Director of Public Prosecutions v Lane
[2021] VCC 1276
•3 September 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-00404
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MICHAEL LANE |
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JUDGE: | HIS HONOUR JUDGE D SEXTON | |
WHERE HELD: | MELBOURNE | |
DATES OF PLEA HEARING: | 30 August 2021 | |
DATE OF SENTENCE: | 3 September 2021 | |
CASE MAY BE CITED AS: | DPP v Lane | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1276 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Aggravated Burglary; Common Law Assault; Theft
Legislation Cited: Sentencing Act 1991
Cases Cited:Hogarth v R (2012) 37 VR 658; Bugmy v R (2013) 249 CLR 571; R v Verdins & Ors (2007) 16 VR 269; Worboyes v R [2021] VSCA 169; Director of Public Prosecutions (DPP) v Heyfron [2019] VSCA 130
Sentence: Total effective sentence of three years and six months’ imprisonment with a non-parole period of two years’ and four months’ imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr M. Roper | Solicitor for the Office of Public Prosecutions |
| For the Accused | Ms S. Wallace | Emma Turnbull Lawyers |
HIS HONOUR:
Introduction
1Michael Charles Lane, you have pleaded guilty to one charge of aggravated burglary, which carries a maximum penalty of 25 years’ imprisonment, one charge of common law assault, which carries a maximum penalty of 5 years’ imprisonment, and one charge of theft, which carries a maximum penalty of 10 years’ imprisonment.
2You have also pleaded guilty to one related summary offence, commit an indictable offence whilst on bail (related summary offence Charge 7), which carries a maximum penalty of 3 months’ imprisonment or 30 penalty units.
3You have also admitted your criminal record.
Circumstances of the Offending
4The circumstances of your offending were set out in the Summary of Prosecution Opening on Plea dated 9 June 2021, which was read out at your plea hearing on 30 August 2021 and marked Exhibit 1. That document contains the factual basis for the offending for which you will now be sentenced.
5Your offending can be briefly summarised.
6
At the time of your offending, you were 39 years old and residing in Sebastopol. Your victim in this matter, Sarah Pellew, is the 18-year-old girlfriend of Jacob Gough, an associate of yours. You had met each other previously through
Mr Gough and she knew you as ‘Mick’. You had previously been to their home in Golden Point.
7On Saturday, 28 November 2020, at 2.00pm, you telephoned Mr Gough asking him for a lift to the local Supermarket. Mr Gough drove you to the Coles Supermarket in Sebastopol. Briefly after this, he witnessed you fleeing the supermarket and subsequently picked you up. You claimed you were assaulted by Coles staff and wanted to collect a tomahawk from home to later return to the supermarket and ‘cut the staff up’.
8Following this, you were driven home by Mr Gough. He reported you appearing quite agitated and later observing you smashing plates over your own head.
9
Later that evening at 7.00pm, you attended the address in Golden Point which
Mr Gough and Ms Pellew shared at the time. Ms Pellew was alone in the house, in the upstairs bedroom. She heard you yelling and banging on the front door, and remained in her bedroom.
10
Ms Pellew made various unsuccessful attempts to call Mr Gough. She was able to contact Mr Gough’s brother and she spoke with his girlfriend. During this time,
Ms Pellew heard appliances being moved in the garage and a glass smash downstairs. Upon gaining entry at this point, you then made your way to the upstairs section of the house, yelling angrily. Your conduct in this regard forms the basis of Charge 1 on the indictment, aggravated burglary.
11You entered the upstairs bedroom and grabbed Ms Pellew around the neck, demanding she pass over her phone to you. When she did not hand over her phone, you took it. This phone was to the value of around $500, and was subsequently never found. Your conduct in this regard forms the basis of Charge 3 on the indictment, theft of an Apple iPhone 7.
12Ms Pellew then ran through the bathroom onto the landing. You grabbed Ms Pellew’s legs causing her to fall onto the floor. You then kicked her.
