HONOUR:
1 Kai Raymond Kent, you have pleaded guilty to three charges on the indictment that has been filed in this court. So a single charge each of false imprisonment, threat to kill and armed robbery. You have also pleaded guilty to three summary offences being assault, trespass and possession of a controlled weapon.
2 You were just a few days shy of your 21st birthday as at the date of the offending in October of last year. You are now 21 years of age. You have no criminal history at all.
3 The amended summary of prosecution opening on the plea correctly sets out the maximum penalties. I do not intend to repeat them. There was some discussion in the course of the plea about the availability of the higher maximum penalty, that is a six months maximum for the summary assault but that is only if the court does not consider that the specified three month maximum set out in s23 of the Summary Offences Act is adequate to sufficiently punish. That does not arise here so I treat the maximum for that summary matter as three months or a fine of no more than 15 penalty units.
Facts
4 That amended summary dated 26 July 2022 was marked as Exhibit A on the plea. There was one very small amendment that was made in the running to paragraph 16 and the number of condoms that were present.
5 The prosecutor opened this matter in accordance with that amended document.
6 Your counsel Mr de Kretser told me that it was an agreed factual statement and, in those such circumstances, I see no need to set out the full sentencing facts in these, my reasons. They will be long enough as is. I will sentence pursuant to that agreed summary, which is the more complete document.
7 I still should say something about the offending and I will deal with it relatively briefly.
8 In February of last year you came to Melbourne to study an Advanced Diploma of Building design at RMIT. As it transpired, it was a very bad time to come to this city with many disappointments which arose in the course of that year. You had in fact had the pretty unsatisfactory experience of doing the course remotely the year before from the family home up in Ulladulla and that was owing to the pandemic. So, it probably added to your excitement about 2021 being a far better year for you, providing as it would your first real taste of the true university experience and campus life that lay ahead. That would have no doubt been exciting to contemplate.
9 Instead, of course, the pandemic reared its head again and you arrived in this city just in time to be locked down. You were very isolated and within a very short time, your university course reverted to being conducted online. There were a number of lockdowns. You lost your way completely over the course of the year and undoubtedly you were acting in a disturbed fashion in the early hours of 3 October.
10 In the early hours of that morning, (past 3 am) you rang the residential advisor at the UniLodge apartments where you resided. It happened to be 29-year-old Ms Patpatia who had the great misfortune to be on duty, who’s task was to answer the phone. There is no suggestion at all that you were seeking her out or in any way targeting her or even a woman more generally. She just happened to be on deck answering that phone. You told her that you needed to get into your apartment and pretended that there was some issue with your door. She told you to wait beside your door and she would come up and let you in. She took a master key to do just that. She came to your apartment to find you apparently locked out of it.
11 Of course, she did not know you were pretending. She knew you and she had assisted you in the past. This sort of thing was not that uncommon it would seem within that building. There was an electronic key. She opened the door with the electronic master key and she told you that there did not seem to be a problem with the lock. That is because of course, there was not. This was all just a ruse on your behalf.
12 You were hiding a knife which you then produced and you then held it to her face and demanded she enter your unit. She could feel the pressure of the knife on her face and you repeatedly told her to go inside your apartment. She was shocked and crying and pleaded with you, to no avail. You pushed her into your apartment and said, 'if you keep moving I will stab you and leave, I just don't care'.
13 The apartment was dark and you pushed her towards the bed shouting at her to lie down on her back on the bed. You repeatedly told her that you would stab her. Again, she begged you not to touch her. Unsurprisingly she feared there was to be a sexual assault. The fact of the presentation of the knife, your demands for her to enter the unit and then to lie down on the bed and the presence of some condoms and lubricant that she observed conveyed that possibility to her. I make clear I am not satisfied there was any intent to sexually assault her. I am not dealing with that sort of event. Your real motivation surfaced a little later and it was a pretty startling one.
14 At one point, as I have said you pushed her onto the bed and in this similar timeframe you demanded that she kill you if she wanted to get out of that room alive. It would seem then that this was your true motivation. Your behaviour was increasingly aggressive. You repeated your demands that she kill you, telling her if she didn't, then it would be she who would die.
15 It really was a terrifying ordeal that unfolded in that apartment. You made her sit on a stool saying to her that 'if you move, the knife goes in'. She felt her blood sugar levels dropping and mentioned that to you and your response was to throw a bag of sugar at her. She was talking about her family and hoping to engage you in that way and to arouse some sympathy. It did not work.
16 You said you would only stab her once.
17 You walked towards her aggressively, grabbed her and held her up against the balcony and raised the knife and moved as though to stab her. It was terrifying conduct.
18 You used your phone and you rang your parents. And so, your mother and step-father's house. You told them that if they could not help you, that you were going to stab someone. The victim was heard to be screaming and asking for help. They could hear this over the phone. Your parents pleaded with you to let the woman go, whoever she was. I interpose that your mother rang Triple 0 and relayed her concerns to the authorities, which was entirely appropriate. See p305 of the depositions. It was a startling call for her to be receiving from you at that time of the morning, that is a call from her son, telling her something about 'them', that is she and your stepfather, having a couple of minutes before you stab someone.
19 Whilst you were distracted, your victim took out her personal phone and alerted some friends to her predicament via a WhatsApp group message. That was at around 3.26 am. They, or some of them called the police. When you realised she had used her phone, you then assaulted her, charging at her hitting her hand and pushing her onto the couch and kicking her leg when she screamed for help. Hence the summary assault. You threw her phone onto the floor.
20 You then asked for the master key and snatched it from her whilst still armed with that knife, hence the armed robbery. You then left her, saying as you left, that you were going to get other women and stuff them into the unit. You threatened to kill her if she moved. You then left. With that, the false imprisonment then ended. The threat to kill rolled up a number of threats over the course of the incident that I have described. They are mentioned in the summary.
21 You then used the master key to access the adjacent apartment and walked in holding the knife. You walked into the kitchen and obtained another knife and then held the knives up to the stunned male victim Mr Xin. You left as suddenly as you had entered. It was quite bizarre. You tried to enter another apartment though that is not the subject of any charge before me and is there only as to context. You then left the building.
22 As I said, the police had been notified by a variety of people including your own mother and they attended post haste at the apartments. In fact, your victim had in the meantime overcome her own fear to raise the alarm for other residents within the building, going door to door and getting them to leave the premises. This was pretty courageous of her to be thinking of others given her ordeal and her complete uncertainty as to where you were. She left what she knew to be the safety of a locked area where she was safe to try to assist others and so she is obviously to be commended for taking those steps.
23 Of course, she did not know this but you had left the building. You made your way on foot out to Fawkner, that is not a misprint, to Fawkner, and you attended at the police station and surrendered. So that is walk from Carlton to Fawkner. You had taken your shoes off in the foyer of the police station and removed a folding knife, which is the knife the subject of the controlled weapon charge. You were then arrested and interviewed and selectively answered some questions. Predominantly you chose to no comment to the police as was your right. You have been in custody since your arrest on 3 October of last year.
