Director of Public Prosecutions v Kniese

[2017] VCC 1799

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-00090

DIRECTOR OF PUBLIC PROSECUTIONS

v

DANIEL KNIESE

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	30 November 2017
CASE MAY BE CITED AS:	DPP v Kniese
MEDIUM NEUTRAL CITATION:	[2017] VCC 1799

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C. Parkes
For the Accused	Mr P. Skehan

Pages 1 - 18

 

 

HER HONOUR:

1Daniel Shane Kniese, you have pleaded guilty before me to one charge damaging property, one charge of common law assault, one charge of recklessly causing injury, one charge of recklessly causing serious injury, and one charge of failing to stop or render assistance after an accident.

2You have also pleaded guilty to two summary charges uplifted, pursuant to s.145 of the Criminal Procedure Act, they being a summary charge of driving whilst authorisation to do so was suspended, and by breaching a family violence intervention order, by contacting the protected person by phone.

3The facts underlying your offending are as follows.

4The victim of the common assault charge, that is Charge 2 on the indictment, Jennifer Cantwell, had been in a relationship with you for about three months, that relationship ending in mid-January 2016.

5You were living at 7 Koel Court in Carrum Downs.  In the afternoon of
11 February 2016, Ms Cantwell was staying at your home and had been doing so for a few days, as the two of you were having discussions in relation to reconciling.

6At about 3.50 pm, you and she were arguing on the front porch of your house near the driveway, during which time you became angry, verbally abused her, threw her bag on the front lawn, and threw her mobile into the front yard, breaking its screen, and causing it not to function properly; those actions underlying Charge 1 on the indictment, criminal damage.

7You then grabbed Ms Cantwell, she then grabbed you by a lanyard hanging around your neck, pulling you to the ground, and you hit her to the face a number of times with an open hand.  You let her go, and went inside the house, while she gathered up her things, ran down the driveway and out into the road towards the bowl of Koel Court, at which time she was crying and screaming.  Your actions in hitting her underlie Charge 2 on the indictment, common law assault.

8Another neighbour, Mr Wyatt, saw you from you inside his house at the time you were assaulting Ms Cantwell, he living across the road from you, and also saw her running down the court. He went to her assistance, and tried to help her.  Meanwhile, a couple, Margaret and Robert Rogerson who also lived in Koel Court, were at this time, unloading groceries from their car outside their home.  They also approached Ms Cantwell to assist her, she telling them you had assaulted her.

9Mrs Rogerson put her arms around Ms Cantwell and comforted her.  A short time later, you reversed your car, a Holden Commodore Sedan out of your drive way and drove into the bowl of Koel Court, where Ms Cantwell, the Rogerson's and Mr Wyatt were standing, and stopped.

10The driver's window was down, and you yelled at Cantwell.  You were aggressive and angry, and told the Rogersons and Mr Wyatt to, "Mind your own fucking business".

11At this time, Mrs Rogerson was standing near the driver's side of your car, when suddenly, you turned the steering wheel of the car to the right on full lock and accelerated in a clockwise direction.

12Mr Rogerson managed to move out of the way of the car, but Mrs Rogerson, who was standing closer to the car, grabbed hold of the B pillar of the car as it came towards her, to stop herself from being hit and falling over.  She was then dragged alongside the car as you accelerated, yelling "Stop, stop, stop" and fearing for her life.

13Your car then hit a concrete curb further down the street, the impact throwing
Mrs Rogerson onto the road, where she hit her head and became unconscious.  Your actions in driving the car in this way, and causing this injury to
Mrs Rogerson, underlie Charge 3 on the indictment, recklessly causing serious injury.

14You drove on to the nature strip, and back on to the road, continuing in a clockwise direction, and then back into the bowl of the court again.  At this time,
Mr Rogerson was assisting his wife, who was still unconscious on the road, and you continued to drive your car around the bowl.