13She broke free of your grasp, ran down the stairs and fled out of the front door. You chased Ms Pellew out the door, grabbing her once again outside at the letterbox. A passerby stopped by to check on her welfare, at which point you walked away. Your conduct in grabbing and kicking Ms Pellew in the circumstances I have described forms the basis of Charge 2 on the indictment, common law assault of Ms Pellew.
14Soon after, you were arrested by police in nearby Grant Street and transported to Ballarat Hospital to obtain medical attention for your bloodied and bandaged hand injury which had occurred in a prior unrelated window smashing incident.
15You were ultimately not interviewed in relation to your offending.
16At the time of your offending, you were on bail to appear at the Ballarat Magistrates’ Court on 3 December 2020, having been admitted to bail on prior charges of theft on 27 July 2020. Your conduct in this regard forms the basis of Summary Charge 7, commit an indictable offence whilst on bail.
17Whilst no Victim Impact Statement has been filed in this matter from Ms Pellew, her sentiments expressed to police in her statement referred to her being hysterical and terrified, clearly indicating her level of shock and fear during your offending. Ms Pellew was simply going about her daily business and did not provoke your attack in any form whatsoever. She had every right to feel safe within the confines of her own home.
Nature and Gravity of the Offending
18Turning firstly to the aggravated burglary, the gravity of this type of offence is reflected in the maximum term of imprisonment available, 25 years. The offence of aggravated burglary is a serious violation of the sanctity of the home, and crimes such as these strike directly at the heart of people’s domestic security and their capacity to feel safe in their homes. Through your plea of guilty, you have acknowledged that, when you entered the home where your 18-year-old female victim was then living, you did so as a trespasser and with an intent to assault. Self-evidently, this represents most serious criminal conduct.
19Your victim, Ms Pellew, was just 18 years of age at the time, and was home alone. In these circumstances, she was vulnerable. You entered your victim’s property in the evening, further accentuating her vulnerability in a place she was entitled to feel safe. Whilst the precise details with regard to your method of entry to the property remain somewhat vague, Ms Pellew heard you banging on windows and yelling. She heard the sound of glass smashing, and appliances in the garage being moved, and she then heard you yelling angrily as you came up the interior stairs. Whatever the precise details with regard to your method of entry, you were clearly behaving in an agitated and angry manner, which must have been unsettling to your young victim, to say the least. However, you were alone and unarmed. There is no evidence before me that you committed this offence as a result of any pre-existing grievance.
20Whilst you had spent the earlier part of the day with Ms Pellew’s then partner, who also lived at this property, Mr Gough had earlier noticed you behaving in an agitated manner, smashing plates over your own head. You had apparently displayed erratic behaviour throughout the day, with multiple police calls in the community as noted by senior clinical neuropsychologist Dr Loretta Evans in her report,[1] tendered at your plea hearing and marked Exhibit C. In these circumstances, given your erratic and agitated demeanour in the lead up to your offending, I am unable to conclude that your actions in gaining entry to the property with an intention to assault could be described as the product of orderly thinking, planning or premeditation.
[1] Neuropsychological Report of Dr Loretta Evans dated 31 May 2021 p.5.
21In these circumstances, whilst your conduct with regard to the aggravated burglary must be seen as a serious example of this crime, given your intention at the point of entry, I agree with your counsel’s submission that the gravity of this particular crime is not as serious as what could be described as a confrontational aggravated burglary, the defining characteristic of which usually involves entry to confront someone violently in the context of a pre‑existing grievance or dispute.[2]
[2]Hogarth v R (2012) 37 VR 658 at [54].
