Director of Public Prosecutions v Masset
[2017] VCC 1504
•17 October 2017
| IN THE COUNTY COURT OF VICTORIA | Revised |
AT MELBOURNE
CRIMINAL JURISDICTIONCR-17-00293
Indictment No. G12143759
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JESSIE MASSET |
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| JUDGE: | HIS HONOUR JUDGE TINNEY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 13 October 2017 |
| DATE OF SENTENCE: | 17 October 2017 |
| CASE MAY BE CITED AS: | DPP v Masset |
| MEDIUM NEUTRAL CITATION: | [2017] VCC 1504 |
REASONS FOR SENTENCE
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Subject:Conduct endangering life, attempt to pervert, criminal damage, large number of related summary offences
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms S. Holmes | Office of Public Prosecutions |
| For the Offender | Mr L Barker | Melinda Walker |
HIS HONOUR:
1Jessie Masset, on 15 August of this year, you pleaded guilty to three charges laid on the plea indictment that had then filed before me. The matter had resolved on that day and it was adjourned, really on a joint application on your counsel's application, so that he could obtain materials and be in a position to conduct the plea. But there were also some procedural matters that had to be attended to by the prosecution.
2Last Friday, so 13 October 2017, the matter came back before me and on that day, you also pleaded guilty to a number of related summary offences which had, by that stage, been filed. You admitted the criminal record which had also been filed. The maximum penalty for each offence is set out in the prosecution summary. The most serious of the offences for which I must pass sentence, are the conduct endangering life offence which is punishable by a ten year maximum term of imprisonment, and the attempt to pervert the course of justice, which is punishable by a 25 year maximum term of imprisonment.
3The matter was opened to me last Friday by the prosecutor, Ms Holmes, who appeared on behalf of the Director of Public Prosecutions. She opened the matter to me, in accordance with a detailed written opening that was dated
15 August 2017. That opening was tendered on the plea and in fact was marked as Exhibit A. No issue has been taken with any aspect of that summary and it was an agreed statement of facts and it is for that reason, I believe, unnecessary for me to repeat now in my sentencing reasons the full factual basis of sentencing in this case. I will not stray beyond the agreed facts that are set out in the summary. I will still say something briefly about the facts though.4Your counsel conceded that this was serious offending and he was correct. Charge 1 on the indictment involved a high-speed police pursuit on 25 June 2016, which may have placed other road users in danger of death. Such was the way in which you drove the car at high speed and in defiance of speed limits, control signals and common-sense. You travelled at 50 kilometres per hour over the limit, in a 70 kilometres per hour zone, and at 100 kilometres per hour in a 60 kilometres per hour zone. These were built-up areas. The speed alone was bad enough, but in the course of the pursuit, you went through a red light and overtook on double lines. You caused other vehicles to take evasive action. Why were you doing this? You were seeking to evade a marked police car that was trying to intercept you, a police car with emergency lights and a siren operating.
5The pursuit was called off, no doubt owing to the inherent danger posed to members of the public. You were, at the time of that driving, disqualified from driving, though there is no particular charge before me relating to that fact. It is just a fact. It is part of the context. You then prevailed upon your partner to falsely report the theft of that car, hence endeavouring to shield yourself from any charges being laid. That summary offence, Charge 14, relates to that conduct. So 25 June 2016 then is the first relevant date.
6The next date is the 3 August, where again, regrettably, you were driving a vehicle, again whilst disqualified. This time there is a charge for that driving whilst disqualified, as well as for the use of an unregistered motor vehicle on that occasion. Well, police saw you. They tried to intercept you, to no avail. You drove away from them, weaving through the traffic and striking or colliding with another car in doing so, and then failing to stop, going through a red light to make good your escape from the scene.