24 So much then for really what is only a brief summary of the offending. That is all it is. I will sentence pursuant to the far more detailed amended agreed statement which is marked as Exhibit A on the plea. In addition there are some photographs in the depositional material depicting the venue, the knives, a bruise and a graze or scratch to Ms Patpatia's legs. There is no need for those to be marked as exhibits, they are in the depositions.
Impact
25 There are two impact statements, one from your principal victim
Ms Divya Patpatia and one from the male occupant of that adjacent unit which you then entered. That was Mr Xin and his statement was very brief indeed. It was read by the prosecutor. You have disturbed his sense of security both in the short and long term. He now believes that anything can happen to him and he feels the need to have a knife under the bed.
26 As to your principal victim Ms Patpatia, put simply, your crimes have had a really devasting impact upon her. That is hardly surprising. They were terrified. You sought to terrify her and amply succeeded. You threatened to kill her and intended that she would believe that threat or were at least reckless in that regard. It was an extraordinary ordeal that she had to undertake and one that she will obviously never forget. It has deeply affected her life and the trajectory of her life, at least in the short term. The statement was read aloud by her and there is no utility in my just repeating what she has said in the document. I have read it again since the plea.
27 Her life came to something of a standstill as a result of these serious crimes that were committed upon her. She is haunted by them and retains a deep sense of anxiety and vulnerability. She is trying to rebuild her life but she is battling to do so and dealing with the strange reactions of some of her relatives who assume that she was in some way at fault. You have, in a way, derailed her educational path. She was doing a Master of Laws and put that on hold. She came to this country to further her education in the hope of returning home with a degree from what she believed to be a prestigious university. She looked forward to a career at home back in India. Well, she has put all of this on hold. It has deeply impacted her relationship with her husband. She deals with the post-traumatic stress disorder arising from this event. I will not act on the suggestion of her physical health being ruined, for instance the suggested link with medical conditions spoken of at p6 of the impact statement. In fact that matter has had a line put through it since the plea that was first conducted in July.
28 There has also been some financial cost. Again, there had been some issues flagged about that part of the impact statement and again that has been resolved with some matters being deleted at p8 in the amended document that was placed before me yesterday. The precise cost to her is not critical at all. I have no doubt at all that there have been financial impacts as is conceded, there are still references to some of those in the unamended document. She wonders if she will ever have ambition again. She poses a lot of questions about the life ahead for her at p9.
29 There is also a letter from Ms Cidoni who has been treating her. I was, I must say critical of the form of that document, until l realised as I should have immediately that it was not actually a document prepared for court purposes, but rather in support of, I imagine some special consideration from the university. That explains why the author characterises the nature of the armed robbery and describes that, and other matters that I spoke of yesterday of which the court would not have regard to. In any event, I withdraw any criticism of that document given the reasons for the preparation of that letter. I act on the admissible portions of it.
30 What is plain then is that your crimes have had a profound impact upon this young woman and that is not in any way in dispute. I do not act emotionally. I have to be careful about that. Impact is but one of many matters that I must consider in my task and I must not let it swamp or overwhelm other considerations. It is no comfort to her after the event to learn that you were a disturbed young man with no criminal history, all at sea amidst the global pandemic. Someone who had no intent to actually hurt her seriously in a physical sense. She had no idea of the reasons underpinning your criminal acts. All she could see was what was then happening.
31 What you were then doing, what you were then saying. They were, as she says, terrifying crimes. One hopes that she can somehow move forward with her life and pick up the trajectory of it but she has undoubtedly been very significantly knocked of course by you and your crimes and the impact of them. I take into account the impact of your crimes as I am required to.
In mitigation
32 Your counsel Mr de Kretser relied upon some lengthy written plea submissions dated 24 July 2022. They were far more than an outline, running to some 16 pages. He filed a very lengthy report from Dr Davis and called him to give evidence on the plea. There was a bundle of character references including letters from your mother, father and stepfather. There was also a letter of apology from you penned the day before the plea, some course certificates, and a remand history. On the return date of the plea, yesterday, Mr de Kretser placed before the court the rental agreement relating to the four bedroom house that has been rented up in Wodonga. That possibility of a private rental had been mooted in July at the time of the plea conducted before me but now it actually has been undertaken.
33 There was much information provided to me as to your family and personal background including your educational and employment history. Your counsel made submissions about the offence gravity, your prospects of rehabilitation and the risk of reoffence as well as the relevant sentencing purposes coming into play in this case.
34 Mr de Kretser conducted a very thorough plea on your behalf and the written submissions were of a very high quality indeed. He could not have said more on your behalf. He relied principally upon the following matters in mitigation:
· Your early guilty plea in the midst of the global pandemic;
· The presence of some remorse;
· Your youth and the complete absence of any criminal history;
· The application of three limbs from the well-known decision of Verdins[1] (so, limbs 1, 2 and 3);
· The impacts of COVID-19 upon your custodial experience to date and into the future, should there be a future placement in custody.
[1]R v Verdins [2007] VSCA 102; 16 VR 269; 169 A Crim R 581 ('Verdins')
35 He conceded yesterday that a term of imprisonment was inevitable here but argued that it might be open to structure a combination type sentence with your release either forthwith or in the not-too-distant future. Plainly that was not open as at the date of the plea. He was relying on the structure that had now been placed before the court in terms of that private rental up in West Wodonga. I should say yesterday and again today for that matter, your mother and stepfather are down from Ulladulla.
36 Your father is down from Cooma, and they have all been in attendance sitting together in the front row presenting a unified front for you. They really could not present a more unified position or provide stronger evidence of their desire to support you in your ongoing rehabilitation. So too the rental of the house to provide a realistic option to the court is a matter of significance.
Prosecution
37 The prosecutor at the first listing of the plea, Ms Fargher had likewise prepared some excellent written sentencing submissions that were marked as Exhibit C on the plea. They were lengthy and I do not intend to repeat them all now.
38 She made submissions as to the gravity of the offending and the principles in play, arguing that this was serious offending. Well that was conceded to be so by your own counsel. The Crown conceded the existence of a range of mitigatory matters here, amongst them of course your youth and the high importance of youth and rehabilitation when regard was had to the case law in that area.
39 The Director of Public Prosecutions was nonetheless calling for a head sentence and a non-parole period in this case, and that stance has not altered in the interim. On 27 July, I had called for an extended
Community Corrections Order assessment report. So not the pretty rudimentary ‘tick a box’ that we get in terms of the court assessments. This a far more detailed assessment and far more useful to me actually. That has now arrived and it was marked as Exhibit D on the plea even though it is not a Crown exhibit. There is also a document from Ms Saliba who has an extraordinarily lengthy title I will not pronounce, but it deals with the way in which Community Corrections Orders can be transferred interstate. That was marked as Exhibit E on the plea.
40 The Crown through Ms Van Dyk indicated yesterday that their stance as to sentence remained unaltered. That is, there was a call for a head sentence with a non-parole period. That was required here, owing to the gravity of the offending and the large impact, and that was so notwithstanding the obvious important matters that existed in mitigation, including your youth.
