Director of Public Prosecutions v Mading
[2018] VCC 1056
•11 July 2018
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication | |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-18-00744
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PETER MADING |
JUDGE: | HIS HONOUR JUDGE GAMBLE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 June 2018 | |
DATE OF SENTENCE: | 11 July 2018 | |
CASE MAY BE CITED AS: | DPP v Mading | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1056 | |
REASONS FOR SENTENCE
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Catchwords: CRIMINAL LAW - Sentence – Guilty Plea – burglary, theft, false imprisonment, reckless conduct endangering person, drive whilst disqualified, fail to stop after accident and commit indictable offence (burglary) whilst on bail – two incidents of offending in close temporal proximity – burglary on residential home followed by opportunistic theft of unattended vehicle in which 13 year old son of owner was seated in rear seat – offender let boy out of vehicle very soon after becoming aware of his presence – boy slightly injured as leaving when door of vehicle made contact with a parked vehicle – offender drove away but arrested shortly afterwards – offender 21 years old at time of offending - relevant criminal record – on a CCO and bail at time of offending – offender’s compromised cognitive functioning and use of drugs contributed to his offending – prospects of rehabilitation considered “fair at best”.
Legislation Cited: Crimes Act 1958; Sentencing Act 1991
Cases Cited:
Sentence: Total effective sentence of 20 months with non-parole period of 12 months; Pre-sentence detention of 239 days declared; s.6AAA indication of 2 ½ years with non-parole period of 18 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr N. Goodenough (Plea) Ms L Custovic (Sentence) | Office of Public Prosecutions |
| For the Accused | Ms C. Blakeney | Greg Thomas |
HIS HONOUR:
Introduction
1 Peter Mading, you have pleaded guilty to an indictment containing four charges. Charge 1 alleges an offence of burglary; Charge 2, an offence of theft of motor vehicle; Charge 3, an offence of false imprisonment and Charge 4, an offence of reckless conduct endangering person. The maximum penalty for each of charges 1, 2 and 3 is 10 years’ imprisonment, while for Charge 4 it is five years’ imprisonment.
2 You also consented to this Court having jurisdiction in respect of three related summary charges, namely, drive whilst disqualified, fail to stop after an accident and committing an indictable offence whilst on bail. You pleaded guilty to each of those charges, which carry the following maximum penalties, respectively:
·
For drive whilst disqualified, four months’ imprisonment or a fine of
30 penalty units;
· For fail to stop after an accident, four months’ imprisonment or a fine of 40 penalty units; and
· For committing an indictable offence whilst on bail, three months’ imprisonment or a fine of 30 penalty units.
3 The circumstances in which you came to commit the offences for which you must now be sentenced are set out in the typed prosecution opening dated
15 June 2018, a copy of which was tendered as Exhibit A on the plea hearing. I have had regard to that prosecution opening when determining the appropriate sentence in this case.
Circumstances of the offending
4
On 6 November 2017, you committed a number of offences while on bail for burglary and other offences, and while subject to a 12-month Community Correction Order you had received at Melbourne Magistrates’ Court on
26 October 2017. You were 21 years of age.
5 Shortly before 3.00 pm on that date, you entered the unlocked backdoor of a home in Conrad Street, St Albans. Two of the three adult occupants had left the house only a very short time earlier, while the third was about to return home from work. So, the house was empty when you first entered.
6 That soon changed, however. At about 3.15 pm, the third occupant, a male, returned home. As he entered the kitchen, he was presented with a somewhat bizarre sight; he saw you, a complete stranger, standing in the hallway eating biscuits. When he asked you what you were doing there, you told him that you had family at the house and then asked him for cigarettes. He became scared. You continued to look around the house and enter various rooms, one of which you claimed was yours.
7 When he noticed that you were wearing his Prada sunglasses, he asked you to return them. In response, you offered him your own sunglasses in exchange. You only returned his sunglasses when he insisted that you do so. After being in the house for about 15 minutes, you left without taking anything. A short time later, the other occupants of the house returned home.
8 The circumstances just described form the factual basis for the offence of burglary alleged in Charge 1 on the indictment. As is clear from the wording of the charge itself, you entered those premises as a trespasser with the intention of stealing. It was the commission of that substantive offence of burglary while on bail that gives rise to the offence of committing an indictable offence whilst on bail that is alleged in summary Charge 8.