7That event then led into your conduct in attempting to pervert the course of justice, with texts being sent to your partner on that same day, asking her to report the theft of the number plates to police. The next day, you attended at her house, in breach of an intervention order, fixed different plates to the car that you had been driving and asked your partner, Ms Lock-Sexton, on
a number of occasions, to accompany you to the police to admit that she was the driver of the car in the police evasion the day before.8The texts sent by you and the requests made in person upon that visit, form the basis of the attempt to pervert the course of justice. Well she refused to do so and this then led into the setting of the criminal damage, with your entering the house as a trespasser and damaging the door. I make plain, the trespass, we are not dealing with a burglary here, there had been the aggravated burglary, but that had been withdrawn, this is a summary offence of trespass. There was at one point, a charge of aggravated burglary, with also a threat to cause serious injury. They were the trial charges, but the conduct, I believe, was sensibly broken down into a summary trespass and the criminal damage. So it was then that this matter that was listed for trial, settled In August of this year.
9For completeness, I should add that you were on bail at the time of all of these offences.
Victim Impact
10Now, there is no victim impact material filed in this case.
In Mitigation
11In a plea conducted on your behalf, Mr Barker relied upon a number of matters in mitigation. He relied chiefly upon:
·Your guilty plea and the early stage of that plea;
·The presence of remorse;
·Your horrendous family background;
·The delay;
·He argued that I should have some “guarded optimism” as to your prospects of rehabilitation, though conceded that the assessment made by the author of a report, Ms Ferrari, as to your having a low risk of
re-offence, was perhaps overstated;·He did though rely upon the report from Ms Ferrari, though made plain that none of the principles from the case of Verdins v R had any application here.
·Mr Barker made some submissions as to the relative level of gravity of the offending. He conceded, you heard him make this concession, that the offending was serious, that it merited a term of imprisonment, and that deterrence, both specific and general, as well as punishment, would be central to the court’s task.
·He argued that, as you had already served 388 days in custody in relation to this matter, at the time of the plea, that it might be open to release you upon a community corrections order, that the time for your release was nigh and that a community corrections order should be the form of release mechanism for you.
Prosecution
12Ms Holmes, who appeared on behalf of the Director of Public Prosecutions of this State, challenged that submission and argued that such an outcome would not fall within my sentencing discretion, and that a head sentence and a non-parole period should be fixed in this case. These were, after all, she argued, separate crimes committed on separate dates and some of them were serious offences.
Background
13I will deal only very briefly with your personal background, before turning to these various submissions. Your personal background has been referred to in great detail and with great care in the written and oral submissions of your counsel. It was also set out quite comprehensively in the report of Ms Ferrari. You are 30 years of age, born in December 1986. I have no reason not to accept the family background placed before me, or for that matter, your counsel’s characterisation of that background as being one of great disadvantage, so I just see no need to set it out in full in these reasons.
14The background that you had as a child was not one that any person in their right mind would choose or wish upon another. Your developing years were bereft of any sensible guidance from responsible adult figures in your life. Such examples, as were provided, were generally bad ones. At a very early stage in your life, you were exposed to drug use, to inappropriate sexuality and to offending by those whose job it was to protect and to guide you, predominantly your mother.
15Unsurprisingly in such a setting, your education suffered. It was not attended to as it should have been and you left school far too young, in Year 8.
16You were asked to leave home by your mother, for the first time when you were about 11 years of age. When at home, both prior to that point and beyond, for that matter, you received harsh discipline at her hands and really no guidance in how to live a proper life. Your mother was a person who was addicted to drugs and her example to you was lamentable really.
17It is hardly surprising that you gravitated to a negative peer group. It would seem an older negative peer group and you gravitated to drugs and to crime. You have had very much long-term problems with drugs. You have lived for very many years without much stability or support, without a real home. You have, in fact, held down work more often than would be the case, given this background, with, it would seem, the last long-term job, seemingly in about 2010 and I refer to the Regen report.
18You have been a talented sportsman. You excelled at football. Another positive is the relationship that you have with your younger brother, who is about ten years of age. He seems to have been rescued from the sort of life that you were raised into and you are protective of him and in a way, ashamed of having let him down by your offending. You spoke glowingly of him in your police interview, so he is obviously a good influence and you worry about the example that you have displayed. However, be that as it may, he has not really put a great brake on your offending over the years. There have been many appearances since his birth ten years ago.