41 I will discuss the various competing submissions shortly.
42 I am not bound by submissions made by either side as to penalty. All I have to do is pay regard to anything that is raised before me. I do not just ignore anything that is said, but of course I am the person passing sentence. I have to reach my own decision as to the appropriate sentences to be imposed in this court. That is because I am the person exercising the sentence discretion. Not the Director and not Mr de Kretser.
Background
43 I will turn firstly though to your background before going to some of these various submissions. I will do that pretty briefly, as I have no reason not to accept what I have been told about your background. There is much material before me as to your background. There is no utility in my just rehashing it in these reasons. A brief nutshell will suffice.
44 You were born in October 2000 so you are now 21 but you were 20 at the time of these events.
45 Unlike so many who sit in that dock, you have actually been raised in a loving and supportive environment. Your parents separated when you were only an infant but each have forged new relationships. You lived predominantly with your mother and then with her new partner who then became her husband, that is Mr Marsh. There are a number of siblings. You have an excellent relationship with your stepfather, and as I have said, it is pretty obvious to me that your mother, father and also your stepfather are deeply concerned about you.
46 You initially grew up in Canberra. You attended primary school there but in 2010 when you were about 10 years of age, your mother, her husband Paul, you and the other children of their relationship relocated to Ulladulla up on the coast in New South Wales.
47 You completed Year 12 in 2018 and did quite well. It really was an uneventful background. The only hiccup along the way was the diagnosis of a bone growth disorder which required two bouts of surgery in 2015. It had a far greater impact the following year when the condition impeded your efforts to obtain entry into the Australian Defence Force or the Australian Federal Police. It would seem you had your heart set on a career in one or other of those organisations and that was then derailed.
48 You have had a good work ethic. You have worked even whilst at school, either at McDonald's, or assisting your grandfather's lawn mowing business or in your stepfather's business for that matter.
49 There is no history of poor mental health though there had been some insomnia in the past.
50 You commenced the course at RMIT in mid-2020 but that was online from Ulladulla. As I said earlier, you had high hopes that 2021 would be a big improvement for you. In fact, it was a disaster. You had moved to Melbourne, where you knew very few people. You were living in a very small student unit and within days of moving here with such high hopes, remote learning kicked back in. You were isolated from your loved ones. You had no campus life to speak of. You made no friends. You could not find work because no one was hiring. You could not even return home at around the time of the offences owing to the border closures.
51 You were struggling with the course and dissatisfied with aspects of it and you sensed that you would need to repeat much of what you had done the year before. For whatever reason, you didn't feel that you could broach any of these mounting stressors with your parents. You had a sense of shame about the problems in your life. They had not the slightest idea that you had been reduced to this state.
52 You were obviously in a very poor frame of mind by the time the offences took place. As I have indicated earlier, you have no criminal history at all. You are a genuine youthful first offender and that is of obvious importance to my task. You have not had issues at all with drugs or alcohol or any antisocial behaviour at all.
53 I have not descended to the details of the character references and I do not intend to. Again I have read them again since the plea was conducted. They spell out very plainly how deeply out of character this criminal conduct was. They spell out the way in which you had, for whatever reason, hidden your deteriorating state from your loved ones. You have much family support unlike many who sit in that dock. Your mother, your father, your stepfather all made the trip for the court case. Others were in fact coming to court in July but the COVID-19 Court protocols prevented their attendance and so instead your grandparents and a family friend, Ms Spoor joined the hearing by Webex. I note again that there are grandparents, step-grandparents and Ms Spoor and others joining the hearing again today.
54 You have been, in really every facet of your life, a decent caring and responsible person. You are in no way revelling in these offences.
55 You have been doing well in prison and you have been working as a billet in the hospital. You have not had personal visits from your family. One reason is of course, they live interstate. The other though, is the more limited regime in terms of visiting hours even with the relaxations arising since the resumption of visits in March of this year. It is not easy to visit in what is potentially a very small visiting window and with risks of lockdown and those issues are amplified if coming from interstate.
56 When I look at your background and the letters placed before me, none of those who knew you would ever have contemplated that you would offend in this serious way and yet of course you did.
Guilty Plea
57 I turn then to consider the other matters that have been raised on your behalf. The first of those matters is your guilty plea. You have pleaded guilty at what I will treat as the earliest opportunity. As a result of taking this early responsibility, the time, the cost and the effort of a committal hearing in the lower court, or a trial up in this court, has all been avoided. Witnesses have not been required to give evidence at a committal hearing or at a trial. Giving evidence in a trial can be a stressful experience. It no doubt would have been so for Ms Patpatia. She and other witnesses have been entirely spared that experience by virtue of your guilty plea.
58 You were also cooperative with the police. You handed yourself into the police in that bizarre long walk out to Fawkner, intimating that they would be looking for you. Well they were. You were polite even when declining to answer questions and of course exercising that right is not a matter in anyway in aggravation. It was your right.
59 You have facilitated the course of justice in these various ways that I have mentioned, and you must as a matter of law, be rewarded. Your guilty plea is worthy of extra weight for the many reasons set out in the Court of Appeal decision of Worboyes.[2] In the course of the global pandemic a very large backlog of cases has arisen in this court. Your case was never one of them. It was very swiftly settled indeed. So I take these various matters into account in mitigation of sentence.
Remorse
[2]Worboyes v The Queen [2021] VSCA 169
60 Now there are some statements in the report of Dr Davis as to the limitations as to your ability to feel empathy and to have full insight. You did say some things to him that were a bit jarring. I do not want to get too caught up on those sorts of matters. Those statements were made in November of last year. There has been a lot of water under the bridge since then and there have been many other statements made since then. You have written a letter of apology. I have no real reason to doubt the genuineness of that letter.
61 Others have observed, what they consider to be appropriate expressions of remorse by you. Why would you not be remorseful. You are a decent young man who has behaved in this extraordinary fashion and know that you have. You have pleaded guilty at the earliest stage and a guilty plea is often indicative of some remorse. I do not doubt that you feel a level of remorse for the crimes you have committed and for their impact, especially upon Ms Patpatia. You are a work in progress and no doubt there are aspects of your personality, which impact upon your abilities to feel empathy and have full insight. Those things are developing it would seem. But having reviewed all the materials, I am prepared to find there is a level of remorse in this case and I take that into account in your favour, as I must.
Rehabilitation and Youth
62 I turn then to your prospects of rehabilitation. This topic leads pretty naturally into a consideration of your youth and your lack of any criminal history. These things all intersect. The Crown in their written submissions took what they must ultimately have viewed as an unduly pessimistic view as to your prospects of rehabilitation. They described them in that document as reasonable. But in her oral submissions back in July, Ms Fargher who appeared to prosecute, submitted that those prospects were good. Your own counsel was more upbeat and submitted that those prospects were excellent.