9
A short time later, at about 3.30 pm, a 13-year-old male student from
St Albans Secondary College was collected from school by his mother. As she drove them both home, she stopped enroute to deposit clothing in a charity bin at the corner of Conrad and Theodore Streets, in St Albans. As she left her vehicle with the clothing, she left the motor running. Her son remained seated in the back seat.
10 You must have seen what was occurring and taken advantage of the very brief window of opportunity that presented itself. You got into the vacant driver’s seat and drove her vehicle away. According to the boy, you did not realise at first that he was in the vehicle.
11 That soon changed, however, as he confronted you by saying, “What are you doing?” and by striking you to the back of the head. You responded by telling him to calm down and to “shut the fuck up”. He then told you that his mother was poor and did not have any money to get another car. Your response was hardly sympathetic; you told him that you were also poor.
12 At that point, you accelerated to a fast speed for about 15 seconds. That caused the boy to demand that you let him out of the vehicle. In response, you immediately stopped to allow him to get out.
13 Your actions in driving the vehicle as you did, for the relatively short time that you were aware of the boy’s presence in the car, form the factual foundation for the offence of false imprisonment alleged in Charge 3 on the indictment.
14 As you stopped the vehicle to allow the boy to get out, he opened the left passenger door. As he did so, the door struck a parked van and was forced back on to his leg, causing a minor injury.[1] It is that conduct on your part which forms the factual basis for the charge of reckless conduct endangering person alleged in Charge 4 on the indictment.
[1] As to which, see two photographs of the injury tendered as exhibit B.
15 You then told him to shut the door and, after he had done so, you drove away. In circumstances where you knew the vehicle you were driving had just been involved in a collision with another vehicle, your conduct in failing to stop is sufficient to support the additional charge of failing to stop after an accident alleged in summary Charge 7.
16 As you drove away from the scene of the accident, you were pursued by the driver of the damaged van. The boy ran back to his mother who was, by that stage, in a distressed state.
17 Your actions in stealing the female victim’s vehicle gives rise to the offence of theft alleged in Charge 2 on the indictment.
18 At the relevant time, you were a disqualified driver. Therefore, by driving as you did on that day, you committed the further offence of driving whilst disqualified alleged in summary Charge 6.
Arrest and interview
19 You were arrested by police approximately 20 minutes later.
20 You were taken back to the Sunshine Police Station and interviewed.
21 In relation to the first incident, you denied breaking into the house in Conrad Street.
22 In relation to the second incident, you admitted to driving the vehicle but denied any wrongdoing. What you said, in effect, was the following:
· You had gone to St Albans and borrowed a vehicle from a lady which “apparently had a kid inside”;
· You knew her from church and her name was Elizabeth; and
· She had allowed you to use her car.
Timing of plea
23 You pleaded guilty to these offences on 10 April 2018. The prosecution accept that your plea was entered at an early stage of these proceedings. By taking the course that you have, at the stage that you have, you are entitled to a significant discount in your sentence. The extent of that discount will be made clear later in these sentencing reasons.
Pre-sentence detention
24 After being interviewed, you were charged and then remanded in custody.
25
As at the date on which the plea hearing was conducted, you had served
219 days of pre-sentence detention.[2] The total is now 239 days, not including today’s date.
[2] The plea hearing was conducted on 20 June 2018 and the figure of 219 days included that date.
Victim Impact
26 Two of the victims of the second incident have made victim impact statements describing the adverse effects that your offending has caused them.
27 In her statement made on 4 April 2018,[3] the female victim eloquently describes the fear that she felt when you drove away with her son. She is now hyper-vigilant about the safety of all of her children and worries whenever they are late returning home. She has trouble sleeping. Sadly, even though it is you who are entirely to blame, she feels a sense of personal guilt for what happened to her son. The damage to her vehicle resulted in the cancellation of a number of family outings and activities, which upset her children. It also led to a lengthy and stressful period of negotiation with her insurance company before the vehicle was repaired.
[3] Exhibit C.
28 She has noticed a change in her son; he is now more alert for both her and himself.
29 Her son made a victim impact statement on 5 April 2018.[4] As he explains, he received a graze and some swelling to his ankle which felt sore for a few weeks.[5] He missed some schooling. He now thinks about what happened every night and it makes him feel scared. He is much more aware of his surroundings since the incident and is not as trusting of people. He sometimes has flashbacks when he is in a vehicle with his mother and has taken to locking the doors. He now sits in the front seat so that he can better react to protect his mother in case something like this happens again.
