Director of Public Prosecutions v Leslie

[2024] VCC 765

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

AT LATROBE

CR 23-00317

DIRECTOR OF PUBLIC PROSECUTIONS

v

CORRIE JACOB LESLIE

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JUDGE:	HIS HONOUR JUDGE McINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	26 February 2024
DATE OF SENTENCE:	27 May 2024
CASE MAY BE CITED AS:	DPP v Leslie
MEDIUM NEUTRAL CITATION:	[2024] VCC 765

REASONS FOR SENTENCE
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Subject:   CRIMINAL LAW--SENTENCE

Catchwords:                    Aggravated Burglary Person Present – Make threat to Kill – Common Assault – Theft.

Legislation Cited: s9(1A)(a) Crimes Act 1958 ; s74(1) Crimes Act 1958; s6E Sentencing Act 1991 (Vic); s80 Sentencing Act 1991 (Vic)

Cases Cited: Berichon v The Queen [2013] VSCA 319; Bugmy [2013] 249 CLR 571; DPP v L'Eveille [2018] VSCA 60; Brown v The Queen [2020] VSCA 212; Veen v The Queen (No. 2) [1988] 164 CLR 465; Honeysett v The Queen [2018] VSCA 214; Dalgleish [2017] ALJR 91; Wright v The King [2023] VSCA 243

Sentence: Combined sentence of 6 months and 674 days imprisonment and a 2-year community correction order upon charges 1,2,3 and 6. Sentence of 3 months imprisonment upon charges 4 and 5.

TES:   12 months and 674 days imprisonment. 
PSD:   674 days

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms V. Le	Office of Public Prosecutions
For the Accused	Ms L. Andrews	Sullivan Braham Lawyers

HIS HONOUR:

1This plea was heard in the Latrobe County Court, Koori Court, sitting at Morwell on 26 February 2024, to Indictment No.N11558753.  In the Court that day was Uncle Lloyd Hood, Koori Elder, Koori Court officer Terrie Stewart, who is here today, Caitlin Mahally from Corrections and then three people by invitation from the Drug & Alcohol Initiative, Kerry Knight, Greg Semplar and Mr Jack who was the Morwell representative.  In addition Mr Cecil as solicitor for the Director and Ms Andrews who appeared as Counsel for Mr Leslie and today we have Mr Leslie's NDIS support worker, Mr Babu, who is present in Court.

2A guilty plea to the five charges on this indictment was made by Mr Leslie. Tendered as Exhibit A was the prosecution opening, the facts of which were accepted by Ms Andrews as the facts upon which I am to sentence Mr Leslie.  Insofar as the proceedings were concerned, Exhibit A was tendered which was the prosecution opening, and Exhibit B, the prosecution sentencing submissions.  Since the hearing we have obtained both Exhibit C, the community correction report of 20 April 2024, and the MHARS report – which is difficult to get a date, but the date of assessment at least was 1 March 2024 and we have made that Exhibit G.

3In addition, the Court sought pursuant to the Sentencing Act a justice plan analysis, we received the required statement of intellectual disability dated 27 October 2011, Exhibit D, Exhibit E, the Disability Overview Report dated 18 April 2024 and Exhibit F the Justice Plan dated 18 April 2024.

4Insofar as the defence was concerned, the outline of defence submission dated 23 February 2024 was tendered as Exhibit 1, as was a letter from the neuropsychologist, Caitlin Dawes, dated 17 February 2020, that became Exhibit 2.  Exhibit 3 was a report from Healey & Cidoni, Ms Cidoni, psychologist, dated 27 January 2021 and Exhibit 4 was a further report from Healey & Cidoni dated 22 September 2023 and today has been tendered the GEO Healthcare report insofar as Mr Leslie's attendance at appropriate courses while in custody, in particular drug matters, dated 24 May 2024, Exhibit 5 and that has been tendered today.  Both Mr Cecil and Ms Andrews spoke to the submissions as to sentence and the exhibits that I have referred to.  In the prosecution case, the submissions were prepared by Ms Thorpe of counsel.