63 You are a youthful first offender and I give full weight to that fact. I apply to my task the statements of principle to be found in cases such as Mills[3] and Azzopardi[4]. Your youth is very important here and it must lead to a moderation of the punitive purposes of sentencing and a far greater focus on rehabilitation. Young people are far less likely to consider the consequences of their actions. They are more likely to act impulsively. They are less developed and are generally judged to be less culpable. The benchmark for sending a youthful first offender to prison is undoubtedly a very high one, for we as judges understand the corruptive powers that exist in an adult prison setting. Exposing a youthful first offender to those sorts of influences might be quite counterproductive and is never something that is undertaken lightly.
[3]R v Mills [1998] 4 VR 235
[4]Azzopardi v R [2011] VSCA 372
64 Though it is done in the name of community protection and punishment, it can as easily corrupt and hence reduce the prospects of rehabilitation. It should not be forgotten but it seems to be often enough, that a rehabilitated offender is one for whom there is no need for community protection. So, I apply those various principles from these cases dealing with youthful offenders, I apply them to my sentencing task. The issue of youth is however not dealt with in every case in the same way. It will always depend to some extent on the nature of the offences. The more serious the offence, generally the less weight exists for youth and rehabilitation. More weight is devoted to the other purposes.
65 Having mentioned the importance of youth, let me focus on a few other areas germane to the assessment that I make as to your future prospects. You have no history before the courts at all. No issues with alcohol or drugs. No intractable mental health issues. A very supportive and loving family. An uneventful and trouble-free childhood and adolescence, and obviously enough a level of intelligence as well. You have stuck at jobs in the past and you are described in the material before me as kind and responsible. You were not too kind on this morning, I can tell you. Far from it. You have pleaded guilty at the earliest of stages and of course you are remorseful.
66 There are the risk assessments set before me. They disclose a low risk of reoffence. There is the positive Community Corrections Order assessment report that I received yesterday.
67 This offending was deeply out of character and it occurred in a setting of a most unusual deterioration in your circumstances in what was a most unusual year for all of us. For whatever reason, you felt that you could not reach out to your loved ones. You only did so in the course of the ordeal that you inflicted on your victim, making that phone call that I have described. Well your family are now on notice as to how dangerously low you sank in these months. You have been in prison in difficult circumstances for over 350 days and I am pretty confident you will have no desire to wind up back in a place such as that.
68 The treatment available to you in a non-custodial setting would have real advantages and really the sooner you get it the better. Dr Davis was not suggesting any great urgency in that respect, but said he certainly would not want to see the treatment (that is cognitive behaviour therapy) commence in five or six or seven years. Well you are still developing and he said the sooner it starts the better.
69 I have no doubt that you have very favourable prospects of rehabilitation and I am of the view that you present a low risk of offending in the future. I would be very surprised indeed if you offended in the future. I would rate you prospects of rehabilitation as being excellent, subject only of course to your undertaking the ongoing appropriate treatment and counselling.
COVID-19
70 I turn to the issue of COVID-19 and its impact upon you. I do accept that the COVID-19 virus and the response to it by those who run the prisons has increased the burden felt by prisoners. Prison has undoubtedly been a more stressful environment for you. No doubt there would have been some worries about catching the virus in such a setting. Someone out of the community, has some level of autonomy, but you do not as a prisoner. No doubt you would have experienced the increased burden of quarantine or lockdown on occasions.
71 There undoubtedly would have been some limitations to visiting and the full range of courses in much of the time that you have been held. There were blanket bans for visiting for much of that period last year and earlier this year. Even with those gradual reintroductions made this year, it has not had any positive impact for you as your loved ones are up in New South Wales and there has been a move away from the far less regulated visits that existed in pre-COVID times. Visits that no doubt, knowing the support provided by your parents, they would have taken up. You have at least had virtual visits and daily phone calls, but they are not the same.
72 It has not been a good time to be locked up and you are of course in custody for the first time.
73 As to what lies ahead in the future on the pandemic front well it is really impossible for me to determine and I cannot speculate about that. Those whose job it is to run the prisons will be able to reflect on the impact of any past and ongoing limitations on a case-by-case basis. They would have the power to address any actual increased burden in your case, by way of conferring emergency management days in relation to the sentence that I am about to impose. I cannot know if that will take place and I make it clear, I certainly do not proceed on the assumption that it will. To take into account that sort of credit of emergency management days would be for me to contemplate future executive action, and I am prohibited from having regard to that.
74 The prisons have tended to lag a bit behind the community in terms of restrictions being lifted. They also tend to bring restrictions back in more rapidly and for good reason. It is not unreasonable to think that prisoners may yet have some issues thrown up by COVID-19 in the coming several months. There are still some lockdowns in place and the day-to-day uncertainty that they cause upon prisoners is something I can have regard to.
75 So there is still a fair bit of uncertainty in a prison setting and that is not easy and I take that into account. So, I take into account the increased burden posed by the response to COVID-19 pandemic in the manner that I have described.
76 I turn now then to the submissions made as to the application of the principles from the case of Verdins.
Verdins
77 Your counsel relied on the 42-page report of Dr Davis. He called him to give evidence. I could spend the next 45 minutes dissecting that lengthy report, overly lengthy actually and the evidence given by the witness and the submissions made in this area. I see no need to do that. I generally act on the expert's opinion. I act on his opinion as to the low risk that you present. And that of course is supported by the Community Corrections Order assessment and everything else I know about you.
78 Submissions were made about the case of R v Verdins and the application of some of those principles from that decision. That case relates to the impact upon the sentencing process of mental health conditions existing, either at the time of offence, or sentence, or both actually. That is a gross simplification of those principle, but suffices for present purposes. Whether or not the Verdins principles are enlivened is not dependent upon establishing a particular diagnostic label. I accept there is still some debate as to the level of severity required before a personality disorder might invoke these principles. Again though, it is plain that what is important is the impact that a condition has, not its diagnostic labelling.
79 Now you fall just shy of being diagnosed as having a schizoid personality disorder. Dr Davis suggested that may be as a result of the conservatism he brings to a court assessment. The fact is you have features strongly suggesting that diagnosis. These features of your personality which hint at the diagnosis do not evaporate merely because the diagnosis is not made. They actually exist. They played into the major depression that you undoubtedly had at the time of this offending and the various other stressors spoken of by Dr Davis. The chief amongst those was the pandemic and the limitations arising from one as isolated as you were. You were seemingly overwhelmed by the combination of matters that are spoken of. You were suicidal, that much is very clear, and the offences were connected to bringing about that outcome.
80 It is a bit hard to imagine more compelling evidence of a person's lowered mental state than exists in this case. I am not going to repeat the various downturns in your life leading into these crimes. I have absolutely no doubt at all that you were not functioning at an optimum level. Far from it actually. You plainly were not exercising appropriate judgment. This is not one of those cases where there is the troublesome disinhibiting input brought about by alcohol or drugs, things that might entirely account for criminal conduct and totally remove from the equation any impact of the claimed lowered level of mental functioning. You were not a drug user.
81 You were not drugged, you were not drunk. These crimes in a way speak for themselves and they speak as to the existence of your lowered culpability. They were not rational. They were disordered. They were impulsive and they were shambolic. The fact that you were insisting that a woman kill you, speaks volumes as to your reduced level of functioning.
