Director of Public Prosecutions v Malone

[2015] VCC 1820

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

AT MELBOURNE

CRIMINAL DIVISION

DIRECTOR OF PUBLIC PROSECUTIONS

v

JARROD MALONE

---

JUDGE:	HER HONOUR JUDGE PULLEN
WHERE HELD:	Melbourne
DATE OF HEARING:	12 November and 2 December 2015
DATE OF SENTENCE:	11 December 2015
CASE MAY BE CITED AS:	DPP v Malone
MEDIUM NEUTRAL CITATION:	[2015] VCC 1820

REASONS FOR SENTENCE
---

Subject:  
Catchwords:            
Legislation Cited:    
Cases Cited:            
Sentence:                

---

APPEARANCES:	Counsel	Solicitors
For the Prosecution	Ms N. Burnett	Office of Public Prosecutions
For the Offender	Ms G. Morgan	Stary Norton Halphen

HER HONOUR:

1       Jarrod Malone, you have pleaded guilty to two charges of aggravated burglary, two charges of theft, one charge of possessing an unregistered handgun, and one charge of possessing a drug of dependence.  The maximum penalties applicable to these offences are aggravated burglary, 25 years’ imprisonment, theft, ten years’ imprisonment, possess an unregistered handgun, 600 penalty units or seven years’ imprisonment, possess a drug of dependence, five penalty units.

2 You have also pleaded guilty to two charges pursuant to s.145 Criminal Procedure Act, Summary Charge 6, possess a prohibited weapon and Summary Charge 9, possess cartridge ammunition.  The maximum penalty applicable to possess a prohibited weapon, is 240 penalty units or two years’ imprisonment and possessing cartridge ammunition is 40 penalty units. 

3       These crimes arise out of events which took place on 21 March, 9 May and 13 May 2014.

4       I previously sentenced one of your co-offenders to some of these charges, Brandon Rooney, on 28 May 2015 specifically, on two charges of aggravated burglary and two charges of theft to an aggregate sentence of four months’ imprisonment and in addition Mr Rooney then serve a Community Correction Order for a period of three years, with a number of conditions attached to that order including community work, supervision, testing, treatment and judicial monitoring.  My reasons for sentence relevant to Mr Rooney should also be read and are attached to this sentence as Annexure A. 

5       I turn now to a summary of your offending, as contained within the prosecution opening (Exhibit A) and discussed during the course of your plea hearing. 

6       You were born in 1983 and at the time of this offending were 31 years of age.  You are 32 at sentence. 

7       There were two co-offenders, Brandon Rooney, then 19 years of age, and Corey Grant, then 29 years of age. 

8       On 21 March 2014, at about 5.00am, you and your two co-offenders attended 1A Simla Street, Mitcham.  Ms So and Mr Au had been living at that address for about a month.  The three of you were wearing gloves and with balaclavas covering your faces.  You had a large torch and your co-offenders an imitation firearm and crowbar.  Ms So was getting dressed for work and Mr Au was in bed.  They heard their dogs barking and Mr Au went to the front door to calm the dogs.  He was standing about a metre away from the door, when it was forced open and the three of you entered the house (Charge 1 – aggravated burglary).

9       You carried the torch and yelled at Mr Au, telling him to get down.  You remained near the front door. 

10      Your co-offender, Rooney, walked around the house looking at his watch, saying things like, “two minutes”.  Rooney placed various items, including a PlayStation 3 and mobile phones into his backpack.

11      Ms So saw your co-offender, Grant, walking towards the bedroom holding something in his hands, which she thought was a gun.  He asked her if she had any drugs or cash.  Ms So and Grant left the bedroom and went into the living room where Mr Au took cash out of Ms So’s wallet and gave it to you.

12      Your co-offender, Grant, who had the imitation firearm, asked Ms So for drugs and cash and one of you asked for mobile phones.

13      One of you also went to the bedroom, study, kitchen and bathroom to search for and collect property.  During that time, Ms So stayed in the living room with one of the offenders, who asked if there was a safe.  The three of you then left the premises with various items, including electrical goods, cash and a wallet (Charge 2 – theft).

14      As the three of you left, one of you said, “We have a man watching over the street for 20 minutes” and one of you smashed the alarm.  The three of you were in the house for approximately 15 minutes. 

15      You placed one of the stolen phones for sale on a website called Gumtree.  On 26 March 2014, you and your co-offender, Rooney, went to the Wantirna McDonalds to meet with Mr Yaweri, who responded to your Gumtree advertisement and who purchased the phone for $500. 

16      On the morning of 9 May 2014, Mr Sukumaran placed an advertisement on an internet advertising site called Craig’s List for “Puff Play”.  You exchanged details via email with Sukumaran, agreeing to meet him later that morning, asking what time his housemate would go to work and requesting he leave the door unlocked. 

17      At about 8.40am, you and Rooney attended at the Box Hill address and Mr Sukumaran let you in.  He walked a couple of steps into the living room, intending to head upstairs.  He turned and saw you letting Rooney into the house and lock the door (Charge 3 – aggravated burglary).  You said to Mr Sukumaran, “Mate, if you know what’s good for you, I think you should sit down”. 

18      You remained with Mr Sukumaran whilst Rooney ransacked the premises.  Mr Sukumaran noticed you were picking items up while talking to him and placing them into one of his flatmate’s bags.

19      You and Rooney were in the house about 20 to 30 minutes, and when you left, you said to Mr Sukumaran, “You’d better not call the cops, mate”.

20      You and Rooney left the premises with various items such as electrical goods, bags and sunglasses (Charge 4 – theft).

21      Mr Sukumaran identified you through Facebook using your email address. 

22      On 13 May 2014, police executed a search warrant at your home, which revealed stolen property that belonged to Mr Sukumaran, including items relating to the offending at 1A Simla Street, Mitcham.  One of the items located was an imitation firearm (Charge 5 – possess an unregistered firearm).

23      Police also located the following items at your address, including a pen pistol (Summary Charge 6).  The pen pistol was incapable of discharge, however in its condition it could be capable of discharge with modifications to the firing pin.

24      Also located were two .22 calibre ammunition (Summary Charge 9) and a small quantity of cannabis (Charge 6 on the indictment).  You were arrested and taken to Box Hill Police Station for interview.

25      Regarding the aggravated burglary at 1A Simla Street, Mitcham, you said that you pretty much just “go and, you know, go and get money really”.  You had information drug dealers were living there and you had driven past the house the day before.  You had spoken the day before also with a neighbour about the address and the people that lived there.  You agreed you wore gloves and a bandana to cover your face.

26      You said you were carrying a torch, and others a jemmy bar and a makeshift .22.  You nominated Corey Grant as also being involved in the burglary and I shall return to him in a moment.  You agreed you had made arrangements through Gumtree to sell the phone at Wantirna McDonalds.

27      Regarding your attendance at 6/20 Albion Road, Box Hill, you got into Craig’s List and thought Mr Sukumaran may have a bit of money or something that he could sell to get money.  You contacted him, making arrangements to meet him under the premise of having sex and using drugs.  You said you walked into the house and Rooney followed.  You thought the majority of the property was at your house and that some of it was too good to give away.  I discussed that answer with your counsel relevant to your alleged need for money and being the reason for your offending.  Your reason for offending, as you said was for money.  You had made the pen pistol, you said, but had not tried to use it.  You were not aware of any live rounds at your house.  The firearms were just “self-making”, not to use or anything of that degree. 

28      In the record of interview I accept you admitted your attendance at the home of Ms So and Mr Au with a torch and “on guard duty” during that offending.  You accepted in your interview you arranged the meeting when the second entry occurred.

29      I discussed with Ms Morgan, who appeared on your behalf, some concerning answers in your record of interview, however, I accept in that interview you admitted your offending, described feeling ‘bad’ about it, and were remorseful when becoming aware a female was at the property, relevant to Charges 1 and 2. 

30      Ms Morgan submitted you assisted police to identify the stolen property, and I accept that was so.

31      Ms Morgan also submitted you expressed remorse and insight, and such had been further enhanced since the interview.  She also submitted your account in many respects was consistent with that of the victims.

32      Ms Morgan conceded there were a number of aggravating features of your offending, including a level of planning of both aggravated burglaries, and that in relation to Charges 1 and 2 you were wearing a balaclava and thus disguised.  There is a further aggravating feature in that there were weapons present, although you were only personally in possession of a torch.  I note in that regard Mr Rooney pleaded guilty to one charge of aggravated burglary alleging intent to steal, presence of weapons and person present (Charge 1 on Indictment 201415233) and another charge of aggravated burglary, person present (no weapons alleged), (Charge 2 on that same indictment number).  The two charges of aggravated burglary to which you have pleaded guilty were intent to steal and person present (no weapons referred to in the charges themselves). 

33      Ms Morgan submitted that when you offended you were not under the influence of drugs or alcohol.  Whilst of course that is commendable, it means your offending was not the result of the effects of drugs or alcohol.

34      You pleaded guilty to these charges at the committal hearing on 29 May 2015, having been arrested on 13 May 2014.  There was a filing hearing and three committal case conferences, with a committal listed for 29 May 2015.  You indicated your intention to plead guilty prior to any witnesses being called to give evidence.  The matter then proceeded by way of straight hand-up brief.  You have pleaded guilty to these charges and are entitled to have that fact taken into account in your favour, and I do so, when sentencing.  The community has, by your plea, been spared the time and cost of a trial and witnesses have been spared the ordeal of having to give evidence upon your trial.  In that regard, I particularly refer to the victims of your offending. 

35      I also accept that your plea of guilty indicates remorse for your offending, as do your admissions in the record of interview you conducted with the police and also take into account, relevant to your remorse, your very recent assistance to the prosecution in supplying a possible lead to locating co-offender Grant.  That also indicates remorse. 