15Mr Rogerson put his hand up to signal you to stop, but your car struck
Mr Rogerson to his right leg and foot, and you then drove out of the court at fast speed.  Your actions in injuring Mr Rogerson on this occasion underlie
Charge 4 on the indictment, recklessly causing injury, and Charge 5 on the indictment, failing to stop and render assistance after an accident.

16Mr Wyatt, during all this, was phoning police on 000.

17Another neighbour, Deborah Cochran witnessed the accident, and she and
Mr Rogerson, assisted Mrs Rogerson who had regained consciousness and was bleeding heavily from the head.

18Police and an ambulance arrived shortly after.  Police examined the scene, and saw a large scrape mark on the concrete curb and a tyre mark on the nature strip outside No.14. 

19Mr and Mrs Rogerson were taken by ambulance to the Alfred Hospital.  There, Mrs Rogerson was found to have suffered the following injuries; unconsciousness, a 2 centimetre laceration to her scalp which required stapling, lacerations to her right elbow and right ankle, a chipped front tooth, fractures to two of her ribs, and a fractured pelvis.

20She was discharged from hospital on 12 February 2016 with analgesia and the use of crutches, which she remained on for about for about four to five months.  I will refer to her victim impact statement shortly, but she is now on daily medication and uses a pelvic brace.

21Mr Rogerson was found to have suffered the following injuries, being tenderness over the right knee, calf, shin, and foot, a sprained and swollen right ankle, lacerations to his right lower leg, an un-displaced fracture to the fibula bone in the lower right leg, and lower back pain.  He was discharged that day with analgesia and the use of crutches, which together with a walking stick, he used for about five weeks after the incident.  He continues to suffer ongoing back and knee pain, and is on daily medication.

22Ms Cantwell did not seek medical treatment, although she suffered pain, bruising, and soreness to her face.

23At the time of your offending, your driver's license was suspended.

24Police attended your home finding your car parked in the backyard. They then took photographs, observing a gauge mark out of the left front rim, consistent with the observations they had made on the concrete curb at
No.14 Koel Court.

25They knocked on the front door and asked you to come outside, you responding after a few minutes, coming to the door and saying, "Is she dead?".  The informant, Leading Senior Constable Steve Mottram replied, "Who?" and you responded, "The old lady".

26You were told that Mrs Rogerson was not dead, but badly injured, and police asked you to come outside so they could talk to you.  You were reluctant to open the door, but eventually did so, and were arrested.

27You were taken to the Frankston Police station were you were interviewed.  In that record of interview you told police that you did not know why police had been called, who had called them, or why.  When asked what you were doing at the time of this incident, you said you went down the court to talk to
Ms Cantwell.  You said you drove the car down the court.  You said that you stopped about ten metres away from Ms Cantwell in the bowl of the court and were, "Just going to say something to her".

28You told police that Mr and Mrs Rogerson rushed over to the driver's side window of your car, and that you thought Mr Rogerson was going to punch you, so you drove off, went up the gutter and, "Realised the old lady was lying on the road".  You said you realised that because Ms Cantwell was screaming.

29You said Mr Rogerson had said something aggressively, causing you to drive away, and you parked your car in the backyard because you were having trouble reversing.  You said you tried to ring 000, but hung up as you thought other people would already have rung and, "I didn't want to block the line off".

30You said you went inside the house and lay down on your bed.  Asked about whether you had made any attempt to assist Mrs Rogerson, you said that you stopped, but that you were, "Scared for my safety, like that's the reason I took off in the first place, because like I was - I thought he was going to come and punch me through the window".

31You answered, "No comment" to questions about what had happened at your house before you drove down, whether Ms Cantwell had been staying at your house, whether you had ever been in a relationship with her, whether you had an argument with her, assaulted her, and smashed her phone.

32When asked about what your intention was in driving down the court to speak to Ms Cantwell, you said, "Just to tell her something out of the car window from approximately 10 metres away",  then went on to say that it did not really matter, and that you would say no comment .