19You have a quite lengthy criminal history. Mr Barker did not take me to that in any great detail. He was not shying away from it, or suggesting that it was irrelevant. There was really no need for him to go into it chapter and verse. There would be no point in doing that. That criminal record demonstrates that you have committed offences of varying degrees of seriousness over very many years now and that you have seldom fully taken the opportunities offered by non-custodial dispositions imposed at court. A number of community based dispositions have been breached, though I take the point, you have, seemingly put in some effort to comply with the terms of those orders. You have typically breached them by offence and not otherwise by non-compliance.
20There have been some steps taken by you towards rehabilitation from time to time, including a period of time spent at the Warrakoo rehabilitation centre up near Mildura, as well as engagement with the CISP program and the various supports engaged via that program, as many of the exhibits placed before me make plain. Now as to that CISP involvement, of course that followed on from the laying of some charges against you. You entered that program in, as far as I can see, late-2015 and you did really very well indeed, as the author of the report makes clear in her report, dated 21 March 2016. You completed the program, which is not that common, I can tell you. However, within a relatively short space of time, the wheels had started to fall off with a job that you believed you would be getting, falling though, accommodation and relationship issues emerging, your lapsing into drug use and then of course this various offending. You went into custody on 4 August 2016.
21Now to complete the picture, since being in custody, I guess you had choices. You could do nothing and rest on your hands and wait for your release, or you could do what you could do to improve your position and you have chosen that latter position, which is very wise. You have done virtually every course or program that you could to maximise your chances upon release. You would hope to be released onto a community corrections order, to live with your father up in Whittlesea and your father, again, is present in court today.
22Now I do not suggest that I have set out every salient feature of the history that has been placed before me, or your background. I do not think I need to. There is just no question in my mind that you have had very significant social disadvantage in your early developing years and beyond, such as to reduce your moral culpability and to call in aid those principles referred to in the cases to which I was referred, such as Bugmy and Marrah. Your background is not something that can just be shrugged off by you. It is not that easy. Those impacts that have been brought about by that dysfunction, well they do not just diminish with the passage of time. Your background cannot be ignored by this court, as I am sentencing the person in the dock, that is, you and this is your background and that is something I must pay regard to. So I do give real weight to what I judge to be your greatly disadvantaged background, in accordance with those cases that I have been taken to and the submissions placed before me by Mr Barker.
Guilty plea
23I turn then to some of the other matters in mitigation and the first of those is your guilty plea. You have pleaded guilty and at what I will treat as the very earliest stage. Now, the matter had been listed for trial, as I have made plain, but that trial was to be held in relation to the two charges which did not proceed, that is, the aggravated burglary and the threat to seriously injure. You were always pleading guilty to the various other matters before me and had offered to do so at the committal. Though you were committed to stand trial, the Director ultimately chose not to proceed with those matters and it settled in the way that I have described. Appropriately so, if I may say so.
24So I take into account the fact of your guilty plea and the early stage of that plea and I reward you for that stance. You have facilitated the course of justice. Witnesses have been spared the experience of coming to this court to give evidence at trial. You have accepted responsibility for your crimes and so the community has been saved the time, the cost and the effort associated with
a trial in this court. But for your guilty plea, I would have imposed a more significant term upon you. You have also pleaded guilty to the criminal damage charge and the summary offence of trespass, in a setting where the Crown were experiencing quite some difficulties securing the attendance of the relevant witnesses, who were not too co-operative. You also had made admissions to the police in your interview and I take into account your co-operative attitude with the police as well.Remorse
25I turn the to the issue of remorse. I have, in this case then, your guilty plea and what I judge to be one at the earliest of stages. Well an early guilty plea is ordinarily, but not always, an indication of at least some remorse. There is also mention in the report of Ms Ferrari as to the presence of remorse. I also have your interview and your letter of apology.
26Well having read all of that material, I have not the slightest sense of your sitting down there revelling in this offending. Indeed, having read the interview, there is a strong theme in that of your being very disappointed in yourself, frustrated at having squandered the positive developments that had occurred in your life leading up to the time of offending and having let down yourself and others. You recognised the gains that you have made on the CISP program and the fact that they had been, to some extent, dashed by your own criminal conduct.