36      Ms Burnett, who appeared on behalf of the prosecution, clarified that on 16 April 2015, at a committal contest mention, those representing you at that time (prior to the involvement of Ms Morgan) indicated your intention to plead guilty to Charges 1 to 4 on the indictment and at that time you were defending Charges 5 to 10, referable to the remaining charges on the indictment and summary charges, apparently, it seems, due to a suggested issue with the "warrants".

37      I accept the significant issue between the parties for resolution at the contested committal was a "technical" argument regarding the pen pistol and that issue resolved without the ballistics expert being cross-examined.  Importantly, your victims were not required at court to be cross-examined. 

38      By your plea of guilty, as I have said, I accept you have indicated remorse for your offending and further, you have also expressed remorse to Ms Lechner, family and friends. 

39      There are victim impact statements before me from Ms So, Mr Au and Mr Sukumaran, the same as those before me when I sentenced Mr Rooney.  The victims of your offending have suffered considerably and I shall return to that later. 

40      You have admitted a prior court appearance.  On 22 August 2007 at Ringwood Magistrates’ Court you appeared on one charge of recklessly causing injury and one charge of assault by kicking.  You were sentenced to six months’ imprisonment to be served by way of an intensive corrections order.  You initially instructed that offending occurred in early 2007 and that in late 2006 you had a knee reconstruction.  Documentation provided subsequent to that earlier plea hearing confirmed your offending occurred on 14 January 2006 and your knee surgery in July 2005.  Following that knee operation you were on WorkCover for approximately 13 months.  

41      You instructed that following surgery, you were with friends at a hotel consuming alcohol, but you were not intoxicated.  Your friend was being assaulted by three men and you “jumped in” to assist your friend.  The injury charge apparently related to a broken jaw.  What is most concerning about that prior appearance is it involved violence, as does aggravated burglary, although, of course, I am well aware in your case before me there was no physical assault by you upon any of the victims before me.

42      I was told something of your personal history and circumstances by Ms Morgan and a report was also tendered from Carla Lechner, Consultant Psychologist, dated 5 November 2015. 

43      You told Ms Lechner your involvement in this offending was the result of financial desperation.  You had now engaged with a psychologist and, in Ms Lechner’s opinion, you would benefit from ongoing counselling.

44      You are the youngest of four children, although did not have contact with your parents or apparently your older sister, Pamela.  You said you had a good relationship with two other siblings and your brother Shannon, sister Julie and partner Chelsea were in court to support you.

45      You continued, you said, to have the support of your partner of 11 years, Chelsea Hollins.  Ms Hollins suffered a work injury about two years ago, and required treatment as a result.  She currently lives with her mother and has been visiting you in custody regularly since being on remand. 

46      You grew up in the Healesville area and attended a local primary school.  You described your family life as “pretty horrendous”, as described within her report at p.2.

47      You attended Healesville High School until you completed Year 10, then moved to Adelaide to work.  You then moved between Melbourne and Adelaide a few times, obtaining work mostly in sheet metal and machinery, and had also worked as a security guard for about five years.  You are currently not working and in receipt of Newstart allowance.

48      You told Ms Lechner you and Ms Hollins had been victims of a "random" shooting and were terrified by the ordeal and since then found it hard to leave the home.  That situation, you said, had been aggravated by a housing dispute which had resulted in a number of VCAT appearances. 

49      At interview, you referred to having suffered two serious head injuries, one whilst playing football and another from an assault when you worked as a bouncer, although an MRI scan apparently did not detect anything abnormal.  You said you still experience headaches, especially when stressed. 

50      Ms Lechner concluded your presentation was consistent with post-traumatic stress disorder.  I discussed this conclusion and my concerns regarding the basis upon which such was concluded and the transcript will reveal that discussion.  I expressed concern regarding the lack of independent material to support your instructions on a number of matters relevant to her conclusions.  In that regard, Ross v The Queen[1] is instructive. 

[1] [2015] VSCA 302, paras 21-35

51      You instructed, regarding the assault upon you by fifteen cricket players that the Croydon Police attended, although you did not go to hospital.  Ms Morgan was going to attempt to locate some material in relation to that assault and I note no further material has been provided in that regard. 

52      You also, as I have said, told Ms Lechner you and Ms Hollins were the victims of a "random" shooting in a car park in Vermont South.  You instructed that you were in the car with your partner when three cars "boxed" your car in.  One offender apparently got on the bonnet of your car, banged on the windscreen with a gun and the gun discharged accidentally, injuring his co-offender. 

53      I discussed with Ms Morgan exactly what information Ms Lechner had been given by you regarding this incident, given her description of it as a “random” attack.  I also discussed your instructions to Ms Lechner that, adding to any stress that you were feeling at the time of this offending, were 35 attendances at VCAT referable to a rental dispute.  Ms Morgan also referred to the stress of you appearing for Ms Hollins in an action at Fair Work Australia.  I note your care of Ms Hollins due to her back injuries was not relied upon as amounting to exceptional circumstances relevant to family hardship, rather as a further stress upon you at the time of your offending.

54      As I discussed with Ms Morgan, this material in particular you being the victim of "random" offending was in part relevant for her submission that your post-traumatic stress disorder enlivened either principles two and five of Verdins & Ors[2]. 

[2] (2007) 16 VR 269

55      Regarding the second limb of Verdins, Ms Morgan initially referred to the diagnosis of depression, anxiety and PTSD, lending support, she submitted, to a combination disposition of a prison term with a community correction order.  Regarding the fifth limb of Verdins, Ms Morgan referred to Ms Lechner’s conclusion you were “likely to find jail particularly onerous in light of your symptoms of depression, anxiety and PTSD”. 

56      Since those initial submissions by Ms Morgan, there has been a recent decision of the Court of Appeal, DPP v O’Neill[3], which addressed the assessment of whether or not Verdins would apply in any given case.  That decision is also instructive and helpful in particular in approaching this analysis.  Following the decision of O'Neill, Ms Morgan advised during the most recent adjournment period, I should add, that she would no longer be relying upon Verdins.  That concession, in my opinion, was appropriate and consistent with authority. 

[3] [2015] VSCA 325

57      Whilst in my opinion principles 2 and 5 of Verdins are not enlivened, there is, however, material before me, including the report of Ms Dunne, however, which was not enlivening specifically principle 5 in Verdins, means I can take into account, consistent with general sentencing principles, that imprisonment will likely be more burdensome for you given this is your first period in custody and that you will be upset/stressed at not being able to assist your partner whilst undergoing sentence. 

58      You were not formally assessed by Ms Lechner regarding your intelligence, however, impressed as being of average intelligence, generally capable of reflecting on the impact your behaviour had on others and yourself. 

59      Turning to drug and alcohol history, you told Ms Lechner you tried marijuana once when you were 15.  You did not use any other illicit drugs.  You had been prescribed antidepressant, Zoloft, however at the time of interview with Ms Lechner, you had not been taking it and the reason you gave was your "unstable accommodation".  I was told you now take this medication.  You instructed you rarely drank alcohol.

60      Your score on psychometric testing fell into the “extreme range” consistent with a diagnosis of clinical depression.  You were also administered the Beck Anxiety Inventory and scored in the severe “range”.

61      Ms Lechner noted you presented with both depression and anxiety at clinical levels, partly due to your current pending court hearing and partly due to longstanding mood problems from the trauma of your upbringing. 

62      Ms Lechner recommended ongoing psychological support, as well as monitoring of your mood state and appropriate pharmacotherapy. 

63      Turning to her summary and opinion.  You presented as a young man with a long history of exposure to trauma in your childhood and adolescence which resulted in a fragile sense of self, low self-esteem and chronic mood regulation problems.  Your offending at the time was due to financial desperation, although Ms Lechner concluded that your high level of stress at the time may have marred your judgment. 

64      Ms Lechner said you were raised in a dysfunctional family environment, subject to domestic violence from both parents as a victim and witness.  However, despite those problems I note you were a "reasonable" student with no social or behavioural problems. 

65      I discussed with Ms Morgan her submission that you had a dysfunctional background.  In that regard I noted your Curriculum Vitae (CV) (Exhibit 2).  The CV had been prepared by you to obtain employment.  Your "key competencies" seem to be somewhat at odds with mitigation of sentence on the basis of dysfunctional childhood/social deprivation.  I also note that at 32 you have not had multiple court appearances.  The CV, I note, was incomplete relevant to you returning to employment with Artcraft Pty Ltd in 2007, as I discussed with your counsel, although I stress such does not impact at all on your sentence, but is merely an observation. 

66      I also discussed with Ms Morgan my difficulty accepting any nexus between your dysfunctional background and this offending and referred to authorities such as DPP v Terrick and Ors[4] and Bugmy v The Queen[5], referable to dysfunctional background when sentencing and I also note the recent decision of Ellis v The Queen[6]

[4] [2009] VSCA 220

[5] [2013] HCA 374

[6] [2015] VSCA 320, paras 37 ++

67      Of relevance also is the seriousness of your offending.  Aggravated burglary has frequently been described as a serious offence by the Court of Appeal (see Hogarth v The Queen[7], Anderson v The Queen[8], DPP v Meyers[9]) to name a few. 

[7] (2012) 37 VR 658

[8] [2014] VSCA 255

[9] [2014] VSCA 314

68      Ms Morgan ultimately conceded on the material before me that her submission was not very strong, agreeing there was no actual nexus referred to within the report of Ms Lechner.

69      Its relevance, she submitted, was that you had poor examples in your childhood, a lack of appropriate father figure and difficulty developing the difference between right and wrong.  She conceded you had worked in relatively consistent employment and been able to be in the same relationship for 11 years and support your partner.  You also believed you would be able to obtain work when you have completed your imprisonment.