22Your conduct upon entering the bedroom and seeing your victim, in my view, represents a serious example of the crime of common law assault. Your 18‑year-old female victim was home alone and vulnerable. Having essentially just broken into her home and making your way upstairs to the bedroom where she was then located, you grabbed her around the neck, causing marks on and around her neck. After demanding and then obtaining your victim’s mobile phone, your victim ran through the bathroom onto the landing, where you grabbed her legs and she fell to the floor. You then kicked her before she broke free and ran down the stairs and out the door. You chased her and grabbed her once again at the letterbox, before a passerby stopped to check on her welfare, and you then walked away. This represents, in my view, deplorable conduct on your part in relation to Ms Pellew. Your conduct, in my view, represents an episode of relatively sustained violence in the circumstances as I have just described them.
23Finally, your conduct in stealing Ms Pellew’s mobile phone, in the circumstances as I have described them, represents a serious example of the crime of theft.
24In reaching a sentence which is just in all the circumstances, I must have regard to all relevant matters, including your personal circumstances, and to these I now turn.
Personal Circumstances
25You are currently 39 years of age. You are of Aboriginal heritage on your mother Deborah’s side, identifying as a Bunurong man. You report having only limited contact with your mother, no contact with your father Mark, or your younger brother, Mark, 38. You also have numerous half-siblings on your mother’s side born of subsequent relationships following your parents’ separation when you were about 11 years old.
26Notwithstanding this family dislocation, you report currently having a good relationship with your sister, Amy Goss, who appeared via video at the Koori Court sentencing conversation and articulated her support and love for you. I note Ms Goss is also present for today's sentencing hearing.
27I accept in your case that any consideration of your background must occur in the context of your formative years in which you emanated from a dysfunctional family unit, characterised by domestic abuse by your alcoholic father, leading you to feel scared of your father and unprotected by your mother. You were exposed to constant movement in and around the Ballarat and Geelong areas, and sadly, addiction and violence have been present in your life from a very young age. Overall, in your adolescent years you were exposed to Complex Developmental Trauma.
28Clearly, throughout your life you have been exposed to multiple traumatic events. At the age of 11, when your parents separated, you and your younger brother were forced to live with your father, as your mother could not afford a bigger house. You reported often taking the blame for your younger brother, to protect him, leading to you being the victim of further violence. Carla Lechner, in her Psychological Report, Exhibit B at your plea hearing, stated that the violence you suffered from a young age led to symptoms of Complex Post-traumatic Stress Disorder, including chronic low self-esteem, emotional and behavioural dysregulation, interpersonal mistrust and a tendency to engage in self-destructive behaviours.[3] These symptoms were exacerbated by multiple traumatic events in your adult life, including allegedly being held hostage and tortured for two weeks and on another occasion being assaulted by a close friend and spending three days in a garage before regaining consciousness. Flashbacks, nightmares, avoidance and hyper-vigilance are causative effects of your traumatic history of violence which you continue to suffer with to this day.
[3] Psychological Report of Carla Lechner dated 15 April 2021 p.3.
29You have reported commencing smoking cannabis at the age of 12. This was a daily occurrence and has been since that age. Alcohol use was reported to commence around the age of 14, before progressing to using LSD and Ecstasy at the age of 15, Speed at 17 and then Ice at 24. You have used Ketamine, and it seems you have abused prescription Valium. You also reported using GHB in the lead up to your offending, almost putting you in a coma. Understandably, following the violence and substance use issues I have just outlined, it seems you have suffered post-traumatic symptoms which have undermined your vocational, social and emotional development.
30Amidst all of this trauma, it is perhaps unsurprising that you have a limited education. You attended various schools within the Ballarat area, completing only through to the end of Year 8 before leaving school and living on the street. You reported living with your sister temporarily, before you found yourself back on the street. Whilst homeless, you obtained employment as a Kitchenhand, and later as a Chef, at the Ocean Grove Hotel. You reported working there for three years. Ultimately, this became untenable, and you ceased your employment there.