33You claimed that when you saw Mrs Rogerson lying on the ground, you said to Mr Rogerson, "Is she all right buddy?" and, "He said something in a fucking aggressive manner, and like at that point, I figured I couldn't render any assistance”, that being because, "I was scared of his aggression towards me".

34You claimed that the catalyst for this incident was Mr Rogerson coming up aggressively to the car, "Which had nothing to do with anything apart from them doing that".  You said you did not drive away very quickly and you claimed you were not particularly angry when Mr Rogerson walked up to you.

35You denied driving deliberately at the Rogersons.  You admitted your driver's license was suspended, and said you did not walk up to speak to Ms Cantwell, rather than drive, because you wanted to "Just say something from a distance, that might be helpful for her to know" and, "I thought it was in everyone's interest to do it by car".

36You admitted that when police came to your house you asked if Mrs Rogerson was dead. 

37You were then charged and released on bail, one of the conditions being that you were prohibited from contacting prosecution witnesses, other than the informant.  You were also prohibited from contacting Ms Cantwell, pursuant to the conditions of a family violence intervention order.

38On 23 January 2017, a committal hearing was listed at the Melbourne Magistrates' Court, at which time Ms Cantwell was due to attend court to give evidence.  On the evening of 22 January 2017, Ms Cantwell was at her grandparents' home, when she noticed she had three missed calls from you. 

39At 8.27am on 23 January 2017, you called Ms Cantwell on her mobile phone, asked her if she was going to court that day, and encouraged her not to.  You expressed concern for her wellbeing, told her how much you loved her, and then said if she wanted to help you, she could tell the court, "How I had torn the chain from around his neck, as we were getting into his vehicle" thereby leaving you with the story that it was, "Simply him in the bowl of the court, being intimidated and interfered with by the Rogersons".  Ms Cantwell refused to act in the way that you wished.

40This matter proceeded by way of a contested committal, at which all witnesses, including the Rogersons were called and cross-examined.  You were committed for trial.

41Ultimately, the matter was listed for trial on 21 August at which time whilst it was on the reserve list, discussions took place, a plea indictment was negotiated, and you entered a plea of guilty.

42The maximum penalty for criminal damage is ten years' imprisonment.  The maximum penalty for common assault is five years' imprisonment.  The maximum penalty for recklessly causing serious injury is 15 years' imprisonment.  The maximum penalty for recklessly causing injury is five years' imprisonment.  The maximum penalty for failing to stop and render assistance after an accident is ten years' imprisonment, or 1200 penalty units. 

43The maximum penalty for contravention of a family violence intervention order is two years' imprisonment, or 250 penalty units or both.  The maximum penalty for driving whilst suspended, is four months' imprisonment, or 30 penalty units.

44I now turn to your personal circumstances. 

45You are now 31 years of age.  According to what you told psychologist Dr Aaron Cunningham, whose report dated 17 November 2017 was tendered on the plea, your parents separated when you were about five.  Your father was a heroin addict.  On an access visit to your father's when you were 5 years old, you ran into his home, and found that he had committed suicide by stabbing himself.

46Your mother who at that time was employed, took you and your older brother Matthew home, she herself ceasing employment, to thereafter care for you.

47You completed Year 9 at Wheeler's Hill High School, although you apparently struggled with reading and writing, and then completed a pre-apprenticeship over one year, at Box Hill TAFE. 

48You then worked at Plaster Perfect for three years, where you were let go due to lack of work, then worked between the ages of 23 and 24, for a sign installer, and then with a second sign installer, and then for a carpentry business, where you undertook an apprenticeship working for that company Profix for about two years, when your apprenticeship ended because the work ran out.

49You then sought to continue your apprenticeship with a second employer, DT2 Maintenance for 18 months, but this ended due to personal difficulties, which I will refer to shortly. 