70      Returning to the opinion of Ms Lechner, you are likely to find jail particularly onerous in light of your symptoms of depression, anxiety and PTSD, and further, not having any idea, it seems, of who shot at you.

71      You had engaged with Ms Felicity Dunne, Psychologist, and described that intervention as helpful.  A report was also before me from Ms Dunne dated 11 August 2015. 

72      Ms Dunne first saw you on 27 January 2015 following referral from your GP.  You had been prescribed anti-depressant medication in March 2015 for depression/anxiety and your general practitioner had requested you participate in cognitive behavioural therapy.

73      Ms Dunne referred to your symptoms of anxiety and depression in the context of your partner’s illness and these legal matters.  Reference was also made to your partner, Chelsea, having a severe back injury and also depression and anxiety and being under the care of a psychiatrist.  You were Chelsea’s major supporter and you had been her main carer, although I note you are no longer actually living together.

74      You had attended eight appointments and been reliable and co-operative.  You had removed yourself from negative peer associations and demonstrated changes in anti-social thinking and were motivated to continue with therapy.

75      Ms Morgan submitted that at the time of this offending you were having a number of financial difficulties, that Ms Hollins was having difficulties in relation to payment following her claim, there had been numerous phone calls made to assist her, doctors’ appointments and medication for her and that there was further financial stress involved in the rental situation with bills to be paid.

76      I note your current status as a protection prisoner and such, to date, can be taken into account when sentencing you (see R v Males[10]) and I do. 

[10] [2007] VSCA 302

77      A number of references were before me.  

78      A reference from Tim Hanson dated 10 May 2015, who had known you for four years, having met at work and then developed a friendship.  You had worked together for two years and he remained in contact with you on a fortnightly basis.  You had expressed shame and remorse for your offending. 

79      Mr Hanson regarded this offending as surprising, having always found you to be reliable and trustworthy.  Mr Hanson made reference to you coming from a “broken” family raised by your father, who was mentally and physically abusive and that you lacked the support of your mother.

80      Mr Hanson described you as being overwhelmed with stress at your partner’s treatment at work and had become involved in her fight with Fair Work Australia. 

81      There was a reference from Andrew Ozman dated 24 May 2015, who was aware of the charges before the court and says that they were out of character for you.  You had expressed remorse for your offending.  Mr Ozman and his family have known you for about 15 years and you could be trusted and had counted on you for support in the past.  You had supported him following the recent death of his mother.  He was also aware you assisted your partner with her workplace difficulties as well as her depression and anxiety.  Mr Ozman referred to you seeking help for your depression.

82      There was also a reference from Dallas Murray dated 12 July 2015, who had known you for 18 years as a friend and relative.  He described you as having good moral character, witty, loyal, considerate, hardworking and genuine.  You were reliable, creative and generous. 

83      There was also a reference from Julie Malone, dated 13 August 2015, your sister.  She described you as kind, witty, generous, dependable and loyal.  You had spent a lot of quality time with her children.  You were a hard worker.  You were remorseful for your offending and had visited a psychologist. 

84      Also a reference from Shannon Malone, dated 3 November 2015, your brother.  You had expressed remorse for your offending.  He described you as loyal and kind with strong family values.  You had consistency of employment.  You provide support for your partner.  Reference was also made to the violence in the home when a child. 

85      There were also a number of victim impact statements before me.  The effects upon the victims of your offending have been profound.  There was a joint victim impact statement from Ms So and Mr Au, who referred to having to purchase phones to replace those stolen by you and your co-offenders, as well as other equipment and items.  Car keys were also stolen, which caused significant inconvenience.  There was also financial loss to them.  At the time of this offending, they were living in a rented property, but moved out straight after this offending.  For about six months after the offending, Ms So and Mr Au were very sensitive to knocking noises and noises outside the house, which made them wary.  They did not want to walk around the house alone and would triple check to see that doors were locked.

86      Mr Sukumaran, in his victim impact statement, referred to ongoing adverse psychological effects since your offending, which had been traumatising.  He had not been able to sleep or leave the house, fearing someone was watching him.  He saw you in nightmares and was scared he would be attacked in the future.  He was angry because he felt defenceless.  Even counselling was not helping.  He felt he did not deserve your offending and asked, “Why me?”  There has been a financial impact upon him including expensive phone bills when he sought emotional help and support from family, which involved international calls. 

87 The effects upon a victim are a relevant sentencing consideration (see s.5 Sentencing Act 1991). I am conscious, however, that I must not allow the effects upon a victim to swamp the sentencing process.

88      I turn to your co-offenders. 

89      Regarding co-offender, Grant, there is a warrant for his arrest for failing to appear on bail relevant to this offending.  I note your recent offer of assistance to the prosecution. 

90      As previously stated, Mr Rooney pleaded guilty to two charges of aggravated burglary, two charges of theft, and was sentenced by me on 28 May 2015 to an aggregate term of four months’ imprisonment together with a Community Correction Order for three years upon his release from custody.

91      As there are co-offenders, principles relevant to parity apply (see R v Taudevin[11] and Postiglione v The Queen[12]).

[11] [1996] 2 VR 402

[12] (1997) 189 CLR 295

92      Turning to parity, Ms Morgan conceded the difference in ages between yourself and Mr Rooney and Mr Rooney’s lack of prior criminal history.  She urged the roles of yourself and Mr Rooney were no more or less significant, nor did you have a subsequent matter, that is, a court matter. 

93      As with Mr Rooney, there were a number of aggravating features to your offending, in particular the level of planning involved on both occasions and the use of disguises, the latter being relevant to Charges 1 and 2.

94      Mr Rooney did not have any prior court appearances.  Whilst there was subsequent offending dealt with in December 2014 relevant to his rehabilitation prospects, the resultant disposition of an undertaking tended to suggest that the offending was not as serious as that before me.

95      Relevant also was Mr Rooney’s age, 19 at the time of offending and just short of 21 at sentence, being much younger than yourself and Mr Grant.  As a result, counsel who appeared on behalf of Mr Rooney relied upon the principles in R v Mills[13].  There is no doubt, as a young offender, rehabilitation is an important sentencing consideration. 

[13] [1998] 4 VR 235

96      I also note you are to be sentenced on more charges than Mr Rooney. 

97      As I discussed with counsel who appeared on behalf of Mr Rooney, and as I discussed with your counsel, your offending behaviour is very serious, including the reasons proffered as to why the particular victims were chosen, then again further offending on a second occasion.  All your victims were “innocent” and subjected to a terrifying invasion of their home by offenders masked and with weapons, masked in relation to Charges 1 and 2.  Reference was made there to home invasions being “a particularly nasty form of criminal conduct”, consistent with principles in Hogarth. 

98      I sentence you as a principal offender, as I did with Mr Rooney.  But, as I said, I am bound to and do take into account parity of sentence with your co-offenders, specifically Mr Rooney as, of course, Mr Grant is yet to be located and dealt with.  In my opinion, there are a number of factors which warrant a sentence in your case, different from that imposed on Mr Rooney. 

99      Turning to your rehabilitation prospects, I have guarded optimism although note in particular your relatively solid employment history, lack of drug/alcohol abuse, which provides a degree of hope you will be successfully rehabilitated, although I note this offending occurred absent drugs and alcohol. 

100     When sentencing you of course I must seek to maximise your chances of rehabilitation, as they may be. 

101     Turning to disposition, Ms Morgan conceded a term of imprisonment was appropriate and submitted such should be combined with a community correction order, rather than a head sentence with a non-parole period being imposed.

102     Ms Morgan submitted you had previously being sentenced to an intensive correction order and had successfully completed it. 

103     Ms Burnett, on behalf of the prosecution, submitted a period in custody was appropriate and that a combination of imprisonment and a community correction order would be within the range of appropriate dispositions. 

104     I am conscious of the decision of Boulton & Ors v The Queen[14], which has recently been considered in cases including Alam v The Queen[15] and DPP v Maxfield[16].  The Court of Appeal in Alam stressed the need for courts to rethink the conventional wisdom about whether prison is really the only option.  However, as Priest JA observed in Hutchinson v The Queen[17], Boulton does not offer a "get out of jail free" card. 

[14] [2014] VSCA 342

[15] [2015] VSCA 48

[16] [2015] VSCA 95

[17] [2015] VSCA 115

105     Nor did I understand Boulton to mean that stated sentencing principles relevant to particular offences, such as aggravated burglary, now amount to nought.  Nor did I understand Boulton to remove the need to consider s.5 Sentencing Act 1991, nor did I understand Boulton to remove the instinctive synthesis when sentencing.

106     The courts have also referred to the importance of judges being mindful of maximum penalties and, in the case of aggravated burglary, the maximum penalty set by Parliament is 25 years’ imprisonment, which reflects the seriousness with which Parliament regards such offending.

107     As previously stated, Courts have also referred to the seriousness of the offence of aggravated burglary. 

108     Your plea hearing was adjourned to 2 December and then again to 11 December 2015, part-heard on each occasion to enable your counsel to obtain further material should she so wish and I have endeavoured to refer to that during these sentencing remarks. 

109     In the interim, however, I requested you be assessed for your suitability or otherwise for a community correction order to enable me to carefully consider all dispositions.  The prosecution did not make any submissions in relation to disposition at the early stage, since then, however, there have been submissions made and I have previously referred to those in these sentencing remarks.  In addition I have heard submissions from the prosecutor, Ms Burnett, relevant to the serious nature of this offending and the matters that I must take into account when determining the appropriate disposition. 

110     At the return of this matter on 2 December 2015, a copy of the charges relating to your prior court appearance involving your offending on 14 January 2006 were before me (Exhibit 6).  There was also correspondence relevant to a work injury at Artcraft Pty Ltd on 9 July 2007 (Exhibit 7) when you were assaulted at work and also before me was your custody record showing your current protection status (Exhibit 8). 