5As I have already said, today Ms Le appears for the DPP and Ms Andrews again appears on behalf of Mr Leslie. The prosecution submitted in Exhibit B, as to sentence, that a term of imprisonment was warranted, see [13]. The defence in accordance with Exhibit 1, did not resile from the prosecution view as to the seriousness of the crimes, but submitted that the Court should in all the particular circumstances surrounding Mr Leslie, accept that the pre-sentence detention which is now agreed at 674, days should be sufficient imprisonment.

The Court then convened the sentencing conversation with all parties in the Court.  In conversation, we heard that Mr Leslie had a complex history.  He is part of the Lake Tyers mob.  He has a NDIS plan in place and indeed as I have said today, we have Mr Babu who is his NDIS worker. Mr Lelsie has had ongoing issues with heroin, although positively he is on methadone while in custody. We have also had tendered today as Exhibit 5 the GEO Healthcare report as to the undertaking of courses while in gaol.  During this conversation, Uncle Lloyd warned Mr Leslie as to the impact that drugs and alcohol were having on his life.  Uncle Lloyd in discussion noted that Mr Leslie had accepted responsibility 100 per cent for these crimes and acknowledged his crimes.  Mr Leslie indicated to Uncle Lloyd that he wanted to settle down and take opportunities, take up an apprenticeship and have a family.  Uncle Lloyd told Mr Leslie quite forcefully, to use Uncle Lloyd's words 'that he had to shape up and change his lifestyle'.  He was also concerned about the fact that these crimes occurred very shortly after he had been given a CCO, indeed within 20 days of having been released from imprisonment and being granted the CCO.

6In such conversation Mr Leslie indicated to Uncle Lloyd that he had been to use his words 'freaked out by his sister's reaction to his accommodation issues, that he still had heroin issues unfortunately at that time having taken further drugs upon release and that was what led him to these crimes'.  Mr Luke Casey, who was present, had indicated that accommodation under NDIS would be available for Mr Leslie and Ms Stewart told the Court Mr Leslie was a very talented painter and that he was in fact ready to undertake work.

7As was indicated by the Court, given the inherent seriousness of these crimes, especially Charge 1, and the serious violent offender status that relates to Charges 4 and 5, the sentencing of Mr Leslie was going to be very complex and concerning. In coming to the offences themselves, Mr Leslie was born in September 1995.  He was aged 27 at the time of these offences and is now aged 28.  As I said, concerningly, he had only been released from custody in June of 2022, some 20 days before these offences were committed. 

8The first of the offences, and the most serious of course, on the indictment is the aggravated burglary.  This was committed on 22 July 2022 at 10 am at premises in Lakes Entrance being at Lakeview Drive.  The aggravation in this matter was effected by the entrance with a golf club into premises of which he was well aware, indeed located there were persons he well knew, with the motive that he needed money because he suggested that he was sick.  The inherent seriousness of this crime is recognised by the fact that pursuant to s77, the maximum penalty prescribed for aggravated burglary is 25 years imprisonment and/or 3000 penalty units. 

9The second charge related to a common assault which he committed on Andrew Hawkins at the same time. He hit Andrew Hawkins with a golf club, fortunately no serious injuries resulted. The offence is a common law charge for which the maximum penalty is one of five years imprisonment and/or 600 penalty units. The third charge is a charge of theft. The theft was effected under physical pressure and by removal of $700 from Neville Swetnam's wallet who was also residing at the premises. The maximum penalty for theft prescribed by Parliament under s74(1) is (one of) 10 years' imprisonment and/or 1200 penalty units.

10The next two charges concern threats to kill made, firstly to Mr Swetnam outside the door of the premises, and subsequently to Mr Hawkins while brandishing a knife, which he obtained from the house. A threat to kill brings with it a maximum penalty under s20 of the Crimes Act of 10 years' imprisonment and/or 1200 penalty units. The issue unfortunately for Mr Leslie is that he is a designated serious violent offender pursuant to the provisions of s9(1A)(a). As a result, the serious violent offender provisions apply and insofar as those two offences are concerned, the fundamental principle that applies in such sentencing is that public protection must be a major consideration. In addition, cumulative sentences are required and a notification to is to be given as his sentencing as a serious violent offender.