50You left home when you were 16 to live with a girlfriend, Carolyn Piggott.  You remained in a relationship with her between the ages of 16 and 20.  The two of you have a 12 year old son, Hayden, and for the first nine years of his life, you had 50 per cent custody. 

51Then in 2015, following you having full-time care of your son for three months whilst Ms Piggott was in hospital, apparently in a psych ward, you attended school to pick him up to discover that she had taken out orders prohibiting you from having any access with him at all, and indeed, you have not had any access since.

52Apparently, you began using pills and amphetamine in a recreational sense on weekends, from about age 19, but began using methamphetamine from the age of about 25.  That escalated in the wake of a relationship breakup at that time, and escalated even further once you lost contact with your son.  At the time of this offending, your counsel informed me you were smoking up to half a gram a day. 

53You began in the context of methylamphetamine use, to gamble problematically, which you ceased doing in about June 2015, after losing $20,000 on the pokie machines.

54You were tested by Dr Cunningham, and found to have significant symptoms of anxiety, but did not present with any personality disorder.  You also presented with symptoms of drug use, and post-traumatic stress, which he said stemmed from your childhood trauma, however, said you were not currently suffering sufficient significant symptoms of post-traumatic stress disorder to meet a full criteria for it.

55At some stage in your mid 20's, you were involved with a woman, Elizabeth; that relationship ended, and you then crashed a car at 180 kilometres into a wall, in a suicide attempt.  You also told Dr Cunningham that in December 2015, you swallowed 80 Valium tablets in a second suicide attempt.

56It was Dr Cunningham's opinion, that you presented with symptoms of anxiety and depression, which you were managing, and which he described as,
“maladaptive adjustment to the loss of contact with his child". It was
Dr Cunningham's opinion that you were suffering from adjustment anxiety and depression at the time of your offending, which would have contributed to your drug use, by increasing your sense of recklessness.  He stated, however,

"In my opinion, there is not a realistic connection between Mr Kniese's anxiety and depression and offence behaviour.  His abuse of methylamphetamine presents as a more direct contributor to his offence behaviour.  His offence behaviour reflects recklessness and aggression, which both correlate with methylamphetamine abuse".

57It was his opinion your mental state would improve once you abstained from drug use, increased your stability through accommodation and employment, and worked towards regular contact with your son.

58I now turn to your prior criminal history, which has some relevance to the sentencing exercise before the court.

59Pertinently, your offending history which begins in 2009, contains a charge of leaving the scene of an accident on 15 June 2009, which was dealt with by way of fine at the Ringwood Magistrates' Court on 30 October of that year.  Your instructions to your counsel were that that was in the aftermath of your suicide attempt, when you crashed a car into a wall, and believed that you may have been charged for making your way from the car to a hospital.

60I find in the circumstances that to be a somewhat inadequate explanation of this offending, and have some doubts that in those circumstances, you would be so charged.  Nevertheless, that is all the court has before it.

61You have been dealt with in 2011 for driving with an excess of .05 per cent of alcohol in your blood for speeding in 2015 by more than 35 kilometres per hour, and then in 2016, by 30 kilometres per hour.  Those offences occurred in February 2015 and January 2016.

62On 8 December 2016, you were fined on the charge of failing an oral fluid drug test within three hours of driving.  That offence occurred on 16 November 2015, at which time you were issued a notice suspending your driver's license, and which was still current at the time of the offending before this court.

63In 2005, you were fined on a charge of assault in company, and for drinking intoxicating liquor.

64On 26 May 2009, you appeared before the Ringwood Magistrates' Court, on the charge of intentionally causing injury, and intentionally damaging property.  That related to the relationship with your former girlfriend, Elizabeth, whom you slapped, and then dragged down the driveway by her hair.  On another day, you apparently substantially damaged her car using a hammer.

65I now turn to the impact of your offending upon Mr and Mrs Rogerson.  I note that Ms Cantwell, although asked, did not choose to make a victim impact statement in this matter.