111     You have whilst in custody awaiting sentence completed an OH&S course and had put your name down for other vocational courses.  In addition, I was told you have been employed in prison, which your counsel submitted had kept you busy. 

112     As well as matters personal to you, including your prospects of rehabilitation as I find them to be, I must also take into account such matters as deterrence, especially general deterrence, which is of considerable importance in a case such as this.

113     There is also the need for specific deterrence when sentencing you given your prior criminal history, albeit not for the same type of offending, but also that your offending occurred on two occasions, that is, two separate occasions before me with a period of time separating the first from the second, giving you plenty of opportunity to desist from offending on that second occasion. 

114     I must also consider the question of protection of members of the community from you and bear in mind the likelihood of your re-offending and this still concerns me. 

115     I am called upon by the Sentencing Act to manifest the community’s denunciation of your conduct and generally to impose a just punishment. 

116     In determining the appropriate sentence, I have taken into account principles of totality. 

117     I have concluded that the appropriate disposition (mindful of that imposed on Mr Rooney) is a sentence which combines a term of imprisonment and a community correction order. 

118     In so deciding, the individual sentences of imprisonment to be imposed on each relevant offence, they are, in my opinion, low and appear to be low.  These arguably low sentences individually and cumulatively reflect the fact that there is the additional imposition of a community correction order which will be imposed which you will need to serve after you serve your term of imprisonment. 

119     So I sentence you as follows. 

120     On Charge 1, you are convicted and sentenced to 10 months’ imprisonment. 

121     On Charge 2, you are convicted and sentenced to 6 months’ imprisonment. 

122     On Charge 3, you are convicted and sentenced to 12 months’ imprisonment. 

123     On Charge 4, you are convicted and sentenced to 6 months’ imprisonment. 

124     On Charge 5, you are convicted and sentenced to 3 months’ imprisonment. 

125     On Charge 6, you are convicted and fined $250.00. 

126     On Summary Charge 6, that being possess a prohibited weapon, you are convicted and sentenced to 1 months’ imprisonment. 

127     On Summary Charge 9, that is, possess cartridge ammunition, you are convicted and fined $300.00. 

128     I order the following by way of cumulation and concurrency. 

129     Charge 3 is the base sentence. 

130     I direct that 4 months of Charge 1 be served cumulatively upon Charge 3. 

131     I direct that 2 months of Charge 2 be served cumulatively upon Charge 3. 

132     I direct that 2 months of Charge 4 be served cumulatively upon Charge 3. 

133     I direct that 1 month of Charge 5 be served cumulatively upon Charge 3. 

134     The sentence that I have imposed on Summary Charge 6 is to be served concurrently with the sentences otherwise imposed. 

135     That results in a total effective sentence of 22 months imprisonment. 

136     For clarity the orders for cumulation are upon each other and upon the base sentence. 

137     Following your completion of the sentence of 22 months, I direct you then be subject to a Community Correction Order for 3 years. 

138     Before I ask if you to consent to such an order being made, I have to tell you a bit about the order so that you understand what it means.  

139     There are a number of core conditions that apply to every community corrections order, which will include this one. 

·You must not commit, whether in or outside Victoria, during the period of the order, that is, over 3 years, an offence punishable by imprisonment.

·You must report to and receive visits from the Secretary to the Department of Justice, or his or her nominee, during the period of the order, i.e. three years.

·You must report to the Community Corrections Centre at Lilydale within two clear days following your release from custody.

·You must notify the Secretary, or his or her nominee, of any change of address or employment within two clear working days after that change.

·You must not leave Victoria except with the permission of the Secretary to the Department of Justice, or his or her nominee.

·You must comply with any directions given by the Secretary that are necessary for the Secretary to give to ensure you comply with the order.

140     There are a number of other conditions that will be attached to this order, and they apply to you:

·     You have to perform 300 hours of unpaid community work over a period of 18 months as directed by the Regional Manager.

·     You must be under the supervision of a Community Corrections Officer for a period of 3 years.

·You are required to be supervised, monitored and managed as directed by the Secretary, or his or her nominee.

·     You must undergo mental health assessment and treatment including (but not limited to) mental health, psychological, neuropsychological and psychiatric treatment in a hospital or residential facility as directed by the Regional Manager. 

·     You must undergo programs or courses aimed at addressing factors relating to the offending as directed by the Regional Manager. 

·     You must attend for review of your progress and compliance or otherwise with conditions of the order and you have to come back before me on 16 November 2018. 

·     I direct that any non-compliance of these conditions is to be notified to me immediately.  That is one I add myself.  What that means is when you are on a CCO, rather than wait for you to have eight unacceptable absences, let us say, I request that they let me know as soon as there is one problem and then I get you back and we have a little chat and we take it from there.  So that is an additional one.  I just think you should be aware of that and I will then determine if the matter should be formally back before me. 

141     I can only impose a community correction order if you agree to such an order being imposed.  So I have to tell you even more about it. 

142     I should advise you that if you contravene or breach that order by committing further offences you can be charged and a sentence of imprisonment is one of the options that can be imposed for that breach. 

143     You can also be re-sentenced for the offences that are before me and one of the options available includes a further term of imprisonment.  Note I said that slowly. 

144     So you have got to be extra careful when you are on that community correction order.  No committing any further offences that might incur a term of imprisonment, otherwise you are back before the court, you are back before me and I have to re-sentence you on all these charges that are before me.  So you have got to be extra careful.

145     I also advise you that if you fail to comply with any direction of the Secretary to the Department of Justice, which means a Community Corrections officer or worker, as part of this order you can also be fined.

146     Now, I hope you are aware of all of that.  Have you spoken to him about this, Ms Morgan? 

147     MS MORGAN:  Yes, Your Honour. 

148     HER HONOUR:  You're satisfied he understands all of this. 

149     MS MORGAN:  I am, Your Honour. 

150     HER HONOUR:  All right.  Now, you have heard all of that.  Do you agree to the community correction order will all those conditions attached and being mindful of what can happen if you breach it?  Just stand up and speak into the microphone. 

151     OFFENDER:  Yes. 

152     HER HONOUR:  All right.  Have a seat.  Just pick a date in - yes.  Make it a November date.  All right, I have got to continue. 

153 Pursuant to s.18(4) Sentencing Act 1991, I declare you have spent 29 days in custody by way of pre-sentence detention (up to and including yesterday, 10 December 2015) and I direct that that be entered into the records of the court.

154 Pursuant to s.6AAA Sentencing Act 1991, had you pleaded not guilty to these charges and been found guilty of these charges, in other words, if you had pleaded not guilty and the jury had found you guilty, I would not have imposed a term of imprisonment plus a community correction order, rather I would have sentenced you to 6 years' gaol with a non-parole period of 4 years.

155 The prosecution has made application for a forensic sample pursuant to s.464ZF Crimes Act 1958. Ms Morgan, my note is, did not oppose the making of that order on your behalf and I make the order in the terms sought. It will be for a saliva sample and I do that on the basis of the seriousness of this offending and your prior criminal history. I must advise you the authorities may use reasonable force to obtain that sample.

156     The prosecution also made application for forfeiture and disposal orders.  Again, my note was that counsel on your behalf did not oppose the making of those orders and I make the orders in the terms sought.

157     There was also an order sought for compensation to be paid to the victims, Wai Ken Au and Yvonne So.  The making of that order, my note says, was not opposed by counsel on your behalf and I make the order in the terms sought, subject to whatever I hear in the next few minutes.  Now, were those orders correct - were they - - -

158     MS BURNETT:  Yes, Your Honour. 

159     HER HONOUR:  All right, that's fine.  Those were my notes, I just want to double check these things.  Now, do counsel require any further assistance or want any further assistance with the mathematics? 

160     MS BURNETT:  No, Your Honour. 

161     MS MORGAN:  No, Your Honour.  Thank you, Your Honour. 

162     HER HONOUR:  All right.  All adds up, you're all right with that.  Now, the other thing was, the judicial monitoring we'll make Friday, 16 November 2018 at 9.30 am.  Long way away but there you go.  I will see how you are travelling at that time.  You can explain all that to him, Ms Morgan. 

163     MS MORGAN:  Yes. 

164     HER HONOUR:  All right, now, is there anything further at this stage? 

165     MS MORGAN:  No, thank you, Your Honour. 

166     HER HONOUR:  You have got to sign this community correction order document acknowledging your willingness to be on the CCO, you are consenting to it. 

167     MS MORGAN:  Yes, Your Honour. 

168     HER HONOUR:  All right.  Thank you both for your assistance.  Thanks Mr Malone. 

(Annexure A attached.)

- - -

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

AT MELBOURNE

CRIMINAL DIVISION

Case No. CR-15-00545

DIRECTOR OF PUBLIC PROSECUTIONS

v

BRANDON ROONEY

---

JUDGE:	HER HONOUR JUDGE PULLEN
WHERE HELD:	Melbourne
DATE OF HEARING:	20 May 2015
DATE OF SENTENCE:	28 May 2015
CASE MAY BE CITED AS:	DPP v Rooney
MEDIUM NEUTRAL CITATION:	[2015] VCC

REASONS FOR SENTENCE
---

Subject:  
Catchwords:             
Legislation Cited:    
Cases Cited:            
Sentence:                 

---

APPEARANCES:	Counsel	Solicitors
For the Prosecution	Ms G. Walton	Office of Public Prosecutions
For the Accused	Ms J. Garner	Victoria Legal Aid

HER HONOUR:

169     Brandon Rooney, you have pleaded guilty to two charges of aggravated burglary and two charges of theft.  The maximum penalty applicable to the offence of aggravated burglary is 25 years’ imprisonment, and theft ten years’ imprisonment.

170     

These crimes arise out of events which took place on 21 March 2014 and on

9 May 2014.  It is not necessary for me to recount in great detail the facts of this matter as they are on transcript, the matter having been opened in some detail by the learned prosecutor consistent with Exhibit A. 