11The sixth charge in the indictment was one of causing damage to the property.  This is the Swetnam property again of course in which the door was kicked open and the damage was to the door.  Subsequent to these offences, Mr Leslie was arrested at the pokies still with money that had been stolen as set out in Charge 3. As of today, the pre-sentence detention served has been agreed at 674 days. 

12Insofar as Mr Leslie's priors are concerned, as I indicated, some 20 days earlier than these offences, he had been before the Latrobe Magistrates' Court, on the 9 June 2022, with charges of threat to kill, burglary, attempted aggravated burglary, two thefts, concealed weapon, possess drugs.  On that day he was given a combined order of 97 days' imprisonment and community correction order for two years which included a justice plan.  Again, a prior was recorded in November 2021 when he was convicted of aggravated burglary, burglary and assault and given six months' gaol.

13Other priors relate to New South Wales' offences, occurred when he was 18.  He was before the New South Wales District Court in October of 2013.  He was still apparently a juvenile when those crimes were committed. For three aggravated burglary and entry charges, as they are called there, three sexual assault charges and a number of other charges, he was given an aggregate sentence of four years imprisonment and 15 months to serve before parole.  Hence, he has a background of two aggravated burglaries, one attempted aggravated burglary and two burglaries.

14Now, on any reckoning, that is not a great record.  However, the sentences he received in Victoria indicate that his offending has generally seen at a lower level.  The New South Wales offending essentially occurred when he was still underage and, given his background and the issues in his life, his priors, although they include as I have indicated, serious matters, are not all that bad, certainly not as bad as I have seen.  Insofar as either of the victims of these crimes, there is no victim impact statement before the Court.

15Mr Leslie, it is important for me to tell you that you are not here to be sentenced again for your prior crimes.  However, they are relevant, as the High Court has said in Veen v The Queen (No. 2) 1988 164 CLR for the following reasons, at [477]:

'Antecedent criminal behaviour', that is your priors, Mr Leslie, 'is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence'.

16On the same page, the Court noted that the priors were relevant to show:

'Whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence the continuing attitude of disobedience to the law, retribution, deterrence and protection of the society may all indicate a more severe penalty is warranted.  It is legitimate to take account of the antecedent criminal behaviour when it illuminates the normal culpability of the offender in the instant case or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of this kind'.

17The Victorian Court of Appeal also had some comments to make in Berichon v The Queen [2013] VSCA 319 as to how one takes into account prior offences, in particular at [44] they said:

'The applicant has a very serious and disturbing criminal prior history'.  I make the point that that is in that case, I have already analysed yours.  Going back to the quotation: 'with respect to the use of firearms.  Although of course he is not to be punished again for these prior offences, the applicant's prior history is relevant as an indicator of his moral culpability, his prospects of rehabilitation, his dangerous propensities and the community's need for protection and the increased importance of specific deterrence as an animating factor in the sentencing process'.

18Of course, as I have already indicated, insofar as the two threat to kill charges, the primary function of sentencing must take into account the protection of the community, although I point out that there was no submission from the prosecution that a disproportionate sentence was required.

19I come then to the prosecution submissions, it stressed the need for specific deterrence given the short period from when Mr Leslie had been sentenced to a CCO and the committing of these like offences.  The prosecution submitted, protection of the community is important as was general deterrence.  The submission as to Charge 1 was that I should take the view that this was a serious aggravated burglary, which involved the use of a golf club in a home at 10 am in the morning.  The prosecution accepted that Verdins was enlivened on the issue of assessing moral culpability and in the written submissions, Exhibit B, that a term of imprisonment was warranted due to the serious nature of the objective offending, his priors, and the fact that this crime was committed some 20 days after being sentenced for similar behaviour.  

20In regard to the defence, both insofar as Exhibit 1 was concerned and the oral matters put to me by Ms Andrews, submission was made that a combined community correction order with days served would suffice in all the circumstances.  The defence called for the Court to obtain a community correction report which was done, Exhibit C, and also we obtained the MAHRS report which has been mentioned this morning which was tendered today as Exhibit G.  In Exhibit C, one notes that albeit that Mr Leslie was assessed as suitable, there was concern as to what was described as a high risk of reoffending.