[4] Exhibit D.
[5] As already noted, two photographs of his leg were tendered as Exhibit B on the plea.
Criminal Record
30 You have a very relevant prior criminal history, Mr Mading, having been sentenced for more than 70 offences in the five or so year period between September 2012 and October 2017.
31 Your earliest Court appearances were in the Children’s Court jurisdiction. Between 21 September 2012 and 2 July 2015, you had four such appearances. You were treated leniently on each occasion, receiving non-conviction orders for committing what on their face seem to be relatively serious types of offences.
32 For example, on 21 September 2012, you were placed on probation for armed robbery (2 charges), robbery (4 charges), attempted robbery (2 charges), aggravated burglary, burglary, theft (3 charges), recklessly cause injury, and assault by kicking.
33
You were dealt with for breaching that order on 25 September 2013, and also faced charges for other offences you had committed. They included armed robbery, attempted armed robbery (2 charges), robbery, and theft (2 charges). For those and other charges, you were released on a youth supervision order for 12 months. You faced breach proceedings in respect of that order, on
2 July 2015, as well as charges in relation to additional offences, some of which involved dishonesty related conduct.
34 Your appearances in the adult jurisdiction have all been at Melbourne Magistrates’ Court, the first being on 25 October 2015. On that occasion, you were convicted and placed on a 12 month community correction order in respect of most offences and convicted and fined for others. For present purposes, the most significant of those were robbery, affray, assault by kicking, various dishonesty related offences (7 charges) and committing an indictable offence whilst on bail.
35 The most recent prior Court appearance was on 26 October 2017. Prior to that date, you had spent 16 days on remand for what were a suite of wide-ranging offences. They included, inter alia, robbery, false imprisonment, entering private place without lawful excuse (2 charges), theft of a motor vehicle (2 charges), possess prohibited weapon and cartridge ammunition, commit indictable offence whilst on bail (2 charges) and various driving related offences. For that offending you received a combination sentence. The custodial component was very short and equated to time already served on remand. So, you were immediately released on a 12 month community correction order which included various conditions aimed at addressing the underlying causes for your offending and assisting you to rehabilitate.
36 Rather than grasp the opportunity presented by that order, you appear to have treated it with a degree of contempt as your current offending occurred a mere 11 days later.
37 Overall, your prior criminal record evidences a continuing disregard for the property rights and safety concerns of other members of the community. It also shows that you have a relatively poor record when it comes to taking advantage of community based Court dispositions aimed at assisting you. Those observations are relevant to this Court’s consideration of such matters as the need to deter you from re-offending, the assessment of your prospects of rehabilitation, and the degree of leniency that can be extended to you on this occasion.
Personal circumstances
38 I now turn to briefly outline your personal circumstances, Mr Mading.
39 You were born and initially raised in Sudan. You and your family fled to Egypt in 2000 and then travelled to Sydney, Australia, five years later. Your grasp of English at that time was only limited. You did not receive any formal education until arriving in Australia. Unsurprisingly, you struggled with the academic requirements of school. You have since become an Australian citizen.
40 Your father brought you and your younger brothers to Melbourne in order to get away from the abusive and aggressive behaviour of your mother who drank heavily and experienced problems with her mental health. You have had no significant ongoing contact with your mother since that time, although the two of you do speak on the phone from time to time.
41 Once in Melbourne, you completed the last two years of primary school. You had a lot of trouble in your secondary schooling and were bullied. For a while, you received intensive support from a school psychologist. You left in Year 11. At about that time, your father returned to Sudan in order to re-marry and that led to you experiencing some instability with your accommodation. In turn, you abused alcohol and used drugs. Although you feel close to an Aunt who lives here in Melbourne, she is unable to provide you with any accommodation at present. Currently, you have little in the way of family support.
42 After leaving school, you commenced a spray painting and panel beating course, but left three months into the six month course. After that, you have only worked intermittently; for example, you have done some work as a cleaner and a friend’s father has occasionally given you work restumping.
43 In terms of the future, you have a desire to do further education with a view to gaining employment, preferably in the automotive industry.