82 You had moved from the plan of obtaining the key to then permit you to throw yourself off the roof, to the next plan of having her kill you. Then leaving that plan and wandering aimlessly into the adjacent apartment. It was you who rang your parents in the midst of this conduct. Again, it is an impulsive display but one indicating that you wanted some intervention and some help, or you would not have made the call. You had not had the ability to broach any of your issues with them and yet there was still something within you that caused you to make this call out of desperation.
83 Now, none of these issues which undoubtedly touch upon your reduced culpability in any way reduce the impact upon Ms Patpatia. Indeed, the way in which you were acting was probably more terrifying owing to your very strange and irrational conduct. This was not someone with a logical motivation such as taking a wallet, or cash, or a phone and presenting a knife and making a demand. This was not someone acting out the role of a deeply disturbed individual. You were deeply disturbed, and it was that person making the threats and wielding the knife.
84 I have no doubt that there is some reduction in your moral culpability not just owing to your youth but also to your reduced level of functioning at the time. Limb 1, is made out though it is clear that you knew what you were doing and that it was wrong. Your condition did not obscure your intent or knowledge that you were committing a crime. Limb 2, is also made out and so too limb 3. There can be some reduction in the weight given to the principle of general deterrence. There was no submission that it was to be eliminated as a sentencing principle and plainly it cannot be but there can be some moderation. And that is because you are not an appropriate vehicle for the full weight to be given to that sentencing principle.
85 Well, there you have it. I have in these very broad terms stated my conclusions on the Verdin's submissions. No doubt, I could have expanded that analysis so that my sentencing remarks might rival the length of
Dr Davis's overlong report. I choose not to. I accept the submissions made on your behalf in these areas, and that is all I believe I need say on the topic. I note in conclusion that there was no challenge from the prosecution as to the application of these principles in this case. It is always just a matter of what weight is to be given to them. I conclude by stating that your counsel conceded that the 5th and the 6th limbs of that case were not made out here. That concession was undoubtedly correct. The evidence simply did not rise to that level.
General
86 Let me turn then to some general matters. I am required to take into account a large range of matters, including the maximum penalties and the nature and the gravity as well as the impact of any crimes committed.
87 I turn then to the offences. I will be focussing predominately on the indictment offences for obvious reasons. They're the most serious of the offences by far. Well, I need not say a great deal. Your counsel concedes that the false imprisonment and the threat to kill are each objectively viewed as serious offences. He is right. They were. They are. The armed robbery is also no minor example of that offence.
88 Though you have this reduced culpability, you had obviously engaged in some planning. You knew what you were doing was wrong, I am satisfied of that beyond reasonable doubt. You engaged in this ruse to have someone come with the master key. The offences then commenced and rolled on. There was though, clearly an aspect of impulsivity. Doing this and then doing that, and then swiftly moving to request that your victim kill you or she would die. But these threats were repeated. The period of false imprisonment was a terrifying one. There was also a knife. Ms Patpatia was ushered or pushed around the room. There is an aspect of overlap obviously. The false imprisonment does not require as an element any violence at all. It does not require threats, it does not require a knife. The elements are unlawful and intentional depravation of liberty. No more. No less.
89 Well this false imprisonment was a good deal more than just the bare elements, that is obvious. As I say, the threats were issued repeatedly and in a terrifying way. You were a desperate and disturbed young man, not just someone playing that role. That was who you were. The person that you robbed at knifepoint was a frightened vulnerable woman press-ganged into your room by a trick and then held there against her will. She thought she might die. She feared she might be raped. Her thoughts on that topic are relevant only as going to the impact of your actual crimes. I do not find against you that you had any such intention or even any intention to follow through on your actual threats. You were though a pretty terrifying proposition because you were so disordered and disturbed. It was that disturbed person holding the knife and making the threats.
90 The trespass and the controlled weapon charges are far less serious obviously. The summary assault upon Ms Patpatia was nasty enough, committed in such a setting as this. It cannot be divorced from the setting, you see.
Purposes
91 I have to consider a number of purposes of sentencing. I must pay regard to your prospects of rehabilitation. If rehabilitation was the only purpose of sentencing, then sentencing would be a pretty simple task, but it is not. If that was the only purpose rehabilitation, no one would ever be locked up. But it is not that simple. You have very strong prospects of rehabilitation indeed they are excellent and of course that is important. It goes hand in hand also with your youth. The rehabilitation of a youthful first offender is one of the principal objectives of the criminal justice system actually. As I said though during the plea, there are other purposes of sentencing as well. It is just not all about you and what is best for you or best even for your family. I am sentencing you for what are undoubtedly serious crimes. There are other purposes of sentencing which must be given appropriate weight.
92 I am required to punish you for your crimes. That is one of the purposes, but I must do that justly and I must do that proportionately. But plainly it is an important sentencing purpose here.
93 I must also denounce your conduct and that is also an important enough purpose of sentencing.
94 I must pay appropriate weight to specific deterrence and by that I mean the need to deter you, or dissuade you, from offending in the future. Given my judgment as to your low risk of reoffence and your very favourable rehabilitative prospects and bearing in mind your status as a youthful first offender, it stands to reason that this purpose can be very significantly moderated here. I cannot ignore it but of course it would be given far more weight if you had relevant criminal history or had breached past court orders, but you have not.
95 I must pay regard to community protection, that is another of the purposes of sentencing but for the same reasons, that purpose can also be very significantly moderated here.
96 General deterrence is still an important purpose of sentencing in this case. General deterrence relates to the need for this court to send a message to other offenders. When I say it is still an important purpose, I mean despite the moderation arising by virtue of limb 3 of that decision of Verdins that I have mentioned, and for that matter, your youth. This court must still send a message to others in the community who might consider this style of serious offending.
97 The courts do have a role in sending a message that will hopefully cause like-minded potential offenders to rethink their involvement in this sort of serious crime. Again though, there has to be some sensible moderation of that principle owing to your youth and owing to the mental health considerations that were operative on the morning.
98 I must have regard to the maximum penalties.
99 I also must pay regard to current sentencing practices. That is not a single controlling factor here. I have looked at the relevant Sentencing Advisory Council online sentencing statistics. I have looked also at the overviews of cases from the Judicial College of Victoria Sentencing Manual. The statistics disclose that the most common range of sentences where prison was selected for the crime of armed robbery fell in the range of three years to less than four years, and between one and less than two years for threat to kill where prison was selected. It was not always selected of course.
100 Your threat to kill, as I have said was essentially a rolled-up charge embracing the many threats referred to in that summary and the setting was a serious one indeed, taking place amidst the currency of that false imprisonment and reinforced by the man uttering the threats wielding a knife and seemingly a person having nothing to lose.
101 I am sentencing you for your crimes and that is not some mathematical or statistical task. No amount of looking at other cases or statistics will provide any answer to my task. Other cases are not precedents, they do not drive my task at all. Nor for that matter is there any such thing as one correct sentence to be imposed by a court. There is a range of sentences.
102 As to statistics, they have inherent limitations. They omit all of the detail of the matters both in aggravation and in mitigation, the things which would actually go to explain a particular sentencing outcome.