171     I proceed to sentence you on the basis of the facts as summarised by the prosecutor and discussed during the course of your plea hearing.  It is sufficient for present purposes to simply say the facts in this case are most serious.  It is particularly disturbing that you returned to commit similar offending on 9 May.

172     At the time of this offending you were 19 years of age and just short of 21 at sentence.  There are co‑accused in your offending, Jarrod Malone and Corey Grant, both 29 at the time of the offending, relevant to Charges 1 and 2, and Jarrod Malone relevant to Charges 3 and 4. 

173     Neither have been dealt with by the Court.  There is a warrant for Grant’s arrest following his failure to appear at Court.  Malone is listed for a committal case conference in the Melbourne Magistrates’ Court on 18 May 2015.

174     I turn to a brief summary of your offending relevant to Charges 1 and 2.  At approximately 5.00am on 21 March 2014, you and your two co‑offenders attended a private house address in Mitcham.  The two victims, both aged 26, had been living at that address for about one month.

175     The three of you were wearing white gloves and balaclavas covering your faces.  You had a crowbar and your co‑offenders an imitation firearm and a large torch.

176     Mr Au was getting dressed for work and Ms So was in bed.  They heard their dogs barking and Mr Au went to the front door to calm the dogs.  When he was standing about a metre from the front door it was forced open and the three of you entered his home.  The offender who was carrying a large torch yelled, "Get down" to Mr Au.  You walked around the house looking at your watch, saying things like "Two minutes".  You placed various items including a PlayStation 3 and two mobile phones into your backpack.

177     Ms So saw one of the offenders walk toward the bedroom holding something in his hands, which she thought was a gun.  That offender asked her if she had any drugs or cash.  Ms So then went with that offender into the living room where Mr Au gave cash to the offender.  The offender with the imitation firearm asked Ms So for drugs and cash, one asked for mobile phones.

178     One of the offenders went to the bedroom, study, kitchen and bathroom to search and collect property.  During that time Ms So was in the living room.  One of the co-offenders asked if there was a safe.  The three of you left the premises with various items.  As the three of you left, one said, "We have a man watching over the street for 20 minutes."  You had been in their home for about 15 minutes.

179     One of your co‑offenders placed the Apple iPhones that were stolen onto the Gumtree website.  That phone was subsequently purchased for $500 from you and one of your co-offenders' by a person who responded to the Gumtree advertisement.

180     Disturbingly you offended again approximately one and a half months later. 

181     In the early morning of 9 May 2014, Mr Sukumaran (aged 24) placed an advertisement on an internet advertising site for “puff play”.  Your co‑offender Mr Malone exchanged details via email with the victim who agreed to meet later that morning.

182     

At about 8.40am you and Malone attended the victim’s home in Box Hill. 

Mr Sukumaran let Malone in and then saw Malone letting you into the house and lock the door.  Malone told Mr Sukumaran to calm down and sit down and it would soon be over soon.  He said. “It’s up to you whether you want it to get violent or not.  We don’t want it to get violent.  We’re just here to try and make some money and stuff.”

183     Malone remained with Mr Sukumaran while you ransacked the premises.  Both you and Malone were in his house about 20-30 minutes.  When you both left, Malone said to Mr Sukumaran, “You better not call the cops, mate.”  You and Malone left the premises with various items. 

184     On 13 May 2014 police executed a search warrant at Malone’s house which revealed property stolen that belonged to Mr Sukumaran.

185     On that same day you were arrested at your home address.  You handed police the Nike runners stolen from Mr Sukumaran’s home and also the clothing worn by you when selling the stolen phone relevant to Charge 2.

186     You were taken to Box Hill Police Station for interview and made admissions regarding Charges 1 and 2, saying you were told that drug dealers lived at that address.  That you and Malone went to the address the day before to make sure it was the right address.  Just prior to the offending you said you had met Corey Grant.  Conversation prior to your offending was around having a bag each, making sure your faces were covered and ‘pumping’ each other up.  You said you wore a black hoodie and bandanna.  You said Malone kicked the door in.  You said Grant had a gun but you did not know if it was real or not, and that it was not intended it be used but more for "intimidation". 

187     When in the house you realised, when you could not find the alleged drug dealer, that you might have been in the wrong house.  You said it was "gut wrenching really, with these two innocent – like but at the same time we couldn’t back out of it.  Like we still needed cash and stuff."  You said you filled up your backpack.  You had not seen Grant since, nor had you met him prior to the night before your offending in Charges 1 and 2.

188     You admitted to the police that you sold the phone on Gumtree for $500 and  attempted to justify your offending, saying it was better than robbing "some innocent off the street".  You agreed you had done the wrong thing, considering it was not the right people (ie not "Cliff").

189     Turning to your offending in Charges 3 and 4.  You said Malone had the idea.  You and Malone were going through some ‘stuff’ and saw an advertisement by a guy putting on a post "a fuck for a puff".  You went around to the house and the front door was left unlocked (as has been arranged by Malone in texts with the victim).  Malone went in first and you followed about ten seconds later. 

190     Malone said to the victim. "It’s up to you whether you want it to get violent or not.  We don’t want it to get violent.  We’re just here to try and make some money and stuff."

191     You said that whilst Malone stayed with the victim you went through the two rooms upstairs and took some of the victim’s property over a period of about 10-15 minutes.

192     You said your offending occurred because you needed cash and thought it was better that it was ‘this guy’ than some innocent family.  You said you were motivated to do this offending because the guy was just some “druggie”.  You had seen the advertisement and thought it was disgusting and you thought, "this guy needs to get robbed".  You told police the victim would have learnt more of a lesson from it, that it was pretty stupid of him giving out his address online.

193     There are a number of aggravating features of your offending, in particular the level of planning involved on both occasions and the use of disguises.  The latter relevant to Charges 1 and 2.

194     You have pleaded guilty to these charges and are entitled to have that fact taken into account in your favour, and I do so.  The community has by your plea been spared the time and cost of a trial and witnesses have been spared the ordeal of having to give evidence upon your trial.

195     This matter originally began in the summary stream of the Magistrates’ Court and you pleaded guilty at that time.  However on 17 December 2014, during the course of the plea hearing, the magistrate transferred the matter to the indictable stream.  You were then committed to this Court by way of straight hand‑up brief on 31 March 2015 after an application for summary jurisdiction was refused.  I accept your plea of guilty was entered at the earliest opportunity and also note your admissions to police at the time of your record of interview. 

196     You have not spent any time in custody by way of pre-sentence detention for these offences. 

197     You do not have any prior court appearances and that is significant when sentencing.  I note subsequent offending dealt with in December 2014 and such is relevant when assessing your rehabilitation prospects.  There are no charges pending.  You have certainly "jumped in at the deep end" with your offending that is before me.  

198     The victims of your offending have, not surprisingly, suffered considerably as a result of it, and I shall return to their victim statements shortly.

199     

Ms Garner appeared on your behalf at your plea hearing.  In her written outline of submissions (Exhibit 1) she referred to your subsequent offending.  On 10 June 2014, about a month after you were interviewed by police for these offences, you stole money and property from your mother and

step-father and were charged with dishonesty offences. 

200     On 15 July 2014 you were charged with committing an indictable offence on bail, contravening a bail conduct condition, intentionally damaging property, shop stealing, unlawful assault and were remanded in custody. 

201     

On 22 October 2014 all outstanding matters, including those before me, were listed at the Ringwood Magistrates’ Court.  The magistrate deferred sentence until 17 December 2014 to allow you to engage with "Headspace".  On that date he determined the charges now before me, as I have previously stated, were not suitable for summary hearing and were adjourned to the Melbourne Magistrates’ Court.  For your other further offending, you were placed on a

12 month undertaking. 

202     

Ms Garner addressed her thorough written submissions during the course of your plea hearing, in particular relying upon documents tendered relevant to your age, rehabilitation prospects and lack of prior offending.  Ultimately

Ms Garner’s submission was that a Community Correction Order be imposed for this offending.

203     Ms Garner referred to your background and feelings of abandonment, that you then mixed with others of an “anti-social persuasion” at the time of this offending and you had further instructed you used "ice" at the time. 

204     There was material before me referrable to your disadvantaged background and accept such is a relevant consideration (see Marrah v R[18] and DPP v Terrick & Ors[19]), although in my opinion, the weight to be given to this, given the nature of this offending, is subordinate to the need for denunciation, general deterrence and just punishment. 

[18] [2014] VSCA 119

[19] [2009] VSCA 220

205     Ms Garner relied on R v Mills[20].  There is no doubt, as a young offender, rehabilitation is an important sentencing consideration.  However, the general principles enunciated in Mills are just that, general propositions and are not to be treated as if they were of usual or automatic application.  See R v Lawrence[21], cited with approval in Gosland & McDonald v R[22].  See also Azzopardi v R[23] and Scott v R[24]. 

[20][1998] 4 VR 235

[21] (2004) 10 VR 125

[22] [2013 VSCA 269

[23] (2011) A Crim R 369

[24] [2013] VSCA 347

206     In R v Tran[25], Court of Appeal Callaway AJ said:

“The rehabilitation of youthful offenders, where practicable, is one of the great objectives of the criminal law, but it is not its only objective. It is not difficult to cite cases where other objectives have had to prevail. It is true that, in the case of a youthful offender, rehabilitation is usually far more important than general deterrence,¹⁶ but the word I have italicised is there to remind us that there are cases where just punishment, general deterrence or other sentencing objectives are at least equally important.” 