44 You have a significant history of substance abuse. You started binge drinking on a weekly basis when you were 15 or 16. That continued until your incarceration. The majority of your offending has occurred whilst under the influence of alcohol. You started using cannabis at around 17 and, from age 18 to 19, used it regularly. At around 19, you tried the drug methamphetamine (‘Ice’). You only use that drug rarely, as is the case with Xanax.
45 You received some counselling and treatment from the organisation YSAS, as well as assistance with gaining suitable accommodation.
46 You also saw a psychologist for a short period and were prescribed Avanza in 2016 to assist you to sleep.
47 You were initially assessed in 2007. Then, in 2014, you were assessed by a neuropsychologist and accepted as having an intellectual disability. You are a registered client of Disability Services. I note that in May of 2014, you were in receipt of case management from Disability Client Services following a request from the Melbourne Children’s Court.
48
You were assessed by the consultant psychologist, Gina Cidoni, on
29 December 2017. On initial testing, you obtained a Full-Scale IQ of 63 which was in the Extremely Low range (Mild Intellectual Disability). At that time, her view was that you were challenged in making sound judgements, problem solving and thinking clearly. She also noted that you were experiencing difficulties in an adult prison and seemed to have no family support.
49 You were then assessed by the clinical neuropsychologist, Mr Martin Jackson, on 28 May 2018. On testing, you obtained a Full-Scale IQ of 71, which is in the Borderline range. He considered that to be representative of your overall intellectual abilities. Your intellectual performance and performance on executive tasks were not consistent with someone with a Mild Intellectual Disability. In his view, that provides an explanation for why you have never identified yourself as having a disability. He concluded, therefore, that you do not have a Mild Intellectual Disability, but rather, you have primary impairments in areas of processing speed, high level attention and working memory.
50 As for the origins of your cognitive impairments, Mr Jackson considered it highly likely that they have been caused by your previous alcohol and drug abuse. Such impairments are entirely consistent with the effects of binge drinking and drugs on an adolescent brain.
51 Mr Jackson noted the initial assessments that had been undertaken by the Department of Human Services occurred shortly after your family arrived in Australia in the context where you did not speak any English. He therefore concluded that those original performances could easily have been affected by both your psychosocial situation and your very limited experience of English.
52 He noted that drug and alcohol use had impaired your cognition in the past few years and that explained why you had performed in the Mild Intellectual Disability Range on previous tests. Now that you have been alcohol and substance free for over six months, it is clear that your cognition is better than people previously realised.
53 Mr Jackson explained the change in your performance in intellectual testing between December 2017 and late May 2018 by the fact that Ms Cidoni tested you only seven weeks or so after you were first taken into custody. In those circumstances, you may well have been experiencing the effects of recent alcohol and drug use. The major improvement in general intellectual ability is explained by the fact that you did not use any alcohol or drugs over the ensuing months.
54 In light of the fact that you are still only 22, Mr Jackson considers that there is room for further improvement in your cognitive skills over the next 12-18 months, providing you abstain from drinking alcohol and using drugs.
55 You told Mr Jackson that you have mood swings but denied any problems with impulse control, anger management or low frustration tolerance. In your case, he concluded that there were no signs of a primary behavioural disorder associated with impulse control. He also noted that, clinically, you did not present with any overt signs of depression although there were signs of mild anxiety. There were no frank psychotic symptoms.
56
Mr Jackson indicated that there is generally no connection between offending and cognitive impairments of processing speeds, high level attention or working memory. In relation to the specific question whether there was any causal connection between your condition and the current offending,
Mr Jackson concluded that such offending was mainly related to drug and alcohol use rather than due to cognitive impairment.
57 However, he also concluded that your time in custody is more onerous due to the impairments that you have. Such difficulties would have been even greater in the earlier part of the remand period given the results of Ms Cidoni’s testing. But, even with some improvement over the intervening months, you are still slow to process information, you miss detail, there is a limit to how much information you can retain and there are problems with attention. In that context, the potential for you to get into difficulties with prison officers and other prisoners is obvious. As Mr Jackson did not conduct a formal personality test, he was unable to comment on whether your relatively young age would make you susceptible to the influence of older prisoners.