27I am prepared to find the existence of actual remorse in this case and I do take that into account in mitigation, as your counsel urges me to.
Delay
28I turn to the delay. This had been raised in the written outline in a certain manner and really I took your counsel, in his oral submissions, as retreating slightly from the manner in which it had had been so addressed in the written outline. I believe it had been overstated, to a degree, in the written outline. After all, the offending that I am dealing with occurred in June and August of last year. A committal was conducted in February of this year. It is not a massive delay here and is explicable, by virtue of the course of the matter going for trial. It was never as simple as these matters all being dealt with in the Magistrates’ Court, by way of a plea, as there was not even jurisdiction for the attempt to pervert to be heard.
29Now the delay is nowhere near as sizeable as that existing in the case to which I was referred, the case of Miceli, nor is it a delay with no explanation, or owing to some leisurely attitude adopted by the police to the investigation or the way the matter was prosecuted, or both. The fact is, you were charged in a timely fashion, the matter went for committal in a timely manner, you were committed for trial and it resolved at trial. Nor have you been free in the community in the period of the delay, demonstrating ongoing rehabilitation and an ability to remain offence-free in that testing setting. Instead, you have been held in custody and for a portion of that period, of course, you have been undergoing another sentence. However, in that period, though it is a period in custody, you have done everything asked of you to try to improve your chances upon release. So that is something I am entitled to have regard to, in terms of making judgments about your rehabilitation. No doubt, also, the matter being over your head has been difficult and Ms Ferrari comments on that aspect in her report.
30I accept that it has been unsettling for you, awaiting the conclusion of the matter and that you have exhibited some positive signs whilst in custody in the course of the delay that I am entitled to have regard to. So I do accept your counsel’s oral submissions in this regard. I do not believe the delay is a massive matter in mitigation, but I do pay regard to it in the mitigatory ways I have identified.
Rehabilitation
31I turn then to the issue of rehabilitation. As to your rehabilitation, what then are your prospects? It would be easy enough, I suppose, to look at your age, to look at your relatively long criminal history and the long-term struggles that you have had with drugs, and the nature and the chronology of this offending and really to write off your prospects of rehabilitation. But that would not be doing justice to you.
32Now I cannot just ignore your criminal history and obviously enough, there is a strong role for specific deterrence here, as is conceded. But your interview, which I commented upon a moment ago, is an interesting account. You were expressing dismay as to how your life had tipped back in the wrong direction, following on from the gains that you had made in the lead-up to this offending. This, from a man who had very evidently made real efforts on the CISP program. You have gone on to take such steps as you can to maximise your chances upon release from custody, by doing all of the courses and programs that you have done. It is clear to me that when I have regard to all this material, you have no enjoyment of living a criminal existence. You are not revelling in it and wish not to live your life in this way in the future. Well that is a big positive. It is more than a start. You have failed to take many chances offered to you by the courts, so much is plain enough.
33You have committed these offences, some of them serious, and the chronology of this offending is none too pleasing, your offending seriously in June 2016, offending again in August 2016 and all of it whilst on bail. You are 30 years of age and whilst I have taken into account in a mitigatory manner your background, well that background is not a feature which will simply evaporate or dissolve. It stays with you and it does inform, to some degree, your choices and your conduct. You have very little by way of support in the community, but I sense that you wish to live a stable and useful life.
34You have long-term issues with drugs, but they probably connect up with aspects of your early background and the complete absence of any valuable examples from your caregivers in your early days. You have had periods where you have been gainfully employed. Staying out of trouble for you is not so simple. If you continue to use drugs, you will have no prospects of rehabilitation at all. What you need to do, is to desist totally from drug use. You need to find employment. You need stable accommodation, something that many of us take for granted, but which has been so elusive for you over many years.