66Mrs Rogerson read her victim impact statement out in court, and Mr Rogerson's victim impact statement was read out by the prosecutor.  Both Mr and
Mrs Rogerson attended court.  It is perfectly clear that your actions on this day have devastated the lives of Mr and Mrs Rogerson, who at the time of this offending, were doing nothing but going to the assistance of your distressed victim, with whom you were enraged.  Their actions appear to have further enraged you.

67You have had a calamitous impact upon every aspect of their lives. I note that the victim impact statements were made both close to the date of the the offending, and then closer to the date of this hearing, containing information both as to the immediate aftermath and the ongoing affects for each of them.

68Emotionally, each has been diagnosed with post-traumatic stress disorder, each receives medication for ongoing anxiety, and a fear of their lives in general.  Each undergoes counselling for their difficulties.  I am satisfied that the Rogerson's were sociable, happily married people, who lived contented lives in the same neighbourhood for 35 years, well supported by friends and neighbours, and that their lives have been entirely destroyed in that respect, by your actions on that day.

69As a result of the injuries Mr Rogerson suffered, he was unable to return to the business he ran, a business which employed his son.  That business ran down to the point where he was forced to close it to meet mounting debts.  Partly out of fear of you, and partly in order to meet those debts, the Rogerson's sold the home they had lived in for 35 years.  They have now moved to a distant Gippsland country town Korumburra, where they lead relatively lonely lives in a community they do not know, and which physically and emotionally, they do not have the energy to penetrate.

70Their son is no longer employed by them. 

71Their plan, once Mr Rogerson retired in about three years to buy a caravan and travel around Australia, are now completely destroyed.  Mr Rogerson does not have the ability to drive more than short distances.  He has ongoing back pain.

72Mrs Rogerson is in continual pain; the pair of them continue, I am satisfied from the victim impact statements, to suffer anxiety, which renders them even less capable of coming to terms with an unfamiliar environment and continue to grieve over the loss of the life they had led in Koel Court, Carrum Downs. 

73Mrs Rogerson is deeply distressed by the ongoing emotional trauma suffered by her husband, who continues to berate himself for his inability to protect his wife, to whom he has been married for more than 40 years, from what you were doing.

74If it is any comfort to Mr Rogerson, it is quite clear and I am satisfied, no one, not even Superman, could not have protected his wife from what occurred on that day, and that you have nothing to reproach yourself in that regard.  I regard the reactions of Mrs Rogerson and Mr Rogerson and their continued sufferings, as entirely consistent and to be expected as a result of what you did to them on that day in 2016.

75I regard the impact that your offending had upon them, as an important factor in the sentencing exercise and process pursuant to this court. It is a factor to which I may have regard, pursuant to s.5 of the Sentencing Act.

76Your bail was discontinued after the committal hearing.  On that occasion, as is normal, fresh bail was sought, but was contested and refused, both because of your actions in breaching your bail conditions by contacting Ms Cantwell, and in relation to certain actions towards the Rogerson’s, which apparently involved some filming of them by you.  In any event, you have remained in custody since the committal hearing in January of this year.

77It was submitted that your counsel, and I do accept, that you have used your time in custody well.  Urine analysis results show that you have ceased use of methylamphetamine whilst in gaol.  You have undertaken something like four courses, relating to issues such as managing worry, managing emotions, coping with change, and relationship skills.

78You have also undertaken a number of qualifications, via short-term courses available through Box Hill TAFE in the prison system.  Your counsel informs me that it is your aim once you leave gaol to regain access to your son, continue with your drug abstinence, and you hope to eventually lead a normal life.

79Your counsel submitted that I should deal with you by way of a combination sentence; that is, a combination of gaol and a community corrections order.  I make it perfectly clear, as I did during the plea, that in my view, the objective gravity of your offending makes this a sentence which wholly fails to reflect the seriousness of that offending.

80It was submitted on your behalf that the efforts that you have made in gaol are ones which should cause me to regard you as a person who has good prospects of rehabilitation.  I am prepared to regard your prospects of rehabilitation as guarded at best.