21A Justice Plan report was called for pursuant to s80 of the Sentencing Act and that was obtained.  In the Statement of Intellectual Disability, Exhibit D, it was noted that Mr Leslie's intellectual disability had been diagnosed before he was 18.  He is a person who functions with sub-average intellectual functioning and deficits in adaptive behaviour.  In Exhibit E, which was the Disability Overview Report dated 18 April 2024 I want to read from both page 2 and page 3 for the purpose of the record:

'Mr Leslie is an Aboriginal man who was born in Camberwell.  Mr Leslie reports the relationship he had with his parents was strained due to the effects of heavy alcohol consumption.  When Mr Leslie was seven years of age, his parents separated, and he was subsequently placed in foster care with minimal contact with his parents.  Whilst in foster care and attending a local primary school in New South Wales, Mr Leslie reported experiencing assaults and physical abuse.  His childhood was characterised by instability due to frequent transitions between foster homes and further abuse purportedly perpetrated by his carers.  Mr Leslie reports to having spent time in a boys' home during his adolescence located in Parkville, living independently thereafter in Sydney.  He reports he often couch-surfed at friends' homes.  Mr Leslie describes an itinerant lifestyle with periods of homelessness and no permanent residence.  Mr Leslie has been in intimate relationships, the longest lasting three months.  He has no children.  They noted in the report to Cidoni of September 2023 that he had 15 siblings including eight brothers and seven sisters.  He advises that he has regular contact with one of his brothers and Mr Leslie's cousin, Mr Ronald Cockerell who resides in Bairnsdale and has been a strong support for Mr Leslie and he continues to have contact with his grandparents'. 

22At page 3 of this exhibit, the following was said:

'In her recent psychological assessment report, Ms Cidoni identified Mr Leslie's ability to assess risk and consequences being impaired due to his cognitive deficits.  Furthermore, his inability to use consequential thinking to assess the situations and make appropriate decisions is significantly impaired.  He presents as impulsive and has difficulty working through problems when they arise, resulting in reactive and hasty behaviour.  Mr Leslie will require intensive support to understand the link between his disability and his behaviour which results in contact with the criminal justice system.  If Mr Leslie can participate in intensive drug and alcohol rehabilitation and understand the triggers and consequences of his behaviour, his ability to manage conflict in prosocial ways could improve'. 

23Ms Cidoni emphasised that his overall wellbeing and day to day functioning are profoundly affected by the complex interaction between mental health conditions and adverse childhood experience.  She also noted that he was currently at Marngoneet Correctional Centre, had plans to reside, as I have already said, with Mr Cockerell and that Mr Cockerell was supporting him and helping him to gain employment as an apprentice when he is released from incarceration.  In addition we have had the MAHRS report tendered today as Exhibit G and I note in particular on p2 of that report, the assessment of the disorders which essentially really involves a summary of Cidoni report. Exhibit F was also tendered, which was the Justice Plan itself.  I note the four recommendations in this plan and the need for cultural supports. 

24Ms Andrews also referred to other matters in mitigation.  Firstly, the plea itself being utilitarian, and entered as soon as possible following the committal as being indicative of remorse, such being confirmed by the comments made by Mr Leslie to Ms Cidoni and in the community correction report. Ms Andrews referred to the principles where one has before one in Court a person with a background of disadvantage, in particular to the High Court decision of Bugmy [2013] 249 CLR 571, [592]-[593].

25Insofar as Bugmy is concerned, I note the comments made by the Court of Appeal in DPP v L'Eveille [2018] VSCA 60 [26] where the Court said:

'In order to assess the rival contentions concerning the use which could legitimately be made of Bugmy principles in this case as a mitigating factor, it is necessary to consider what the High Court said in that case.  In Bugmy the High Court was concerned with an offender who had come from an Aboriginal community surrounded by alcohol abuse and violence when growing up, a lack of formal education and a long record of convictions and incarceration including for offences of violence.  The High Court determined that deprived or traumatic childhoods of that kind may constitute a mitigating factor in sentencing such an offender, although each case must depend on its own facts in order to ensure individualised justice'.