103 I am not here to pass sentence based on what has been the most common sentence imposed in the past. As I have said, I am exercising a sentencing discretion in your case. It is in my view an unusual case with a first time offender committing these undoubtedly serious crimes. A first time offender who was disturbed at the time and who has excellent prospects of rehabilitation, yet one who has committed frightening and very serious crimes with deep impact indeed. These are just some of the tensions that exist in relation to this sentencing task. They are always on display whenever a court is dealing with a youthful first offender who has committed a serious crime. It is why sentencing is actually not easy at all.
Totality
104 I take into account the principle of totality of sentence. I have a variety of offences of varying levels of seriousness. They are all committed on the same morning, most in the very tight episode up in your unit. The victim for the three indictment offences was Ms Patpatia. Each offence against her was serious. Each no doubt contributed to her overall impact. But of course, there is a connection. The trespass is far less serious and had a much lesser impact upon Mr Xin. The summary assault was committed upon Ms Patpatia as I said was nasty enough. The controlled weapon offence relates to the knife out at the police station and is far less serious.
105 I have engaged in a last look at the effect of the sentences to satisfy myself that the overall effect is commensurate with your overall criminality. That is what I have to do when considering the principle of totality.
106 Prison is always a disposition of last resort for a court. Mr de Kretser was not suggesting that a standalone Community Corrections Order was open in this case. He was conceding the inevitability of a prison term. He was arguing though for a combination type order with the imposition of a prison term and your release onto a Community Corrections Order, either forthwith or in the not-too-distant future. He argued that the various purposes of sentencing could be achieved by such an order, even one where your release was immediate. That such a disposition could achieve all the purposes of sentencing in this case. He referred me to the well-known case of Boulton[5] which spoke of the change in the sentencing landscape brought about by what was at the time of the decision being delivered a new disposition, that is a Community Corrections Order, which at that stage could be imposed with a sentence of up to two years' imprisonment.
[5]Boulton & Ors v The Queen [2014] VSCA 342
107 The Crown challenged the availability of such a disposition and argued in support of a head sentence with a non-parole period being fixed.
108 I have had you assessed. You have engaged appropriately in the assessment process, that much is plain to me.
109 I have received back a very detailed and useful extended assessment report, marked as Exhibit D, saying that you are suitable for a Community Corrections Order. It is a positive report and it fortifies my view as to your prospects of rehabilitation and the low risk that you present. I also have the letter detailing the limitations as to the interstate transfer of any Community Corrections Order, the letter from Ms Saliba.
110 I am not at all surprised by your suitability for such an order as this, but I have told you and your family throughout to take no comfort from my calling for the assessment. I was exploring all options and though a head sentence and non-parole period looked more likely back in July when the plea was conducted before me, I could not categorically rule out then the potential availability of some form of combination type disposition such as was mooted by your counsel.
111 So I called for the report and have now received it.
112 Your family hope that you can be released back into the community onto such an order. Your family are providing structured accommodation. A house has been rented in Wodonga since the plea was conducted in July. You have relatives (an Uncle and some cousins) living in Albury and others living in Wagga, which is not that far away. As well as a father, who lives not that far away, and mother and stepfather who would also spend time in that house with you. The hope was that you might be released onto a Community Corrections Order and at some point such an order might be transferred up to New South Wales to permit you to return to live with your parents. Well, I would have no role to play in any such transfer but I have received that letter from Ms Saliba dealing with the manner in which that can be achieved and the impediments to any such transfer of an order.
113 Prison is always a disposition of last resort. That is the law. A judge can only confine a person if the lesser alternative not involving confinement would not achieve the various purposes of sentencing. Your counsel concedes that prison is warranted here but points to the existing pre-sentence detention and says that is sufficient.
114 Secondly, if I must imprison you, and I must here, it can be for no greater time than is required to achieve the purposes of sentencing.
115 I have considered whether a combination type order is available to me. Of course, I have at my disposal a period of 12 months over and above your existing pre-sentence detention. Your counsel Mr de Kretser is arguing in support of a more timely release. He argues that it is not just in your interests but also in the community's interests to release you onto such an order sooner rather than later. I believe there is no alternative, other than to impose a term of imprisonment upon you for the charges on the indictment and also for the summary assault. That much is conceded by your counsel. I take a different view in relation to the trespass and the weapon offence out at the police station.
116 Very commonly for crimes involving false imprisonment, armed robbery and threat to kill, there would be a head sentence and a non-parole period both measured in years, and that is what the Crown submits is warranted here, that is to say a head sentence and non-parole period, though they have not presumed to make any submission as to range. They are prohibited from make a submission as to actual numbers. They argued that a combination type order is not open to me even though I would have the ability to impose an additional 12 months' imprisonment above your existing pre-sentence detention.
117 The Director's submission is a bit puzzling to me at least, as that option would equate to almost two years in prison. Exactly what the advantage of parole would be in this case is a bit hard to follow, for me at least. Your counsel argues that you have done sufficient time in custody and that your release, even if it was not today, should be managed by way of a Community Corrections Order and not by order of the Adult Parole Board.
118 Ultimately, I do not agree with the submission made on behalf of the Director of Public Prosecutions. Nor though do I agree entirely with your counsel's submissions.
119 Having reviewed all of the materials, despite the seriousness of your crimes and the very deep impact caused to Ms Patpatia, I believe that owing to the various matters raised in mitigation, it is in fact open, to admit you to a suitably conditioned Community Corrections Order which will take effect upon your release of imprisonment. That in the unusual circumstances of this case, such an outcome is actually open to me.
120
As I have said, often enough for this style of offending, there is a head sentence and a non-parole period, each measured in years not months and in a setting such as that, with no ability for the offender to know whether or not he will be released on parole. In that setting, that decision rests entirely with the
Adult Parole Board and there is never any certainty as to whether there will be release on parole. No certainty for you, no certainty for your family. That will not be an issue here for you.
121 In proceeding in the way that I propose to, I can significantly limit your exposure to prison. I can shorten that exposure to prison whilst providing for your treatment, rehabilitation and indeed you ongoing punishment in a far less punitive setting upon your release from prison. This would have you serve, at least relatively speaking for these sorts of crimes, a reasonably short prison sentence, before being released onto a lengthier Community Corrections Order. So, I agree with your counsel's submission that a structured release onto a Community Corrections Order is in fact available to me in the sound exercise of my discretion, but I disagree with the submission that your release should take place immediately, that 352 days is sufficient for the prison component of such an order. It is not.
Ancillary Orders
122 Now, there is a disposal order sought in relation to the knives that are referred to in the schedule attached to the order. No opposition is taken to the making of this order. I am satisfied that the relevant criteria on s78 of the Confiscations Act are made out here. I order pursuant to those provisions, the forfeiture to the State of that property referred to in the schedule, I direct that it be handled and managed in the way contemplated by the signed order, which I have announced really only in an abbreviated fashion. I have signed that order.