31As a result of your traumatic history, clinical psychologist Carla Lechner reported you living in a mode of survival and interpreting the world around you in a negative and restricted way, with little belief you can effect positive change in your life.[4] Whilst able to identify various triggers for your negative feelings, you have few coping mechanisms, often turning to substances to block out internal distress, a habit not surprisingly derived from your adolescent years. Ms Lechner also stated that you have low cognitive functioning, however, was uncertain whether this arose from a lack of education in your formative years, your history of drug abuse and violence, or a combination of both.[5]
[4] Psychological Report of Carla Lechner p.4.
[5] Psychological Report of Carla Lechner p.4.
32You have reported two past intimate relationships that have resulted in the birth of your sons, aged 18 and eight. Both of these relationships have ceased due to co-dependency issues, amongst other reasons. You report having no contact with your two children, Tywren and Jackson.
33You have quite a lengthy criminal history. This involves prior convictions for matters of violence including persistent contravention of family violence orders in 2014. You also have previous convictions for dishonesty type offending including burglary, theft from motor vehicles, going equipped to steal and dispose of and/or handle stolen goods, driving related offences of driving an unregistered vehicle and fail to provide breath/fluid test, and also drug related offences involving possession of methylamphetamine and cannabis. Your most recent conviction resulted in you serving a term of imprisonment of 205 days, with time spent in custody in 2019 reckoned as time served.
34According to your counsel, at the time of the offending you were living an itinerant life, unemployed, and abusing prescription medication mixed with alcohol.[6] You have reported no memory of the offending at all, save for taking some prescription Benzodiazepines and alcohol sometime in the early part of the day. You informed clinical psychologist, Carla Lechner,[7] that you have no memory of the offences and cannot think of any reason why you would have attended the victim’s home. After remembering having a drink that morning and some Valium, your next memory was waking up in hospital.
[6]Summary of Defence Submissions on Plea dated 8 June 2021, Exhibit A, at [14].
[7]Psychological Report of Carla Lechner p.6.
35You had been arrested by police shortly after leaving the victim’s property, where you were arrested and eventually transported to the Ballarat Base Hospital. According to Dr Loretta Evans,[8] you had been conveyed to the hospital by ambulance due to a reduced conscious state whilst in the police cells. You were found to have a compromised Glasgow coma score and an inability to maintain your airway on your own. You presented with increased agitation and ultimately required intubation.
[8]Neuropsychological Report of Dr Loretta Evans p.5.
36Subsequent investigations revealed the presence of Benzodiazepines, cannabis, and a blood alcohol level of .33. You were subsequently admitted to the Intensive Care Unit on 29 November 2020 for ongoing management and diagnosed with a reduced level of consciousness due to a “combination of Benzodiazepines, cannabis and alcohol”.[9] In these circumstances, it is perhaps unsurprising that you have no recall of the offending.
[9] Neuropsychological Report of Dr Loretta Evans p.5.
Sentencing Factors
37The Sentencing Act 1991 requires me to have regard to various factors when formulating an appropriate sentence in your case. I have already referred to the maximum penalties, the nature and gravity of your offending, and your previous character.
38I turn now to a consideration of your culpability and degree of responsibility for the offending. Your counsel did not submit that your moral culpability was lessened by virtue of the well-known mental impairment principles articulated in the decision of Verdins.[10] However, your moral culpability for the offending is reduced, in my view, in accordance with the principles articulated in the High Court decision of Bugmy.[11]
[10] R v Verdins & Ors (2007) 16 VR 269.
[11]Bugmy v R (2013) 249 CLR 571.
39Pursuant to the Bugmy principles, an offender’s background of deprivation is relevant because his moral culpability for the particular offence is likely to be less than the culpability of an offender whose formative years have not been marred in that way. A history of deprivation may also impact on the relevance of any prior criminal history. As stated in Bugmy:
“Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving ‘full weight’ to an offender's deprived background in every sentencing decision.” [44]
40I accept in your case that you have had a history of deprivation and disadvantage. Your father was emotionally and physically abusive towards you before your parents separated from around the age of 11. From the age of 13, you encountered difficulties with regards to homelessness. You have limited education. From a young age, you have been exposed to drug use.