[25] (2002) 4 VR 457 at p462

207     As I discussed at length with Ms Garner, your offending behaviour is very serious, including the reasons proffered as to why you chose your victims, your involvement in the offending, and your offending on a second occasion, even after you realised there were "innocent" victims on the first occasion.  All your victims were "innocent victims", subjected to a terrifying invasion of their homes by offenders, masked and with weapons.  Home invasions are a “particularly nasty form of criminal conduct”, and such has been recoginsed by the courts in Hogarth v R[26]. 

[26] [2012] VSCA 302

208     Ms Garner submitted the principles in R v Verdins and Ors[27] were enlivened, reducing your moral culpability and moderating general and specific deterrence, relying on the report of Mr Joblin primarily.  In my opinion that report does not support her submissions. 

[27] (2007) 16 VR 269

209     In his conclusion, Mr Joblin considered a diagnosis of borderline personality disorder was not applicable, although you had symptoms of it, including depression and strong feelings of abandonment.  In his opinion the main issue that impacted on you related to your strong feelings of abandonment, which had led you to seek out and receive gratification from the company of persons of a "somewhat anti-social persuasion".  In that environment you began drug use.  In my opinion his conclusion does not enliven the Verdins principles. 

210     Regarding your ability to cope in an adult prison population, whilst Mr Joblin referred to some concerns in that regard his opinion at best was that you "may" have some considerable difficulty psychologically if incarcerated in the adult system.  At best in adult custody there was a “likelihood” of developing a personality disorder.  Specifically you would feel that the efforts you have made since being bailed in mid-2014 were in vain.  In my opinion that conclusion does not enliven Verdins Principles 5 and 6.

211     There have been numerous decisions in which the Court of Appeal has considered Verdins principles, Johnson v R[28], Tran v R[29], citing Carroll v R[30] and Latif & Ors v R[31], particularly regarding "causal connection".  That list is by no means exhaustive. 

[28] [2013] VSCA 362

[29] [2012] VSCA 110

[30] [2011] VSCA 150

[31] [2013] VSCA 51

212     The task for the sentencing judge in every case is to "examine what the evidence shows about the particular condition and how it affected the mental functioning of the offender, either at the time of the offending or at the time of sentencing, or both."  See Tran. 

213     In R v Zander[32], Court of Appeal Dodds-Streeton J stated:

"The principles of Verdins do not dictate the automatic mitigation of sentence in an offender, simply because he or she has suffered or is suffering from a mental illness, however severe.  Rather, Verdins requires scrutiny and assessment, based on cogent evidence, of the relationship between the mental disorder and the offending and other relevant matters." 

[32] [2009] VSCA 10

214     Whilst I do not accept that the conclusions reached by Mr Joblin and reasons for them do not enliven any of the principles in Verdins, I do however accept incarceration in an adult prison, the likelihood of you developing a personality disorder will increase and consistent with general sentencing principles,
I accept that prison will weigh more heavily upon you than other more able prisoners.  I have taken this into account when determining the appropriate sentence. 

215     Ms Garner relied upon your co-operation with Youth Justice whilst on bail for these offences. 

216     But before that I turn again to the report of Mr Joblin, Forensic Psychologist, dated 13 May 2015.  He outlined your history.  You came to Australia in 2011 from New Zealand, stayed six months, returned to New Zealand, then back to Australia in 2013.  You had been here since.

217     Your parents separated when you were 5.  You described your father in ambivalent terms.  You said he was a very heavy drinker, prone to anger and violence and that you often witnessed violence towards your mother and were also yourself the subject of physical abuse.  Your mother was in another relationship from when you were 12 and you described a very difficult relationship with your mother and step-father. 

218     You have two brothers and a sister.  You said you tried to maintain some contact with your brothers but with little success.  You described feelings of abandonment and rejection from your family.

219     You began schooling in Adelaide, then continued in Christchurch.  You described a number of problems at school, leaving school after three terms of Year 9.

220     At one stage you became a "street-kid" when in Christchurch.  You came to Australia and apparently your father did not make you particularly welcome, so you left his home, returning to New Zealand, staying for two years, I gather without seeing your mother, before returning to Queensland in 2013.

221     You had most recently been engaged in a pre‑apprenticeship course designed for young offenders, by the time you saw Mr Joblin and at the time of interview, you believed you had secured an apprenticeship with a firm in Burwood, but it would appear that that has not eventuated. 

222     You said you had previously been involved with a young lady who became pregnant to you and that she had a miscarriage and shortly thereafter the relationship ended.  At that time you said you had nowhere to live, had lost your job and in that context your offending before me occurred. 

223     Following being subsequently charged with other offences and spending approximately two weeks in custody, you were in accommodation organised by Salvo Care, and documents were placed before me relevant to your current accommodation. 

224     Regarding your drug and alcohol use, you reported to Mr Joblin that alcohol had never been a problem for you and cannabis use only relatively recently.  You had begun smoking ice, you said when you were 15 and at the time of this offending you said you had been using ice.  In Mr Joblin’s opinion you were fragile in relation to use of ice and ongoing assistance would be important.  Of concern I note your recent return to ice use on a number of occasions in 2015, albeit you have been receiving significant community assistance.  It is unclear from the report if Mr Joblin was aware of the extent of your ice use and numbers of times of it in 2015. 

225     As I said, a number of documents were also before me, including a number of supervised bail progress reports, prepared following your release on bail on 28 July 2014.

226     In many respects, in particular the earlier reports are positive, however of concern is the deterioration in your commitment to abstaining from drugs since January 2015. 

227     In the report of 20 August 2014 you had attended all appointments with Youth Justice and engaged well.  You were referred to Jesuit Social Services Next Steps Program for accommodation and were assessed as suitable for ongoing support.  It was anticipated you would be allocated to a YJCSS case manager.  You were then described as motivated to change.  You attended the Artful Dodgers music studio in Collingwood and apparently enjoyed it.  You had also been referred to residential detoxification units in Glen Iris, Fitzroy and Moreland, although not utilised those. 

228     In summary, you were described at that time as highly motivated and open to accessing the support of Youth Justice and other community services with high prospects for rehabilitation.

229     There was a further bail progress report dated 24 September 2014.  You had moved into a property at Chadstone, supported by a Youth Justice Community Support Service worker who engaged with you on a weekly basis. 

230     There had been recent reconnection by you with your mother, apparently meeting weekly for lunch.  As at September 2014, that is last year, you were not involved in education, training or employment, although indicated an intention to enrol in a spray painting and panel beating course.  You continued to attend Artful Dodgers.

231     You had been allocated to Mr Aaron McKee, YSAS and engaged in weekly appointments.  You reported occasional alcohol use but denied relapse into illicit substance use.  You had at that time demonstrated an ability to comply within a community setting with Youth Justice and were also assessed as having good prospects of rehabilitation.

232     There was a further bail progress report, 21 October 2014.  You had been referred to the Mission Australia Synergy Repairs for a spray painting and panel beating course and had attended an interview in that respect.  You had been accepted into the course three days a week, however had only attended for one day and said it was due to anxiety and recent panic attacks.  Since 2015 I note with concern your continued absences from that course.  You had continued however, as at October, to be with Artful Dodgers.  Again at that time your rehabilitation prospects were considered to be good, however in a further progress report of 15 December 2014, Youth Justice notified your police informants of concerns they had regarding your failure to attend appointments and concerns regarding your suspected substance misuse. 

233     As a result you received a verbal warning on 5 December 2014 and it would seem your attitude then improved.  Unfortunately since January 2015 your efforts of rehabilitation have deteriorated significantly despite numerous supports. 

234     At the time of the report in December you were still living at the property in Chadstone.  You had declined admission to residential detoxification, including ReGen, denying illicit substance use.  You reported occasional alcohol and cannabis use.  Use of those substances as I have said is concerning and in particular I am concerned about your disclosure of recent lapses of ice use and continuing use in 2015.

235     You also attended with Dr Narelle Warden from YHaRS for sessions to focus on your mental health difficulties and needs.  In her opinion you required ongoing intervention to develop more adaptive and functional coping strategies.

236     On 9 December 2014 you attended for assessment with Ms Karen Vogel at Headspace, Knox.  You were allocated to a clinician in 2015 but because of your absences from the program you were exited from it.  Your lack of commitment to that concerns me. 

237     Reference was made to you then, and I note currently, supported by a wide network of services including Youth Justice, YSAS, YJCSS, YHaRS, and Mission Australia.  You require clear structure, direction and assertive
follow-up.  Your primary risk factors were considered to be ongoing family issues, substance misuse and negative peer associations.

238     There was a further progress report dated 30 March 2015.  As recently as
5 February 2015 you had voluntarily admitted to Windana Youth Residential Withdrawal Unit in Dandenong for a ten day detoxification program, due to your ice drug use, however you chose to exit the program on 7 March approximately.  You said you exited early because you were confident you could continue to make progress in the community and did not believe a residential detoxification stay would be beneficial.  You then continued to use cannabis and alcohol.  As is now apparent your ice use also continued. 

239     Dr Warden noted you had experienced difficulty putting strategies into effect.  You ceased your involvement with Dr Warden on 16 December 2014 with a recommendation you attend with Headspace, and I have referred to your unsuccessful participation in that program.

240     You recommenced the spray painting and panel beating program on
18 February 2015 and remained involved with Artful Dodgers.

241     There was a further progress report dated 20 May 2015 which contained a number of concerning matters relevant to your rehabilitation prospects.  You had attended 39 out of 49 appointments for supervision with Youth Justice.  On five of the ten occasions you did not attend, you did not have a valid reason.  Generally your engagement had been described as positive.  That was your first experience of independent living and you had been receiving assistance from Ms Louise Dalton to assist.  Unfortunately, your engagement with Ms Dalton had been inconsistent and you disclosed several recent lapses of ice use, but to your credit I note you self-disclose. 