123 Let me pronounce sentence upon you. I will have you remain seated I think in the circumstances.
Sentence
124 As I am going to pass a combination type sentence what I will do is pass an aggregate prison sentence for the three charges on the indictment before me. That is because of the unity of that conduct and also because the prison sentence is but part of the total sentence for those three matters. There is the addition of the Community Corrections Order.
125 I will pass a separate short sentence for the summary assault charge. I do not believe prison is even warranted for the other two summary offences and I will deal with them at the end of the other sentences.
126 So on Charges 1, 2 and 3 on the indictment, so, that is charges of the false imprisonment, threat to kill and the armed robbery, I convict and sentence you to an aggregate period of 15 months' imprisonment. In addition, on those three charges, you will be convicted and I will admit you, and this is subject to your consent and I will ask you about that, to a two and a half year
Community Corrections Order which will take effect upon your release from prison, whenever that is. Now, as I say, the order will take effect upon your release from prison upon the expiry of that 15 month term of imprisonment, but it is not as simple as me selecting a date in the diary and marking that as your release date.
Section 18
127
I am going to be giving you credit for the time that you have already served, I am required to do that. So you have served already 352 days of that
15 month term. The fact is, that even if you were to serve every day of that
15 months, and I must assume that you will, it is not too distant an event until you will exit prison. But, as I'm sure you will be aware, it may be earlier than that. Not that I factor that in here, but you may well get credit for some emergency management days. I can make no assumption about that, but I suppose you will know soon enough the extent of the credit coming your way if any, in terms of emergency management days. So, it is possible in theory that you might actually be exiting prison earlier than that 15 month period.
128 Again, though I make plain that I do not have regard to that, but I raise it merely so that your parents have that understanding as to the possibility that the Wodonga placement may be pressed into action sooner rather than later.
Other summary offences
129 On the summary assault you are convicted and sentenced to 14 days' imprisonment. That will be served concurrently with the prison sentence imposed on the indictment matters.
130 On the trespass, you are convicted and fined the sum of $300. On the control of weapons charge, likewise you are convicted and fined the sum of $300.
Community Corrections Order
131 Now I need to explain the terms of this Community Corrections Order. I know that you understand what these orders involve, it has been explained to you by the assessment officer and I am told that you would consent. But I still need to go through this, and explain it myself, because at the end of this, I will need ask you whether you will be consenting to this order. So, I do not want anyone to consent to an order without knowing what it involves and the ramifications of breaching an order that is proposed, so, bear with me, I will explain this in a bit of details. I will give you a chance to speak to Mr de Kretser and then I will ask you whether you consent to the order.
132 So, I have said on these three charges you will be admitted, there is firstly the 15 month term of imprisonment by way of aggregate, you have already served 352 days of that. There is also this two and half year order. A
Community Corrections Order that takes effect upon your release from prison. So, it does not have a specified date it says it commences upon the completion of the imprisonment term. Your obligation is to contact Corrections within two clear working days to report to Corrections within two clear working days of your release, all right? You will get a copy of this document too.
133 I am treating the Firestone Way, West Wodonga as the residential address and so I am specifying that you will need to attend at the Community Corrections Centre, 9 Watson Street in Wodonga within two clear working days of this order starting. So, as I say, when you are released from prison, you have got to report within two clear working days. Get straight down there. In fact, there's a phone number on the document, ring that number first and they will give you further directions as to what to do. I am just not sure whether they are requesting in-person attendances during the pandemic or not, I think they are getting back to the point where they are. Ring the number, they will let you know what to do.
Mandatory Terms
134 Now these orders have got mandatory terms, that is they apply to everyone who gets one. Again they are on the document I am not going to spend that long dealing with these. But the first is that you must not commit any offence for which you could be imprisoned during the time the order is in force. For two and a half years you stay out of trouble. That should not be a problem for you, you have stayed out of trouble your whole life, other than this obvious exception.
135 You commit any offence punishable by a term of imprisonment in the two and a half years of the order you breach the order. And these days virtually every offence is punishable by a term of imprisonment. It does not require you to be sent to prison, it is to commit an offence that could in theory, be punished by a term of imprisonment. Just to illustrate it further. I do not think I really need to here for you, I do not expect you are going to offend again, but if someone went in and stole a Freddo frog, that is a charge of theft. I do not think there is any Magistrate in their right mind who would lock someone up for stealing a Freddo frog, but even a theft of that sort of item would breach this order, because in theory it can be punished by a term of imprisonment. So you stay out of trouble. It should not be an issue.
136 You have got to report to and receive visits from your Community Corrections Officer. You've got to let them know within two clear working days of any change of address or job. You do not just get up and move. As I say you have got to report within two clear working days as well. You must not leave Victoria without first getting permission to do so from the Community Corrections Officer.
137 If there is a good reason to be leaving, no doubt they will give you permission to leave. But you do not just get up and leave. You have got to also obey all their lawful instructions and directions. So they're the mandatory terms. They should not present any issue for you at all, because that is the way you have lived your life, really. So, it should not be an issue. For a lot of people it is a massive issue complying with these orders. It should not be for you. You do not have the raft of personal issues that makes compliance so difficult. So, intractable drug problems, or some sort of criminal bent disclosed in the past history before the courts, there is nothing like that here. So they are the mandatory terms, breach any of them, you breach this order.
138 Then there are the tailored special conditions that can be attached to these orders. It is a matter of what special conditions I attach. In considering the special conditions I do pay regard to some of the potential impediments posed by unpaid work. I say impediments but I am really speaking of impediments to the transfer of the order. It is not my task to transfer the order but I must say, I regard the placement in Wodonga, though I can understand why it has been sought, and why the rental has been undertaken and it is sensible that it has been, but I regard the placement in Wodonga as not being really in your best interests.
139 Isolation from your family had a role to play in your deteriorating mental health predicament last year. It strikes me at least, that the best place for you is actually to be back home with your mother and stepfather and trying to rebuild your life from there rather than in a way, being stranded in a border town, one which has been selected because it is a border town. The conditions of this Community Corrections Order prevent interstate travel. Unpaid work if I fixed upon it as a special condition, would then be a potential obstacle to any transfer of this order. Unpaid work is unmistakably punitive of that there is no doubt, but of course it should not be forgotten you would have had the sizeable punishment already represented by the close to 12 months that you have served in an adult prison in tough COVID times to this point, as well as the balance of the 15 month term which lies ahead.
140 So, in those circumstances and for those reasons, I have decided that I will not impose any unpaid work as a condition here. So there are going to be the two special conditions. The first of those is that you will be under the supervision of a Community Corrections Officer for the full period of this order. Secondly, there is a mental health treatment condition, you must undergo any mental health assessment and treatment as directed by the regional manager. The full condition is much longer than that but that is what it amounts to. So they are the full suite of mandatory terms and special conditions.
141 As I say, unpaid work I think is not necessary here owing to the particular features of this case, the desirability really of this order ultimately being transferred if it can be, and the fact that you have undertaken significant punishment by being in prison for the time that you would them have been imprisoned. Very many of the people that I give these orders to I expect that I might see again, it is just the reality. Because many of the people that sit where you sit here, do not have the support that exists for you. They do not have homes, they do not have family that love them, they do not have much of a future at all. They have major issues with drugs of addiction or intractable mental health issues.