41Clinical Psychologist, Carla Lechner, who assessed you for the purposes of your plea hearing, reported that you emanate from a dysfunctional family in which you were exposed to complex developmental trauma with attendant symptoms of complex Post-Traumatic Stress Disorder (PTSD) that undermined your subsequent vocational, social and emotional development.[12]
[12]Psychological Report of Carla Lechner p.1.
42According to Ms Lechner, your childhood and adolescent years were characterised by complex developmental trauma, giving rise to symptoms of complex PTSD, which include chronically low self-esteem, emotional and behavioural dysregulation, interpersonal mistrust, a high level of hypervigilance to situations of potential threat with attendant anxiety, and a tendency to engage in self-destructive behaviours.[13]
[13]Psychological Report of Carla Lechner p.3.
43I accept, in all the circumstances, that your rather troubling criminal history and, indeed, the offending for which you now fall to be sentenced, occurred in this context. In accordance with the Bugmy principles, there must be a reduction in your moral culpability for the offending and, to some degree, a reduction in the need for any sentence to reflect the sentencing purpose of general deterrence.
44Whilst your counsel did not submit that the Verdins’ mental impairment principles had applicability in the sentencing synthesis, I have nevertheless taken into consideration your mental health and personality issues, as articulated by clinical psychologist, Carla Lechner, and senior clinical neuropsychologist, Dr Loretta Evans,[14] by way of context for your offending and the difficulties associated with your progress generally, and your time in custody specifically.
[14]Psychological Report of Carla Lechner; Neuropsychological Report of Dr Loretta Evans.
45In addition to the complex PTSD and substance disorders, Ms Lechner also referred to a “major depressive disorder”.[15] According to Ms Lechner, you have used drugs and alcohol to manage your psychological distress, this only serving to compound your depression, anxiety and poor problem-solving and decision-making skills.[16]
[15]Psychological Report of Carla Lechner p.6.
[16]Psychological Report of Carla Lechner p.7.
46According to Dr Evans, acute substance intoxication and a potentially heightened psychological state are considered to have been the key contributors at the time of the offending.[17] Whilst you have some cognitive difficulties, they were not considered by Dr Evans to be a causal or contributing factor. According to Dr Evans, your presentation satisfies a diagnosis of borderline personality disorder.[18]
[17]Neuropsychological Report of Dr Loretta Evans at [50].
[18]Neuropsychological Report of Dr Loretta Evans at [49].
47Both Ms Lechner and Dr Evans express opinions and make recommendations with regard to management and treatment in the custodial setting, and I have taken those opinions into consideration when formulating an appropriate sentence in your case.
48As accepted by the prosecution in this case, this matter resolved to a plea of guilty early in the proceedings, at the Committal Mention stage. Your early plea of guilty removed the need for your victim and any other witnesses to give evidence in any contested proceedings. Through your plea of guilty, you have accepted responsibility for your offending and you have facilitated the course of justice. Your plea of guilty has saved the community the cost of a trial. Your plea of guilty, therefore, has a significant utilitarian benefit warranting a sentencing discount.
49Significantly, your plea of guilty occurred within the context of the COVID-19 pandemic. Given the current unprecedented challenges to the administration of justice in this State due to the scourge of COVID-19, and the consequential significant delays to criminal trials in this State, your plea of guilty has a significantly enhanced utilitarian benefit, having regard to the significant backlog of cases currently before the courts.
50As the Court of Appeal has recently emphasised, the courts must encourage those who are guilty to so plead, and such encouragement must come from an “actual and palpable” amelioration of sentence.[19]
[19]Worboyes v R [2021] VSCA 169 at [35].