58 After Ms Cidoni was provided with a copy of Mr Jackson’s report, she prepared an addendum report dated 15 June 2018. She noted that even at the higher score of 71, your functioning in many areas of life are compromised, including deficits in adaptive functioning, reduced problem solving and decision making. Combined with substance abuse, the resultant behaviours are often impulsive, agitated and destructive. She also notes that you have been assaulted while in prison and have been prescribed an anti-depressant for sleep. She considers you to be somewhat naïve and impressionable and an easy target.
59 Given what both Mr Jackson and Ms Cidoni have said, in particular the former, I am satisfied that a number of the principles in Verdins case have been engaged. I am prepared to find that your low level of intellectual functioning at the time of your offending reduces to some extent your moral culpability for that offending. But, in light of the significant influence that your use of alcohol and drugs would have had, I consider that any reduction should be very modest. I am also satisfied that it is appropriate to reduce, to a moderate degree, the weight to be placed on deterrence and denunciation. Clearly, your condition means that your time in custody has been, and will continue to be more onerous for you than for prisoners with average or higher cognitive ability, and I will take that into account also.
60 It is noteworthy that at the time of this offending, you were on a very recently imposed community based order for other offending and awaiting an assessment for suitability for a justice plan for another offence. Sentencing for that matter had been deferred to 19 December 2017. Your current offending occurred before that assessment could be conducted.
61 You have a number of outstanding charges still to be heard. Those charges have been resolved and a plea hearing in the Magistrates Court will occur in the near future. Those charges relate to a vehicle theft allegedly committed in May 2017, a trespass allegedly committed on 5 November 2017, and a burglary allegedly committed on 19 November 2017
62 As is apparent from the relevant chronology, you were released on the community correction order on 26 October 2017 and quickly relapsed into alcohol abuse and drug use and then further offending. Your performance on that order was very poor.
63
You were arrested and remanded in custody for the current offending on
6 November 2017. You were then released on bail on 10 November. But, you failed to appear at a Court hearing on 13 November and a warrant for your arrest was issued. You were then arrested on 19 November in respect to further offending and remanded in custody for that and the current matter as well.
Explanation for current offending
64 In relation to the day of your offending, you told Dr Jackson that you had consumed ‘quite a bit’ of alcohol and were intoxicated. You had also used cannabis and taken Xanax. Consistent with what you have told your legal representatives, you said you only realised that the boy was in the car after you got in and commenced to drive away and that you let him out soon afterwards.
Other matters in mitigation
65 I have already referred to a number of matters in mitigation.
66 They include Mr Mading’s relatively young age, immaturity and compromised cognitive ability.
67 Also, his difficult background and consequent difficulties with education and employment.
68 He co-operated with the police and made some limited admissions.
69 He has pleaded guilty at an early stage and that warrants a significant reduction in his sentence. He has saved the community from the cost of a trial and spared the victims from giving evidence.
70 I am prepared to accept that he feels some remorse for what he did, in particular, during the second incident.
71 For a number of reasons, he is finding gaol a difficult experience and that will continue to be the case for the remainder of his sentence.
72 He has, however, endeavoured to make some good use of his time on remand. He has some insight into the causal connection between his use of alcohol and drugs and his offending, although that may not be fully developed given his cognitive limitations.
Gravity of the offending
73 This Court must have regard to the objective gravity of the offending.
74 Burglary is an intrinsically serious offence as is reflected by the relatively high maximum penalty. Whilst the offence that you committed involved an intent to steal, not assault, it was witnessed by one of the occupants of the house who was understandably concerned.
75 The offending in the second incident was audacious and quite troubling. The offences of theft and false imprisonment carry moderately high maximum penalties and that of conduct endangering person allows for imprisonment as a sentencing option.
76 The theft of the vehicle, while opportunistic, was mean and had a significant impact on the female owner and her family.
77 Whilst you did not know the boy was inside when you stole the vehicle, and while the period of the false imprisonment was relatively short, it was nonetheless serious and frightening conduct on your part, from which that boy and his mother are still trying to recover.
78 I consider that the offence of conduct endangering person is neither a serious nor a minor example of its type.
79 Of course, you should never have even been driving on that date since you were, by Court order, a disqualified driver. That is of itself, a relatively serious offence. So too is that of failing to stop after an accident.