26The Court also said at [26], the following:

“The concept of 'full weight' requires some explanation – to be found in the immediately following passages in Bugmy:

‘However, this is not to suggest, as the appellant’s submissions were apt to do, that an offender’s deprived background has the same mitigatory relevance for all of the purposes of punishment.  Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult.  An offender’s childhood exposure to extreme violence and alcohol abuse may explain the offender’s recourse to violence when frustrated such that the offender’s moral culpability for the inability to control that impulse may be substantially reduced.  However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender’.”

27And then at [29] of the same decision, the Court said:

“In the result, the High Court remitted Bugmy for reconsideration by the Court of Appeal, as a sentencing Court to determine: ‘whether the appellant's background of profound childhood deprivation allowed the weight that would ordinarily be given to personal and general deterrence to be moderated in favour of other purposes of punishment, including rehabilitation, to the extent that the sentencing judge allowed’”.

28They went on to say at [30], in regard to the factors set out in L'Eveille:

“Here the evidence of the respondent's background was lacking in detail and weak in comparison to cases like Bugmy.  The Crown's acceptance on the plea that it was sufficient to engage Bugmy principles is questionable.  But, for the reasons given it cannot be withdrawn.  However, the Crown submission that the respondent's moral culpability nevertheless remained high should be accepted”.

29I take Bugmy into account generally. In regard to this criminality, I do not find the necessary factual connection to these charges, which would reduce, as a result of Bugmy, Mr Leslie's culpability.  As I say, I take into account generally the Bugmy factors set out as I have exposed them.

30We then come to the Verdins principles relied upon by Ms Andrews, [2007] VSCA 102, [32]. Mr Leslie has had intellectual issues since a car accident at five years old. He has also been diagnosed with schizophrenia. In Exhibit 2, Ms Dawes, a clinical neuropsychologist, in her report of 17 February 2020, opines an extremely low range intelligence quotient, functioning with mild intellectual ability and significant cognitive impairments with executive dysfunction. On the last page of her report (unfortunately un-numbered), Ms Dawes states that:

'Mr Leslie has problems with life's stressors, difficulty with managing his emotions and anger management and poor coping skills'. 

31Ms Andrews relied on the two reports from Ms Cidoni, psychologist, being Exhibits 3 and 4.  Coming firstly to Exhibit 3, the report of 27 September 2021, it is noted at p5 confirmation of ongoing drug-use with its impact on an unstable upbringing was noted and the dependency on heroin and Xanax was also noted'.  At p6 she confirmed the low intellectual functioning which she labels as 'manifest' and p7 she expressed concern as to whether Mr Leslie can effect change.  She was of the view that he needs psychological therapy in order to effect such change.

32Exhibit 4, being the report of 22 September 2023 of Ms Cidoni, in particular at p7, [92], again she noted that his cognitive function limits his decision-making abilities and he is subject to impulsive and poorly-considered choices.  It seems that this is exactly what happened on this morning, in particular with the determination to effect this aggravated burglary upon the premises in order to get money.  The reality is that, unlike what he expressed to the victims, that he was wanting money because he was sick, what he really wanted money for was to do exactly what he was doing at the time he was arrested, and that was to get money in order to gamble.

33Ms Cidoni at [99] opined 'that his drug use on that morning intensified his impulsive and reckless behaviour and further compromised his insight'.  On p8 at [109], she noted, as was the case in her report in 2021, the critical concerns that she had as to his intellectual disability and his ability to remain drug-free.  I am told that while he has been in gaol, he has been drug-free.  There is no independent evidence in that regard, although it is positive that he taking methadone and, as was indicated and tendered today from GEO Healthcare, he has been undertaking relevant courses.

34On p9 of Ms Cidoni's report, she details the ongoing risks relevant to Mr Leslie and his effecting rehabilitation.  I accept that all of the principles in regard to Verdins are enlivened here.  I find his moral culpability reduced due to his intellectual disability and mental condition, albeit such being exacerbated by personal drug-use, such that he is not a vehicle for general deterrence and punishment.  However, this finding also raises the predicament that Courts are in, which is detailed in Brown v The Queen [2020] VSCA 212, when the Court of Appeal referred at [71] to statements made in Wright v The Queen [2015] VSCA 333, at [6] and [57], which are as follows:

'A condition which attracts one or more of the principles restated in Verdins may also suggest a heightened risk of reoffending and hence direct attention to the need for protection of the community.  In other words, the same impairment of mental functioning may be productive of countervailing sentencing considerations, one tending to favour a shorter sentence, the other a longer sentence'.