242     In counselling with Dr Warden over ten sessions, your engagement had been predominantly positive, although you adopted an avoidant coping style.  Regarding your referral to Headspace, you did not attend on 24 March 2015 and 30 March 2015.  You did attend on 13 April 2015 in the company of a representative of Youth Justice.  Unfortunately you failed to attend appointments on 20 April and 4 May 2015 and as a result your treatment with Headspace ended.

243     Your attendance in the spray painting and panel beating course in North Melbourne was confirmed.  There had been some improvement in your attendance and communication, although whilst you were to attend three days per week, you attended on most weeks, two days per week.  Apparently you struggled with time management and concentration. 

244     Whilst I note the author of the progress reports referred to your consistent desire to address your offending-related risk factors, there has been in my opinion behaviour by you in the recent months which calls into question your commitment. 

245     Ms Dunbar who has been involved with you on the Intensive Bail Program, in her frank evidence before me, conceded that from January 2015 you had not put in the same effort as prior to January 2015.  I was informed you had a number of relapses into ice use this year.  Further while you attended for a residential detoxification program, you stayed for only two of the ten days, exiting the program early because you said you then had issues with a girlfriend at the time. 

246     It became apparent from questioning of Ms Dunbar that you had in the past been prescribed medication by general practitioners and had been reluctant to use it and ceased using it.  In addition in relation to the spray painting course, you had been "tardy" in your attendances, averaging approximately two days per week, on occasions arriving late for work. 

247     All these matters are relevant when I am determining your rehabilitation prospects.  I am mindful however that Ms Dunbar has referred to a number of positive aspects also relevant to your rehabilitation. 

248     You admitted you had used ice a number of times between January 2015 and as recently as three weeks prior to this plea hearing. 

249     I was also advised by Ms Dunbar you went into a Residential Detoxification Program, as I previously said, and exited because of your then girlfriend.  No further referrals for detoxification were made.  Exiting that program prematurely for whatever reason concerns me.  Ms Garner submitted you may have learnt a lot in those two days and as such did not feel the need to remain.  Well if that be the case, that again shows your lack of insight into the need for ongoing treatment for drug use.  Ms Dunbar confirmed whilst continuing to work with Mr McKee you were still using ice.

250     You were not being tested for drug or alcohol use.  Ms Dunbar conceded your ice use was "a very significant risk factor".  Whilst Ms Dunbar gave evidence that you do realise you need to address your drug use, I am concerned about your ability to do that and perhaps your genuine desire to do it.

251     I was also told by Ms Dunbar you had in the past been prescribed Valium but were ambivalent to its use, which you would not take consistently.  Further you had been prescribed anti-depressants however after a couple of days ceased using it. 

252     Reference was also made to your attendance at Headspace by her, initially in December then on approximately 24 March and that you failed to attend a number of appointments and had been exited from the program. 

253     Ms Dunbar described you at times as mature and at other times immature emotionally.  In her opinion you were a vulnerable young person. 

254     

In general regarding the positive aspects of your rehabilitation, you had some victim empathy she said, had not previously been incarcerated in an adult prison undergoing sentence.  I am totally aware of that.  You now have the support of your family, although it was in your early stages that you had

pro-social goals and she thought were generally quite motivated.

255     Before me was a report from Aaron McKee, YSAS team leader, 18 May 2015.  You first engaged with YSAS on 31 July 2014 and achieved a number of goals, specifically engaging well with the writer, presenting as honest and open.  You demonstrated a willingness to engage in treatment and address substance use issues and were open to discussion about the links between your substance use and your offending behaviour.  A targeted education had been provided to you around harm minimisation and relapse prevention strategies. 

256     The report referred to your attendance for weekly appointments and engaging well in treatment.  I note however you have nevertheless maintained your ice use, in addition to cannabis and occasional alcohol use during your contact with Mr McKee.  I heard evidence from Mr Bayldon, also from YSAS.  Both he and Mr Tanner gave evidence before me. 

257     Before I refer to their evidence, I acknowledge, as I did during the plea hearing, the very difficult job undertaken by those dealing with young offenders in an effort to guide them towards a law-abiding lifestyle.  Their job is not easy.  It must be said however I was concerned about the lack of reference in the reports prepared for Court to aspects relevant to your rehabilitation, specifically your return to ice use in 2015. 

258     The community and judges expect that when determining the appropriate sentence to impose in any case, a judge must have all the relevant information before them, particularly if that information is known to the authors of reports.  It was concerning that information I consider directly relevant to assessing your rehabilitation prospects was absent, including reference to your continued use of ice. 

259     There is always a danger that written correspondence and references from organisations and persons will be accepted without the authors even being required to give evidence.  This may lead to a judge having incorrect or truncated detail relevant to rehabilitation and other issues. 

260     Mr Bayldon had only been involved in your direct supervision for three weeks prior to your plea hearing, involving as I understood it, only one face to face contact with you.  He had however read your file and the report of Mr McKee.  He conceded in evidence that you had lapses into ice this year.

261     There was documentation from Mr Mathew Tanner, education and employment officer with Synergy Auto Repairs, 20 May 2015 confirming your current enrolment in Certificate II in Automotive.  That work gives you the opportunity to work on and repair cars in the area of panel beating and spray painting and on completion of work experience it is hoped you will be moved on to an apprenticeship in either spray painting or panel beating.  Mr Tanner described you as having demonstrated maturity, a great attitude and initiative and willingness to learn.  You were described as having demonstrated honesty and good communication skills. 

262     Ms Garner’s instructor obtained some instructions from you regarding your “back problem” and I gather material that might relate to that, if it existed, was going to be provided to the Court before this sentence and after the plea hearing. 

263     Correspondence was forwarded to me subsequent to your plea hearing from your solicitor, Mr Jonathan Makary.  The report was from Dr Simon Morley, Radiologist, which was interpreted as indicating you did not suffer any injury to your back (Exhibit 8).  That was discussed briefly in your absence with Ms Garner this morning and she agreed the reports indicated you did not have any injury to your back. 

264     There were two reports from Salvo Care dated 22 October 2014 and 31 March 2015, the latter prepared by Louise Dalton, intensive support worker with Youth Justice Community Support Service.  In her conclusion she stated you had shown insight into your behaviour and had actively started working towards addressing the issues that had impacted on your life.  A further report from Ms Dalton was tendered, dated 20 May 2015.  Ongoing support could be provided by her on a weekly basis whilst you were in the Chadstone property and for up to six weeks after exiting. 

265     Mr Mathew Tanner in cross-examination conceded your initial attendance had been positive but that since then you had relapsed and had told him you had used ice on a number of occasions this year.  He confirmed that on approximately 12 occasions you attended only twice a week and not three times a week at the course or program.  The majority of those days that were missed, he said was on your reporting, that you had a back problem.  He gave evidence you would have the possibility of an apprenticeship.  I discussed with him my concerns about an apprenticeship in the field of panel beating and/or spray painting if you continued your ice use and the transcript will reveal that discussion.

266     There were a number of victim impact statements before me.  A joint statement prepared by Ms So and Mr Au.  Following this offending they moved out of their property.  For about six months after your offending they were very sensitive to knocking noises and noises outside the house they were then living in, even now triple-checking that their doors were locked.

267     There was a victim impact statement from Rueban Sukumaran, who described that since this offending he had not been able to sleep, eat or even step out of his house, fearing someone would be watching him.  He has visions of you at his gate and sees you in his nightmares.  He was scared he would be attacked in the future at some other location.  He described being angry and that he was defenceless.  Your offending had put his family under severe stress and trauma. 

268     Yours was no doubt very serious offending involving innocent persons in their own homes.  In particular, I note regarding Charges 1 and 2, the presence of weapons and disguises, no doubt terrifying to the victims. 

269     I am very concerned about your offending behaviour, even though you do not have any prior court appearances.  The maximum penalties applicable to this offending, particularly in relation to Charges 1 and 3, is 25 years’ imprisonment, which reflects the seriousness with which Parliament regards this offending. 

270     You have shown some improvement in your attitude, although I am very concerned about your recent and repeated relapse into ice use and early exit from residential detoxification.  I am concerned you lack an appreciation of the seriousness of using such drugs and perhaps the link of drug use to offending.  On the other hand, you have to date had a number of supports in the community and have coped quite well, putting to one side your relapse into ice use.  Your continued alcohol and cannabis consumption still causes me concern.  The only solution, Mr Rooney, is that you give them up, if you are going to be rehabilitated.

271     I am most unimpressed with your reasons for this offending and note the features that aggravate it, to which I have previously referred. 

272     Ultimately Ms Garner submitted that based on all the material before me, the appropriate disposition was a Community Correction Order.  If I considered there needed to be a term of detention/incarceration, then I should have you assessed for your suitability for a Youth Justice Centre order. 

273     Ms Walton, who appeared on behalf of the prosecution, submitted that a Community Correction Order on its own would be a manifestly inadequate sentence in all the circumstances.  Confinement, she submitted, was required for your offending, either a combination sentence or Youth Justice disposition. 

274     Ms Walton referred to the seriousness of your offending.  That your offending occurred in company, with weapons present, early in the morning at the victim’s home and that you stayed at the property for a significant period of time.  That there was also preplanning.  In relation to the second property she said this was one and a half months later.  You remained in that house about 20-30 minutes and again there was planning.  Both Charges 1 and 3, she submitted, involved targeted offending.

275     Ms Walton referred to the significant impact of your offending upon the victims.  Further, each of the offences were discrete relating to two separate occasions and with different victims.

276     She acknowledged remorse in your early plea of guilty and full admissions to police, although Ms Walton submitted there were questions about your level of insight and referred to the report of Mr Joblin.

277     Ms Walton submitted the Verdins principles were not enlivened.  Any mental impairment was limited.  In particular there was not a current diagnosis of borderline personality disorder at the time of your offending.  At best she said you had “symptoms developing” according to Mr Joblin.