35I sense that you are not beyond the point where you can change and as I say, I am satisfied that you desire to change, which is more than a very good start indeed. You have displayed some commitment to change your life. You have some insight as to the need for change. Now I do not accept for one moment Ms Ferrari’s assessment as to your posing a low risk of recidivism. That simply ignores all the realities of the history and the chronology I have spoken of
a moment ago. Nor though do I reach a bleak and dark assessment in your case. I can only be quite guarded at this point. But I am prepared to find that you do have some realistic prospects of rehabilitation. You want to change,
I am satisfied of that. You have exhibited an ability to comply over the course of the CISP bail and some of the prior community corrections orders.36I cannot be overly optimistic. I have no reason to be and as I have said, the fact is, if you use drugs or continue to associate even with other drug users, your prospects of rehabilitation will plummet. But I am prepared to find that you do have quite realistic or genuine prospects of rehabilitation and I do hope that you can change your life. I hope you can succeed. I suspect that you have within you the makings of a decent person, despite your background and you do have a desire to improve your condition, I am confident of that. The test, of course, will come, as it always has, upon your release from custody.
Ms Ferrari
37I take into account the report of Ms Ferrari, but not as in any way engaging any of the principles from the case you heard discussed of Verdins v R. Mr Barker made plain that those principles were in no way relied upon or engaged here and no doubt that concession correct.The report is still of use, setting out as it does, your background and the various aspects of your personality and functioning. It sets out and comments upon your desire for change and your level of insight into the things you must do in the future and the things that you must avoid. I think you clearly need some long-term counselling and treatment. You need to deal with some of those demons from your past.
38Your counsel conceded that perhaps there was a level of overstatement in that report, in terms of the low level of risk of re-offence spoken of, but I do take that report into account in your favour. Indeed, if I have not made this plain, I do not think I have, I do so now. I have taken into account all of the matters that have been raised on your behalf. I have not descended to the detail of much of the written material and I see no need to, but I assure you I have had regard to the entirety of the materials placed before me, including your written apology.
General remarks
39I turn then to make some general remarks, before passing the sentences in this case. Sentencing involves, as I am sure you understand, the balancing of
a number of purposes or principles. I am required to manifest this court's denunciation of your criminal conduct and I do. What you did was serious criminal conduct. Your counsel concedes that that is so and you recognise that you have acted badly. Your conduct is deserving of strong denunciation by this court and I denounce it. I must also punish you for your crimes, though I must do that justly and proportionately.40I am required to consider the need to deter or dissuade, if you like, you, as well as others from committing these sorts of offences in the future. I am also required also to consider the protection of the community as a purpose of sentencing.
41So I have all these purposes of sentencing, including the need to recognise your prospects of rehabilitation. I have to take into account your prospects of rehabilitation and your risk of re-offence. I cannot precisely quantify the risks that you pose into the future. How can anyone sitting in my position know what the future holds for any person? I have already expressed my views as to your prospects of rehabilitation and it is not all doom and gloom, not by a long shot. I have expressed a guarded view, but I see enough to know that you do have realistic prospects of rehabilitation. It will be up to you. So much will depend on choices that you make upon your eventual release from prison.
42However, there is a clear need to deter you from future offending and your counsel concedes that. You are not some 19 year old first offender. You have a relatively lengthy enough criminal history. You have committed a number of offences in the past that have relevance to my task. You have, for instance, a number of prior appearances for dangerous driving. You have prior appearances for crimes of violence, of dishonesty and driving matters, including failure to stop. You have not abided by many court orders and you have continued to offend, in this instance whilst on bail and after the close support that had been engaged by the CISP program.
43So it is obvious that specific deterrence is a significant sentencing purpose and so too, I am afraid, is community protection, especially in terms of the driving conduct. You had no business being behind the wheel of any car, much less driving in the outrageous and dangerous manner that you did on the 25 June of last year. If you continue engaging in that sort of conduct, you will eventually kill yourself, or kill others, or both. So you must be deterred from any repetition of that conduct. You backed it up with further driving whilst disqualified and failure to stop in August of the same year. So it is obvious that I must give some weight to the protection of the community as well in this case.
44General deterrence is also a very significant purpose of sentencing in a case such as this. That is, the need to deter others from such conduct. I am required to send a message, a loud and clear one, actually, to others who might be minded to commit these sorts of offences, especially the conduct endangering and the attempt to pervert the course of justice.