81It is quite clear from Dr Cunningham's report that the basis of this offending was your drug use.  Your counsel informed me that prior to this offending, you and Ms Cantwell had being using ice, and had been up for most of the night.  You were using ice at the rate of about half a gram per day.  You had been using methamphetamine on a regular basis since sometime in 2015. 

82I was also given a report from Rainbow Care Psychology, dated 21 October 2017, noting that you attended there on 14 July 2016, seeking assistance for drug use and for psychological treatment.  The report states,

"He attended a total of two sessions with his second on 17 November 2016.  He missed six other scheduled appointments, and it is unclear why".

83Upon presentation, you told this organisation that you had not used methamphetamine for one and a half weeks, prior to attending on 14 July 2016.  That is notwithstanding that you were on bail, an inherent condition of which was not to offend, and ice use is an offence.  Notwithstanding the charges that you faced and the damage you had done, you continued to use ice.

84You were diagnosed as having a substance abuse disorder, moderate generalised anxiety disorder, and major depressive disorder.  The report stated,

"Daniel's treatment plan includes cognitive behavioural therapy, however, this was not completed due to Daniel's sudden disengagement from therapy after only two sessions, spread months apart".

85Therefore, it is very difficult given this report, for this court to be other than guarded about your future prospects of rehabilitation in the community notwithstanding your progress in gaol.  The court often sees offenders progress well in gaol, because of the structured environment they live in.

86The fact that you took so long following this offending, to seek assistance and persisted with it so poorly whilst in the community, and the fact that you persisted with your methamphetamine use, which underlay your offending in the first place, makes it as I have said it extremely difficult for this court to be anything other than guarded as to your prospects of rehabilitation.

87Your counsel at the start of the plea indicated that you were sorry for what you had done to the Rogersons and expressed contrition.  I have some difficulties accepting genuine remorse in that regard.  You were extremely uncooperative with police, seeking to shift the entire blame for the incident on the supposed aggression of Mr Rogerson.

88You conducted a fully contested committal, at which both Mr and Mrs Rogerson were subjected to cross-examination.  The evidence of your mother during the plea, was that in her visits to you since you have been in custody, you have continued to say to her that you had no idea Mrs Rogerson was there when you drove your car.

89Within the psychological report, all Dr Cunningham had to say about your remorse was,

"Mr Kniese stated he was really sorry about his offences.  He stated that he did not intend for anyone to get hurt".

90By your plea, however, Mr Kniese, you acknowledged you undertook action, with the foresight that it would probably cause harm; that is the test for recklessly causing serious injury and recklessly causing injury.

91OFFENDER:  If I knew that, Your Honour, I wouldn't have plead guilty.

92HER HONOUR:  Thank you very much, Mr Kniese.  You are not assisting yourself.

93In the circumstances, it is my view that you should be given only utilitarian value for the plea which you entered at a late stage, that is on the day that your trial was listed in August of this year.

94It was submitted and I accept that there were aggravating  features to your offending.  They were firstly your use of drugs.  I am satisfied that you were aware of the effect of drugs upon you.  You had been a long-term user.  At the time of your offending against your former girlfriend Elizabeth, you were using pills and amphetamines.  Amphetamine is a similar drug to ice; both contain amphetamine, the latter is quicker acting.

95I am satisfied that you knew the effect upon you was to heighten your anger and aggression, and I accept what the authorities say about that knowledge as comprising an aggravating feature.

96Secondly, at the time of this incident, you were driving when you should not have been.  I regard your offending as being serious examples of the crimes in question.  In terms of the charge of recklessly cause serious injury, your plea indicates an acceptance at least of knowledge of Mrs Rogerson's presence at the time you swung your car around the court, in the way that you did.

97As I have said, it is entirely understandable that in a reactive fashion, she grabbed hold of the pillar, and was immediately dragged as you kept going.  In relation to Mr Rogerson, you had already circled the court, and you hit him at a time when he was bending over his injured wife.