278     Ms Walton submitted there was not the necessary connection between any mental impairment and your offending as such to decrease your moral culpability.  Ms Walton submitted ultimately the conclusion of Mr Joblin is that you sought out persons of anti-social persuation.

279     Ms Walton submitted whilst there was some potential applicability of limbs 5 and 6 of the Verdins principles, she submitted as there was no mental impairment which enlivened those principles, that there would be very limited application of Verdins, if at all to 5 and 6.  She did however concede, consistent with general sentencing principles, that it was relevant that prison would likely weigh more heavily upon you than another prisoner with your background and possible symptoms.

280     Ms Walton conceded Mills was relevant when sentencing you, but also referred me to Azzopardi. 

281     Ms Walton submitted general deterrence and specific deterrence were relevant when sentencing.  Whilst you did not have any prior criminal history and had made some progress with the Youth Justice program, these she said were two planned and targeted offences about a month and a half apart. 

282     I have carefully considered both counsels’ submissions and in making my determination I am mindful of the decision of Boulton & Ors[33] which has been referred to in other authorities including most recently DPP v Maxfield[34]  and also Alam v R[35].  I have not lost sight in your case of your age.  You are a "young offender" and rehabilitation is important when sentencing a young offender.  I am also aware that you do not have any prior court appearances and that is significant.  I am also aware and take into account your early plea of guilty, which commenced in effect from the time of your interview with the police.  Also I note your positive involvement with Youth Justice Centre since late July 2014 until early 2015. 

[33] [2014] VSCA 342

[34] [2015] VSCA 95

[35] [2015] VSCA 48 (para 20)

283     There are, however, very concerning aspects of your offending, including the gravity of it on two separate occasions, your rehabilitation prospects, I have concerns about your ability to be rehabilitated, in particular given your relapse into ice use over the approximate four months to date in 2015.  Although one can never give up and I do not give up hope of your rehabilitation, particularly at your age, it is clear you have a long way to go.  Part of the process is you understanding your need to avoid ice, drug use and to appropriately attend for detoxification and counselling.  Your rehabilitation prospects will greatly improve if you stop using ice, alcohol and cannabis and engage in meaningful employment. 

284     I have carefully considered the sentencing submissions made by Ms Garner.  But in my opinion, to sentence you to a term of detention in a Youth Justice Centre is not appropriate, even mindful as I am of all matters to which I have referred, in particular relevant to mitigation of sentence.

285     I have carefully considered a Community Correction Order, in light of Boulton.  Even accepting all that has been said by the Court of Appeal, enabling Community Correction Orders to accommodate more serious offences, in my opinion to impose only a Community Correction Order, even with the proposed conditions, would not appropriately address all sentencing principles that apply in your case.  In my opinion there must be a term of imprisonment imposed.  In so deciding, I am however mindful, you have not previously been in custody, other than for about two and a half weeks on remand and I am conscious of your age.  I have in determining the appropriate sentence, factored into the amount of time you need to spend in custody, all those matters and in particular those in mitigation of your sentence. 

286     I had you assessed for a Community Correction Order and received a Corrections assessment report regarding your suitability for same, prepared by Mr Temple-Camp.  You have been assessed as suitable with a number of conditions attached.  You presented as willing to and able to comply with a Community Correction Order and you did not identify any difficulties in doing so. 

287     

I am advised by my Associate, Ms Jackson, that Mr Temple-Camp had been advised of "potential" back problems, however you assured him it would not adversely impact upon your ability to successfully complete the order and comply with all conditions imposed, including a work component.  Again,

I refer to subsequent correspondence that you do not suffer an injury to your back which would prevent you from working.

288     Mr Temple-Camp was advised again at my direction of the support services currently in place to assist you in the community.  He understood that support services, with respect to housing and vocational development, could remain in place under a Community Correction Order and that your involvement in those services could be further supported through CCS supervision and case management.  I do and can direct that you continue with those services. 

289     Your involvement with YSAS could be mandated under a Community Correction Order and following you no longer being eligible for those age-specific services, substance use treatment could be implemented on the order. 

290     Ultimately I have concluded that the appropriate disposition is as follows.

291     On all Charges 1 to 4, you are going to be sentenced to an aggregate term of four months' imprisonment, which commences today. 

292     Following your release from custody, in four months' time, I propose you be subject to a Community Correction Order for a period of three years.  I have to tell you something about that order, so that you understand what it means and in particular what will happen if you breach that order in any way. 

293     There are a number of core conditions that apply to a Community Correction Order:

·You must not commit, whether in or outside Victoria, during the period of the order, an offence punishable by imprisonment.  I you do, you breach the order and you come back before me.  We will talk about that in a minute.

·You must report to and receive visits from the Secretary to the Department of Justice, or his or her nominee, during the period of the order, that is three years.

·You must report to the Community Corrections Centre at Dandenong, you will be given the adress, or you will be advised of that for when you are released, within two clear days after your release from custody.  If you do not turn up on time, you breach the order, back before me.

·You must not leave Victoria, except with the permission of the Secretary to the Department of Justice, or his or her nominee.

·You must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure you comply with the order. 

They are what we call core conditions, all of those.  They apply to everybody who is on a Community Correction Order, not just you, everyone. 

294     But there are a number of additional conditions that apply to you:

·     You have to perform 300 hours of unpaid community work over a period of 18 months, as directed by the Regional Manager (s.48C).  I just want to digress and mention at this stage, the material and your counsel have indicated that you do not have a back problem, and you have told Mr Temple-Camp you do not have any injury that would prevent you from doing work.  So the last thing you want to do is come back before me because you have not done work.  

·     You must be under the supervision of a Community Corrections officer for a period of 36 months, that is the whole time.

·You are required to be supervised, monitored and managed, as directed by the Secretary, or his or her nominee (s.48E).

·     You must undergo assessment and treatment, including testing, for drug abuse or dependency, as directed by the Regional Manager (s.48D(3)(a)).

·     You must undergo mental health assessment and treatment, including but not limited to mental health, psychological, neuropsychological and psychiatric treatment in a hospital or residential facility as directed by the Regional Manager (s.48D(3)(e).

·     You must undergo programs or courses aimed at addressing factors relating to your offending, as directed by the Regional Manager.

295     You must attend for review of your progress, so this is what we call "judicial monitoring".  You must attend for review of your progress and compliance or otherwise with all those conditions, back before me on 27 May 2016 at 9.30 am.

296     I can only impose a Community Correction Order if you agree to such an order being imposed.  So I have got to tell you even more about it. 

297     I should advise you that if you contravene or breach this order by committing further offences, you can be charged and a sentence of imprisonment is one of the options that can be imposed for that breach.  So if you breach this by committing offences, you can be sentenced to gaol for the breach, as well as the offences, put them to one side, but for the breach. 

298     You can also be re-sentenced for the offences that are before me.  In other words I would re-sentence you on the four charges that are currently before me.  One of the options available to me is a further term of imprisonment, and you can virtually count on it. 

299     Now you have got to be extra careful, basically for the next three years after release.  No committing any further offences that might incur a term of imprisonment, otherwise back before the court, back before me, re-sentenced by me, go to gaol.  I mean it is simple.  That is the way it works.  Any breaches of the order, I will be told about it, and I will then see you and deal with you.

300     I have to advise you that if you fail to comply with any direction of the Secretary to the Department of Justice, that is a Community Corrections officer, or worker if you like, as part of this order, you can also be fined.

301 Pursuant to s6AAA Sentencing Act 1991, had you pleaded not guilty to these charges and been found guilty by jury verdict, in other words if you had said, "I wasn't guilty of these charges" and you were found guilty, I would have sentenced you to 5 years' gaol, with a non-parole period of 3 years.

302     Now, before we go any further, I have to find out if you consent to the making of the order.  Now have you spoken to your client, Ms Garner?

303     MS GARNER:  I have, Your Honour.  I went through the Community Correction Order assessment outcome, recorded 21 May this year, and explained what was proposed and I was instructed by Mr Rooney that he would comply with any conditions that Your Honour sought fit to impose and confirmed again that he had no impediment to completing unpaid community work. 

304     HER HONOUR:  All right, now, so I have to ask you.  Ms Garner says, in case you did not hear her, because her back was towards you, what she said was that she has spoken to you about this Community Correction Order and you have said two things, one is that you consent to being on the order, knowing the possible remifactions or results if you breach it, and further you have advised Ms Garner there would be reason why you could not complete the work component.  They will not give you anything hard to do if you do have a back problem.  Do you follow?  They are very easy to work around whatever the issues are. 

305     Now having heard all of that, do you consent to the order being made, or not?  Nice loud voice, can you - - -

306     OFFENDER:  Yes I do, Your Honour.

307     HER HONOUR:  Yes, all right.  Was that recording?  Did you get that?  Yes, can you pick up that microphone and say "yes".  It is a bit embarrassing, I know.  It is a big court. 

308     OFFENDER:  Yes I do, Your Honour.

309     HER HONOUR:  All right, put it down, thanks very much.  All right.  All right just have a seat.

310     All right, so the formal order is, on Charges 1 to 4, an aggregate sentence of four months' imprisonment, followed by a community corrections order of three years' duration. 

311 I have also indicated the 6AAA. I am told that there is no PSD, no pre-sentence detention, and therefore, pursuant to s18(4) Sentencing Act, just for completeness, I state I do not declare any days in custody by way of pre-sentence detention. Correct, Ms Garner?

312     MS GARNER:  That is correct, Your Honour. 

313 HER HONOUR: The prosecution made application for a forensic sample, pursuant to s464ZF. Ms Garner consented to the making of the order on your behalf. I make the order on the basis of the seriousness of your offending. It will be for a saliva sample, not blood, but I must advise you, the authorities may use reasonable force in order to obtain that sample. All right? I have to tell you.

314     Now, are there any other orders?

315     MS GARNER:  No, Your Honour. 

- - -