51Furthermore, I am satisfied that a sentencing discount is warranted due to your genuine remorse. I accept, in the circumstances of this case, that your plea of guilty is reflective of your remorse. According to Ms Lechner, notwithstanding your lack of memory of your offending, you accepted the victim’s account of what had occurred and expressed regret for your actions, and empathy for your victim.[20] Indeed, according to Ms Lechner, you were tearful when expressing your regret and shame.[21]
[20]Psychological Report of Carla Lechner p.2.
[21]Psychological Report of Carla Lechner p.7.
52Likewise, according to senior clinical neuropsychologist, Dr Evans, you articulated remorse, regret and shame, and:
“In this regard, the capacity to reflect about the impact of his behaviour was clearly evident given Mr Lane repeatedly expressed his remorse and responded in a manner that indicated the ability to view his offending from various perspectives.”[22]
[22]Neuropsychological Report of Dr Loretta Evans at [24].
53Furthermore, on 30 August 2021, you participated in a sentencing conversation in the presence of two Aboriginal Elders, as part of the Koori Court plea hearing procedure. In relation to your participation in the sentencing conversation, I formed the view that you were conscientiously participating and taking responsibility for your actions in a conversation which was substantial, direct, and, at times, no doubt confronting for you.
54In my view, you were appropriately remorseful for your conduct, saying that you were sorry for scaring your victim. You were, at times, emotional during the sentencing conversation. In my view, you articulated an understanding of the risk factors underpinning your offending, and you articulated a desire to rehabilitate upon your release from prison, with the assistance of your sister, Amy.
55Part of the sentencing conversation to which I have referred involves a shaming aspect which, in my view, you genuinely embraced. As acknowledged in recent authority,[23] meaningful engagement in the Koori Court sentencing conversation may operate as a mitigating circumstance. You faced the shaming that is an integral part of those proceedings, and you were prepared to be accountable for your offending. Participation in the process of a Koori Court is more burdensome than appearing at a traditional plea hearing, and participation therefore may, of itself, be rehabilitative.
[23]Director of Public Prosecutions (DPP) v Heyfron [2019] VSCA 130 at [66]-[69].
56In my view, your genuine remorse augers well for your prospects of rehabilitation. It also decreases the need for any sentence imposed to reflect the sentencing purposes of specific deterrence and community protection.
57I accept that since your remand in custody on 28 November 2020, you have made the best of your time. I was advised, and accept, that you have been abstinent from illicit substances, having provided numerous clean urine screens. You have been involved in a Koori art program, which you have found to be enjoyable, as was evident from your description of your activities in this regard during the sentencing conversation.
58However, for the past 16 weeks, you have been in protection due to perceived threats to your safety, which has no doubt caused you a degree of anxiety. Having previously worked in the kitchen when you were in mainstream, a job which, given your employment history, you enjoyed and showed a degree of aptitude for, you have been unable to work in this area since being placed in protection. You are currently on a waitlist for this job, but your options are limited given your protection status.
59Furthermore, I accept that your time in custody has been made more arduous due to the COVID-19 pandemic and its impacts on the custodial setting. I was informed that your time in custody has traversed three lockdown periods in the broader community, and the impacts on the prison setting have been keenly felt. To varying degrees, given the unpredictable nature of the pandemic, there have been significant restrictions in the custodial setting with regard to prison visits, access to employment and access to programs, services and therapies. All prisoners and their families have had to live with the ongoing stress and anxiety associated with the risks of COVID-19 should it enter the custodial environment, with its compromised demographic, particularly with regard to Aboriginal prisoners such as yourself. In addition to this general anxiety, I accept that the restrictions resulting from COVID-19 have impacted you, by way of example restricting your access to visits from one of your principal supports, your sister, Amy.
60I am satisfied, in all the circumstances, that the impacts of COVID-19 on your time in custody warrants a further mitigatory allowance on sentencing.