35Paragraph [57] was as follows:

'The very aspects of the accused's mental functioning in that manner was said to explain the offending and to warrant a reduction in moral culpability- also suggested an increased risk of similar offences in the future and hence the need to treat protection of the community as a very significant consideration.  A similar issue the Court said arose in the case of DPP v Patterson where intellectual disability was, on the one hand, said to reduce the offender's culpability and, on the other, to increase the need for community protection.  The Court described the sentencing exercise in such as one of particular difficulty'.

36And then further in Brown, as I have referred to, at [76] there was reference to the case which I have also referred to of Veen by the High Court and I will repeat the reference [1988] 164 CLR 465 at [473], where as to taking account of the protection of the community the High Court said:

'the practical observance of a distinction between extending a sentence merely to protect society and properly looking to society's protection in determining the sentence calls for a judgment of experience and discernment. 

37The High Court went on to say that:

'there was no opposition between the principle of proportionality and the imposition of a sentence which took into account the propensity of the offender, whether on account of mental illness or otherwise to commit violent crime and consequent need to protect the community'.

38As I have said, in Mr Leslie's case, the balance here is very delicate.  As to the impact of his drug and alcohol intake, with knowledge of his mental condition, I consider, due to his intellectual disability, that I cannot make a finding beyond reasonable doubt that his disregard of the impact upon such conditions, his intellectual disability and the effects thereon from taking drugs, is such that I should disregard the submission made as to Verdins.

39The next matter that Ms Andrews took me to was the conversation which I have already referred to with Uncle Lloyd and to which is effected in each Koori Court in the County Court. She referred to the factors of mitigation that the Court takes into account which have been detailed in Honeysett v The Queen [2018] VSCA 214, at [54], and I take into account all of the three factors detailed therein.

40Ms Andrews then came to the prospects of rehabilitation.  She asked me to consider the steps taken while he has been in custody to indicate that he has capacity.  Unfortunately, I must conclude, given the early breach of the community correction order which he got in June of 2022, that one has to be particularly guarded as to Mr Lelsie’s rehabilitation.  As I said, Ms Cidoni is also very concerned as to his capacity to rehabilitate, albeit the positive matters that I have referred to as to his alleged withdrawal, albeit with no urine samples, and the undertaking of the courses that I have referred to in prison, the NDIS assistance he has, the ability to get accommodation and hopefully partially effect rehabilitation by undertaking the apprenticeship we heard about.

41It is notable that in the community correction report, there was also concern as to his ability to effect rehabilitation.  I, of course, wish Mr Leslie well in this regard.  When you are released from prison eventually, Mr Leslie, and I am sorry this has been so complicated and technical, but it is necessary in your interests that I set out full details, okay?  But, as Uncle Lloyd said to you, if you don't shape-up, you are just going to continue to be in goal. 

42OFFENDER:  Yes.

43HIS HONOUR:  All right?  It is very, very important for you to listen to Uncle Lloyd's words, very important.

44OFFENDER:  Definitely.

45HIS HONOUR:  You will only be able to get that apprenticeship, be able to go ahead and change your life and have a family as you want to, if you do not commit crime and the only way you are going to do that is really for you no drugs at all.  It does not help you.  If you continue, despite your issues, to commit crime, then the Courts are going to have no alternative but to leave you in gaol in order to protect the community and no-one wants to do that.  Okay?

46OFFENDER:  Yeah.

47HIS HONOUR:  As I have, I think, rehearsed, given the relevant factors to be balanced in this sentence, it certainly requires fine discernment.  As required by the High Court in Dalgleish [2017] ALJR 91, pp1063 and 1072, at [49], Mr Leslie is entitled to an individualised just sentence based upon the facts of these offences.  I can assure you, Mr Leslie, that is what I have endeavoured to do.  I must indicate to you, Ms Andrews, that I have concluded that I do not accept that Mr Leslie should not serve any further gaol given the seriousness of these offences.