80 The fact that Mr Mading was on a community correction order at the time, aggravates the current offending.
81 Whilst I note that all of the offences just mentioned were also committed whilst on bail, only that of burglary is the subject of related summary Charge 8. There is therefore a need to guard against double punishment when sentencing for the burglary charge and this summary charge. Whilst I consider the fact that Mr Mading was on bail at the time to be an aggravating feature of the burglary offence, I will not punish him twice for the conduct implicit in the burglary. The essence of the summary charge of committing an indictable offence whilst on bail is the fact that the offender failed to abide by the Court order giving him conditional release.
Relevant Sentencing Principles
82 Even allowing for some moderation, general deterrence and denunciation are important considerations in this sentencing task.
83 So too is the need to personally deter Mr Mading from committing any similar offences in the future. This offending was serious and concerning to say the least. Being subject to a community correction order and a grant of bail were not sufficient deterrents to him re-offending very quickly. He also has a relevant criminal history.
84 Those reasons, together with Mr Mading’s cognitive impairments and inclination to abuse alcohol and drugs, means that there is a clear need to offer some degree of protection to the community from him.
85 So, this court must, by the sentence that it imposes, seek to denounce the criminal conduct, protect the community, deter Mr Mading and others from similarly offending, and punish Mr Mading in a manner and to an extent that is just in all the circumstances. In the particular circumstances of this case, that means imposing a wholly custodial sentence in the form of a head sentence with some further time to serve before Mr Mading becomes eligible for release on parole.
86 I note that Mr Mading was on bail at the time he committed these offences and therefore s 16 (3C) of the Sentencing Act 1991 is engaged. That does not, however, do away with the totality principle, which remains important in the context of this case.
87 In particular, the totality principle arises for consideration as all of these offences were committed on the same afternoon and, in respect of those in the second incident, during the course of a relatively short, single episode.
88 As for his age and prospects for rehabilitation, it must be said that despite his relatively young age, those prospects are "fair at best." Mr Mading has a serious and entrenched addiction to drugs and alcohol. There are reasons for that, which I well understand, but the fact remains that those problems have been linked to his past offending and it is no different on this occasion. So, unless and until he can successfully overcome those issues through focussed and appropriate counselling and treatment, his chances of not reverting to criminal activity once released are low. To have any real chance of success, that counselling and treatment must be undertaken in tandem with specialist psychological counselling. It has to be a holistic approach as those issues are nuanced and inextricably interlinked.
89 But one of the main aims of the criminal justice system is to encourage and assist offenders to rehabilitate. It is a worthy aim and assumes more importance the younger an offender is. Here, Mr Mading is still quite young and not yet entrenched in a criminal lifestyle. It would be a mistake to impose a very heavy sentence at this stage. Whilst there is a need to impose a significant sentence in this case, it should not be forgotten that fostering an offender’s rehabilitation is one of the means by which the community can be better protected in the future. It is with that in mind, that I have given careful consideration to the length of the sentence to be imposed in this case and, in particular, the length of the non-parole period.
Sentencing submissions
90 In her submissions on sentence, Ms Blakeney acknowledged that this offending was serious and warranted an immediate sentence of imprisonment. In her primary submission, she urged the Court to impose a combination sentence which involved a term of imprisonment followed by a community correction order that included a justice plan. By way of alternative submission, she urged the court to pay due regard to her client’s relative youth and the other matters in mitigation, and impose as low a sentence as could be. Implicit in that submission was the request to fix a relatively low non-parole period.
91 For their part, the prosecution emphasised the serious nature of this offending and the need to give adequate recognition and weight to a number of important sentencing considerations. Mr Goodenough, counsel who appeared on behalf of the Director, submitted that nothing other than the imposition of a sentence involving a head sentence and non-parole period was open in the particular circumstances of this case.
Analysis
92 In my view, the offending in this case is sufficiently serious to warrant the imposition of a relatively significant term of imprisonment. I consider it to be too serious for a combination sentence. Another reason for excluding a combination sentence is Mr Mading’s poor performance whilst on the most recently imposed community correction order and the fact that this offending occurred while on that order and on bail.
93 As for the non-parole period, I accept that there is a clear need to provide
Mr Mading with an opportunity for release into the community on a suitably tailored period of supervised parole, but there are limits as to how disparate that period can be when measured against the appropriate head sentence. It cannot be so low as to undermine some of the very objectives that the sentence is designed to achieve, including just punishment.
94 Having done my best to balance and weigh the relevant and, in some respects, competing considerations in this case, I have decided to sentence Mr Mading as follows.