61Furthermore, with regard to applicable sentencing factors, in formulating an appropriate sentence in your case I have had regard to current sentencing practices for the offences for which you now fall to be sentenced, particularly with regard to the most serious offence, aggravated burglary.
62I have already referred to your prospects of rehabilitation in the context of your plea of guilty, remorse, and participation in the Koori Court sentencing conversation. Given the fairly extensive nature of your criminal history, and the offending for which you now fall to be sentenced, I agree with your counsel that you are at risk of institutionalisation.
63Indeed, according to clinical psychologist, Carla Lechner, in the absence of intensive and long-term support:
“I would anticipate a relapse to substance abuse, depression and dysregulated behaviour including offending. Mr Lane will be at risk of becoming institutionalized if the cycle of recidivism is not disrupted.”[24]
[24]Psychological Report of Carla Lechner p.7.
64You clearly have many challenges ahead of you. However, to your credit, you have shown aptitude in your previous employment at the Ocean Grove Hotel, where you remained for some three years, working your way into a Chef’s position.
65You are clearly very attached to your sister, Amy, who was present and participated in the sentencing conversation. You have articulated a desire to live with Amy upon your release and start afresh whilst you embark upon your path to rehabilitation.
66In all the circumstances, I find your prospects of rehabilitation to be reasonable, provided you obtain appropriate specialist interventions in the community to assist with your reintegration and, ultimately, your rehabilitation.
67In formulating an appropriate sentence in your case, I must have regard to various sentencing principles. Your serious offending must be denounced. In addition to seeking to deter you from further criminality, I must send a message to others in the community who would offend in the manner in which you have, that such serious criminality will attract substantial punishment. I must also protect the community from you. I must also seek to facilitate your rehabilitation as appropriate.
68Your counsel conceded that a term of imprisonment with a period of parole was the only available sentence in your case. Having considered all of the relevant sentencing factors and principles, and the need to impose just punishment, I have concluded that a sentence of imprisonment of some duration is warranted.
69Subject to the overriding principle of totality, in my view, there is a need to reflect the distinct criminality involved in the common law assault and theft offences through a modest degree of cumulation.
70Mr Lane, in relation to the charges on the indictment and the related summary offence, you are sentenced as follows.
Sentence to be Imposed
71On Charge 1, aggravated burglary, you are convicted and sentenced to three years’ imprisonment. This is the base sentence.
72On Charge 2, common law assault, you are convicted and sentenced to 12 months’ imprisonment.
73On Charge 3, theft, you are convicted and sentenced to nine months’ imprisonment.
74In relation to the related summary offence of committing an offence whilst on bail, you are convicted and sentenced to 14 days’ imprisonment.
75I order that four months on Charge 2 and two months on Charge 3 be served cumulatively upon each other and upon the base sentence imposed on Charge 3, making a total effective sentence of three years and six months’ imprisonment.
76I turn now to the issue of a parole period.
77The purpose of parole is to provide for mitigation of punishment in favour of rehabilitation through conditional release where appropriate. A non-parole period is the minimum time that I determine justice requires you must serve, having regard to all of the circumstances. In this case, I order that you serve a period of two years and four months before becoming eligible for parole.
78Pursuant to s18(4) of the Sentencing Act 1991, I declare a period of 279 days has been served by way of pre-sentence detention, and I order that this amount be administratively deducted from your sentence.
79Pursuant to s6AAA of the Sentencing Act 1991, I declare that had you pleaded not guilty but been found guilty at trial, I would have imposed a total effective sentence of five years’ imprisonment with a non-parole period of three years and nine months.
80Mr Roper, firstly any issues or ambiguities with regards to the sentence?
81MR ROPER: Not from my point of view, Your Honour.
82HIS HONOUR: Thanks, Mr Roper. Ms Wallace, any issues or ambiguities from your end?
83MS WALLACE: No, Your Honour.
84HIS HONOUR: All right, thanks very much.
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