48Yes, Mr Leslie, if you would stand up, please.  I will pronounce again – it is unfortunate that even your sentence is complicated, and I will give Ms Andrews the opportunity to talk to you.  Officers, if you would be good enough to allow Ms Andrews – or do you want to go downstairs and ‑ ‑ ‑

49HIS HONOUR:  Given Your Honour has other matters, I am happy to go downstairs and see Mr Leslie.

50HIS HONOUR: Right, thank you, Ms Andrews. As to Charges 1, 2, 3 and 6, you will be sentenced to a combined sentence, being pursuant to s91 an aggregate sentence of imprisonment of six months plus 674 days and a community correction order for two years to commence upon your release from gaol. The community correction conditions are detailed in Exhibit C. They are pursuant to s48D(3)(a), treatment and rehabilitation for drug condition, sub-paragraph 3(b), the same form of treatment for alcohol, sub-paragraph (e), mental health treatment and assessment. Under 48E, you will be subject to supervision and pursuant to s80 of the Sentencing Act, a Justice Plan will be attached to your community correction order, with the recommendations as detailed in Exhibit F.

51As to Charge 4, you will be sentenced to three months' gaol and as to Charge 5, you will be sentenced to three months' gaol. I order that the sentences in regard to Charges 4 and 5, being the serious violent offences, are to be fully cumulative as required by s6E of the Sentencing Act, upon the imprisonment portion of the combined sentence being six months and 674 days' imprisonment, making a total effective sentence of 12 months and 674 days.  Hence, the community correction order, Mr Leslie, will not commence until 12 months from this date, or earlier if you are released administratively.  Insofar as the ability to make such an order on a cumulated sentence, I refer to Wright v The King [2023] VSCA 243, [62] to [65]. Insofar as the pre-sentence detention of 674 days, I declare that such pre-sentence detention has been served as part of this sentence and that such declaration be noted in the records of this Court.

52Insofar as s6AAA is concerned, I am required by the Parliament to indicate to you what the sentence would have been had you not pleaded guilty.  Your sentence, unfortunately, Mr Leslie, is so complicated that it is almost impossible for me to comply with Parliament's requirement when it relates to one factor only, that is your plea of guilty. All I can really say is certainly you would not have got a community correction order, nor the combined order.  I am required to sign a forfeiture order which I have already signed, Madam Prosecutor.

53MS LE:  That's correct, Your Honour.

54HIS HONOUR: And I am also required to indicate that you have been sentenced as a serious offender in regard to Charges 4 and 5 and pursuant to s6F of the Sentencing Act, the details of you being so sentenced as a serious violent offender are to be recorded in the records of this Court.

55The end effect for you, Mr Leslie, is that you will be required for these crimes to serve, in addition to the amount of gaol you have served so far, another 12 months.  Then, you will be subject to a community correction order which will start on the date of your release and that will go for two years with the conditions that I have indicated.  Anyone got any queries about those matters?

56MS LE:  No, Your Honour.

57MS ANDREWS:  No, Your Honour.

58HIS HONOUR:  All right, Mr Leslie, good luck.  Everyone wants you to do okay.

59OFFENDER:  Yes.

60HIS HONOUR:  Remember what Uncle said to you, all right? 

61OFFENDER:  Thank you.

62HIS HONOUR:  Good luck.  And Ms Andrews you are going to go downstairs and have a chat?

63MS ANDREWS:  Your Honour, if Mr Leslie could remain to sign the CCO that could be given to Your Honour's associate.

64HIS HONOUR:  Oh yes, sorry, yes.  I'm sorry Officers, we have to get the CCO signed, and I thank everyone who has assisted in this matter.

65MS ANDREWS:  As Your Honour pleases.

66MS LE:  As the Court pleases.

67HIS HONOUR:  No doubt you will talk to Uncle.

68MS STEWART:  I will, Your Honour, I will let him know the outcome.

69HIS HONOUR:  Thank you.  Ms Andrews, I did not ask you for formal consent because you had already expressed it in the report.

70MS ANDREWS:  Yes, Your Honour, yes obviously consented, yes.

71HIS HONOUR:  Happy with that?

72MS ANDREWS:  Yes.

73HIS HONOUR:  Well let us hope we get there, Ms Stewart.

74MS STEWART:  Absolutely.

75HIS HONOUR:  He has got a bit going for him.  Yes.

76‑ ‑ ‑