Sentence
95 Mr Mading will be convicted on each charge and sentenced to the following terms of imprisonment:
96 Charge 1, burglary, 12 months.
97 Charge 2, theft, 12 months.
98 Charge 3, false imprisonment, nine months.
99 Charge 4, conduct endangering person, six months.
100 Related Summary Charge 6, drive whilst disqualified, one month.
101 Related Summary Charge 7, fail to stop after accident, one month.
102 Related Summary Charge 8, commit indictable offence (burglary) whilst on bail, one month.
103 The sentence of 12 months imposed for Charge 2 will be the base sentence.
104 I order that the following periods are to be served cumulatively on that base sentence and on each other: Four months of the sentence imposed for Charge 1, three months of the sentence imposed for Charge 3, and one month of the sentence imposed for Charge 4.
105 Otherwise, the sentences imposed today are to be served concurrently.
106 The total effective sentence is therefore 20 months’ imprisonment.
107 In respect of that head sentence, I fix a non-parole period of 12 months.
Pre-Sentence Detention
108
Pursuant to section 18(1) of the Sentencing Act 1991, I declare that
Mr Mading has already served a total period of 239 days pre-sentence detention, not including today’s date, in respect of this sentence, and I order that such declaration and its details be entered in the records of this court and the period be deducted administratively.
Section 6 AAA indication
109 Pursuant to section 6AAA of the Sentencing Act 1991, this court states that had Mr Mading pleaded not guilty to the offences for which he has been sentenced to terms of imprisonment today, and had he been convicted of those offences, he would have been sentenced to a total effective sentence of 2 ½ years’ imprisonment with a non-parole period of 18 months.
Cancellation and Disqualification: Driver’s Licence
110 I note that in respect to Charge 2, the offence of theft of a motor vehicle, there is a mandatory requirement to either cancel or suspend any driving licences held by Mr Mading, pursuant to s 89(4) of the Sentencing Act 1991. In the event that no period is fixed by the court, s 89(5) states that such period will be three months.
111 In my view, given the circumstances of this offence together with Mr Mading’s criminal record, I consider it appropriate to make a disqualification order for a period greater than the default period of three months.
112 Accordingly, in respect of Charge 2 on the indictment, I order that any driving licences or permits currently held by Mr Mading are cancelled. I further order that he is disqualified from obtaining any other licence or permit to drive for a period of six months, which period is to commence on the date that he is released from custody.
113 In respect of each of summary Charges 6 and 7, I make a similar order, save that the period of disqualification in each case will be three months. Those periods will commence on the same date as that for Charge 2 and run concurrently.
Forensic Sample Order
114 In all of the circumstances of this case, I am prepared to exercise my discretion in favour of granting the prosecution’s application for an order authorising the taking of a forensic sample from Mr Mading pursuant to s.464ZF (2) of the Crimes Act 1958. I have made that decision because both the seriousness of his offending and his prior convictions warrant the order, the order was not opposed and the granting of the order is in the public interest.
115 Accordingly, I order that Mr Mading undergo a forensic procedure for the taking of a scraping from the mouth and/or a blood sample in accordance with Subdivision 30A of Part 3 of the Act until a sufficient sample is obtained for placement on the database.
116 Ms Blakeney, I am about to tell your client what I am required to tell him under the Act. I would be assisted if you could approach the dock now and assist him with understanding that explanation if he needs it after I give it.
117 MS BLAKENEY: Thank you, Your Honour.
118 HIS HONOUR: Thank you. Mr Mading, I am required to inform you that if at the time of request you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force, then the sample to be taken will be a blood sample and the police may use reasonable force to enable that forensic procedure to be conducted. Do you understand that?
119 OFFENDER: Yes.
120 HIS HONOUR: I will just note for the transcript that Ms Blakeney has spoken to Mr Mading both before and after I informed him of that matter.
121 Mr Mading, I will just ask you again. Dou you understand what I have told you?
122 OFFENDER: Yes.
123 HIS HONOUR: Yes, thank you. Thank you, Ms Blakeney.
Other Matters
124 Counsel, are there any matters that either of you wish to raise in respect of either the sentence or reasons for sentence at this stage?
125 MS CUSTOVIC: No, your Honour.
126 MS BLAKENEY: No, your Honour.
127 HIS HONOUR: Very well. I will now stand down until the next matter is ready to proceed.
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