98Thirdly, your failure to stop I regard as serious in the circumstances, notwithstanding that there was another uninjured neighbour to assist.  You knew that you had caused someone, that is Mrs Rogerson, a serious injury, as indicated by your answers to police on their arrival at your home, as to belief that you had killed her.

99Fourthly, I regard your assault of Ms Cantwell as serious, given that you have been previously dealt with for domestic violence in relation to another partner.  It is quite clear in the current climate, that courts are expected to respond seriously to those who engage not only in domestic violence, but do so repeatedly.

100It is my view that the principles of general and specific deterrence, just punishment and denunciation of your conduct are dominant in the sentencing exercise before this Court.

101The issue of community protection also in my view remains live given the clear connection between your chronic Ice addiction and the offending, of which you are still only in the earliest stages of recovery and then only within the more structured prison environment.

102I therefore sentence you as follows.

103On Charge 1 criminal damage, you are sentenced to two months' imprisonment.  On common assault, you are sentenced to 12 months' imprisonment.  On the charge of recklessly causing serious injury, you are sentenced to four years' imprisonment.  On the charge of recklessly causing injury, you are sentenced to two years' imprisonment.  On the charge of failing to stop, you are sentenced to 14 months' imprisonment.  On the charge of driving whilst authorisation suspended, you are sentenced to two months' imprisonment.  On the charge of breaching the intervention order by contact, you are sentenced to nine months' imprisonment.

104I order that the base sentence be the sentence imposed on Charge 3, four years' imprisonment.  I order that ten months of the sentence imposed on Charge 4, six months of the sentence imposed on Charge 5, six months of the sentence imposed on Charge 2, one month of the sentence imposed on the charge whilst driving authorisation suspended, and one month on the charge of breaching the intervention order, be served cumulatively to the sentence imposed on Charge 4, giving a total effective of six years' imprisonment.  I order that you serve a minimum term of four years before become eligible for parole.  Have a seat please.

105Pursuant to s.6AAA ‑ ‑ ‑

106OFFENDER:  She's smiling at me, that smile.  See that smile, she turned around and smiled at me.  She must be real scared and fucked up ‑ ‑ ‑

107SECURITY OFFICER:  You need to keep silent, Mr ‑ ‑ ‑

108OFFENDER:  Yeah.

109HER HONOUR:  Pursuant to s.6AAA, I declare that had you not pleaded guilty, I would have sentenced you to a term of imprisonment of seven years, and ordered that you serve a minimum term of five years.  What is the pre-sentence detention, please?

110MS PARKES:  310 days, Your Honour.

111HER HONOUR:  I declare that 310 days of the sentence have already been served by way of pre-sentence detention.  Are there any other orders that I need to make.

112MS PARKES:  Forensic sample order, Your Honour.

113HER HONOUR:  Pardon?

114MS PARKES:  Forensic sample.

115HER HONOUR:  I am ordering that police undertake a forensic sample from you which will either be by way of a blood sample, or by taking a swab from your mouth, and I need to inform you Mr Kniese, that should you resist them, in doing this, that police may use reasonable force in order to obtain it.  Is there any other further orders that I need to make?

116MS PARKES:  No, Your Honour.

117HER HONOUR:  You may remove the prisoner, please.

118I apologise.  In relation to Charge 5 on the indictment, Mr Kniese's order is cancelled, and he is disqualified from obtaining any further order for a period of four years.

119MR SKEHAN:  As Your Honour pleases.

120MS PARKES:  As Your Honour pleases.

121HER HONOUR:  Thank you.

122MR SKEHAN:  Your Honour, is that backdated to the date of the offence, or is from the time that he went into prison?

123HER HONOUR:  It can be from the time that he went into prison.

124MR SKEHAN:  As Your Honour pleases.

125HER HONOUR:  Thank you.

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