142 There are all sorts of things and sometimes not even a home to live in. All sorts of things that present as obstacles to compliance with this sort of order. And then there is someone like you and it should not be difficult for you to comply with it. Because if I look at your background and life over the course of your life, other than this event in the early hours of 3 October of last year, you have ‘ticked every box’. I expect you will continue to do that now. But, one never knows and I need to explain at least some of the ramifications of breaching these orders. The starting point of course is there will be a
Community Corrections Officer appointed. Form a decent relationship with them. That should not be an issue with you. Not at all.
143 Form a decent relationship with them. If they are giving you any direction under the order, this is whether it is in Victoria which it is, or if it happens to be transferred interstate, well, the same thing applies. If there is anything you are being asked to do under the order that is going to be extremely difficult in terms of a mental health assessment or treatment or supervision upon you that conflicts with something else, just raise it with them. Get on the phone, speak to them and they will reschedule. If you just don’t turn up and then claim after the event that you had some good reason to, you will be breached all right? It happens all the time.
144 It should not be an issue for you. You need to, as I say form a relationship with the Corrections Officer. If you are needing any assistance ask them for assistance. Again it is one of the reasons you are where you are is you did not ask for assistance. You had lots of people who would have provided it and, the shame is you did not actually seek it. Well if there is anything you need, any issues that you have got, raise it with the Corrections Officer and they will look after you. What happens if you breach this order? Well if you breach any of these mandatory terms or if you breach any of these special conditions, the supervision or the treatment and rehabilitation then it comes back to court. Breaching one of these orders itself is a criminal offence, punishable by a term of imprisonment of up to three months I think it is, but that is not the real sting.
145 The real sting is if you breach it, you come back to court and it is not the Magistrates' Court across the road, and not just a court in this building. It will be in front of me because we deal with our own breaches. I do not expect I will see you again, but if I do, you need to understand what lies ahead. I would need to take into account the extent of compliance with the order. I couldn't possibly predict now exactly what would happen upon any breach, because I would need to assess the nature of the breach and the extent of your compliance on the order. So, I can't say exactly what I would do, but understand this. There are only very limited options to a court in the event that a person breaches one of these orders.
146 The Director of Public Prosecutions of this State was asserting that it was not open for me to even place you on this order. I disagree. I am doing it. Not because your counsel is asking me to do it, but because I think it is actually appropriate in the sound exercise of my sentencing discretion. But do not think that there would be a second chance, that is the point I am making. If you breach the order that I am making, as I say there are only very limited options open to the court and the most commonly exercised option is to cancel the order. Well, that sounds all right, cancelling the order that sounds almost perfect, except if I cancel the order it is then a re-sentencing exercise.
147 So you are back in the dock of this court with me then having to re-sentence you in a setting where I have given you a combination type order and it has been breached. If that takes place, you should expect that you will be sent to prison with a head sentence, with a non-parole period. Right? Do not think it is as simple as coming back and saying look I’ll a second chance on that order if you would not mind. Do not expect that at all. I am, for the reasons I have announced, placing you on this combination type order here today. I believe it is open to me to do so, but do not expect that you will get a second such order if you breach it.
148 So let me just satisfy myself. As to transfer, as I say, it has got nothing to do with me. But there is nothing in this order at least that I am aware of that would impede that application being made on your behalf. And for what it is worth as I have said, it seems to me the best place for you to be would be up in Ulladulla and being supervised out of, I think it's probably Nowra or something like that, but that is not for me to order at this stage. I am only in a position to pass sentence in this State, so if it is transferred then everything I have said about this order applies with equal force, because if you breach it, it comes back here.
149 It does not go back to some judge off the interchange bench up in New South Wales. It comes back to this state. Let me just have a look my notes.
Mr de Kretser I have spent a fair bit of time explaining that, do you want to have a chat to your client, you will be satisfied presumably that I am getting informed consent, if I ask him, or - - -
150 MR DE KRETSER: Yes, Your Honour I won't need very long if I can just approach His Honour's associate with the documents and - - -
151 HIS HONOUR: Yes. Sorry, I've got a - I'll just have a look at - I'm right in - there's nothing in that - any of those materials that suggest that supervision poses any sort of issue is there that I could see?
152 MR DE KRETSER: No, not from the document that I have seen Your Honour.
153 HIS HONOUR: Yes, all right. Well I'll have that come down to you, have a look at that and see if it fits the bill and we'll show it to the prosecutor as well I think and then we'll have it taken down and just see if I'm getting informed consent from your client.
154 MR DE KRETSER: Thank you, Your Honour.
155 HIS HONOUR: Thank you.
156 MR DE KRETSER: He's signed that.
157 HIS HONOUR: Mr Kent if you would stand up please? Do you confirm then that you consent to entry into this Community Corrections Order?
158 OFFENDER: I do.
159 HIS HONOUR: All right. And you understand the effect of this order? What you have to do?
160 OFFENDER: Yes.
161 HIS HONOUR: And you understand the ramifications of breaching this order if you breach it you will be brought back to court and potentially you would be facing a head sentence with non-parole period by way of re-sentencing exercise, do you understand that?
162 OFFENDER: I do.
163 HIS HONOUR: All right. So, you consent to entry onto this order?
164 OFFENDER: Yep.
Section 18
165 HIS HONOUR: All right, thank you, have a seat then for the moment. I need to formally declare the time that he's served as s18 pre-sentence detention pursuant to this sentence, so, Mr Kent has served a total of 352 days by way of pre-sentence detention and that s18 declaration is entered into the records of the court, he gets credit for that time.
Section 6AAA
166 I have also taken into account the fact of the your guilty plea in this case. I have said I have taken that into account and by way of mitigation and I will now disclose the extent of the benefit achieved.
167 If you had pleaded not guilty and been found guilty of these offences by a jury, there would have been no question of a combination type order. It would not have been open to me. I would have sent you to prison for four years and nine months. I would have fixed a non-parole period of three years and that declaration made pursuant to s6AAA of the Sentencing Act is also to be entered into the records of the court.
168 Let me just see if there's anything else I need to deal with from your perspective, Ms Kennedy, anything else at all?
169 MS KENNEDY: No, nothing further Your Honour.
170 HIS HONOUR: Mr de Kretser, anything else I need to - - -
171 MR DE KRETSER: No, Your Honour.
172 HIS HONOUR: You'll go down and see your client downstairs I'm assuming. We'll get a copy of this document Mr Kent. As I say your release is not too distant an event, given the nature of the sentence I have imposed, it being 15 months, you've served 352 days of that. So, upon your release it's to be hoped that you can really resume what looked to be a pretty decent trajectory in your life all right? You need to try and move ahead with your life and get back hopefully to some form of tertiary study and maximise your chances. One can only hope that your victim Ms Patpatia can pick up the trajectory of her life and the reason she has been so impacted is because of your crimes. Anyway, look, there's a copy of this that'll come to you
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