Nature and gravity
45I have to pay regard to the nature and the gravity of the particular offences that are charged before me. Your counsel had conceded the seriousness of some of the offences. The driving on the 25 June of last year, well it placed members of the public potentially in danger of death. It is that simple. The police discontinued the pursuit to protect others. You then insisted that your partner make a false report to the police to protect you.
46The attempt to pervert relating to the 3 August driving, though not in any way sophisticated or elaborate, was again designed to avoid your own liability for
a crime that you had committed. You were not acting to assist another person. It was you, your crime committed by you which you sought to bury in the misinformation you counselled your partner to provide as to the stolen number plates. That was bad enough, but it went to a new level when the next day you visited her home in breach of the intervention order and sought to encourage her to come with you to the police station to admit her own guilt of your crime. The attempt to pervert the course of justice is a serious offence, though it is
a long way from the highest level of seriousness, but it was no minor crime, make no mistake.47You had, on the earlier occasion in June, had her make a false report for the same sort of purpose, avoidance of your own criminal liability. This was serious conduct, though I do accept that there was a level of spontaneity in your conduct. These are not deeply thought out crimes, any of them. There is an impulsivity, in the sense that the conduct endangering life conduct, that is the driving on 25 June, flows, no doubt, from the panic at being captured behind the wheel of a car.
48The false report and the attempt to pervert, no doubt, connect up to your fear of being charged and going back to prison. So these are very much reactive crimes, reactive though to factual settings that should never have been created by you in the first place. There is some reduction in culpability, owing to the disadvantaged background that I have spoken of earlier in these reasons. But the importance of general and specific deterrence, community protection and punishment is plain enough here. But I cannot overlook your disadvantaged background, or the signs and hints that rehabilitation is a realistic outcome here.
Totality
49I have given consideration to the overall effect of the sentences imposed by me and I have looked, for a last time, at the overall effect, to ensure that it is consistent with your overall criminality and not crushing upon you.
Current sentencing practice
50I have regard, as I am required to, to current sentencing practices, but the fact is that no two cases, nor two offenders are ever the same. What I have got to do, is pass appropriate sentences in your case for your crimes.
Boulton
51Your counsel conceded that a term of imprisonment was warranted, but argued that it was open to place you on a community corrections order, given the period you have been in custody to date. That was 388 days, up to but not including Friday of last week, but longer all up when consideration was given, as it must be, in a Renzella type fashion to the other period where you have been held above that period. It had been something like 435 days all up, leading up to that plea date. You have been continuously in custody since 4 August 2016 and I take into account, as I have said I would, the Renzella days, not specifically covered by the s.18 declaration that I will make.
52Sending any person to prison is a matter of last resort for any court. It always has been. It hope it always will be.
53I was taken to the case of Boulton v The Queen. It was a decision which told judges in this State that it will be open sometimes to place a person on
a community corrections order, even for offending that previously would have been visited with a substantial or medium term of imprisonment. Well there has been much water under the bridge since that decision in December 2014. There have been suggestions from other members of the Court of Appeal that the community corrections order disposition was being misused by judges, that judges were unduly focussing on that disposition selecting it and then working out a path to that end outcome. See the decision of Basic. Our Parliament has responded by amending the legislation and limiting and altering the use of the disposition.54Nonetheless, s.5(4C) of the Sentencing Act prohibits the imposition of
a sentence of confinement, unless a court concludes that the purposes of sentence cannot be achieved by a community corrections order, to which specified conditions are attached. So a court needs to pay careful attention, obviously, to the purposes for which sentence is to be imposed and to consider whether they can actually be achieved by a community corrections order, either standing alone or one in combination with a term of imprisonment. There are some crimes that are just too serious, that is the reality.Sentence
55I have no doubt at all that it is not open in the sound exercise of my discretion to place you on a community corrections order, even in conjunction with a term of imprisonment. One can almost always see some advantages in the community corrections order disposition, but I have to pass appropriate sentences, not just steer a path towards a community corrections order. You have had such dispositions in the past and they have had limited success. You have committed these crimes, some of them serious indeed, whilst on bail and shortly after the very intensive support offered by the CISP program. I just do not believe that it is open to structure a sentence which permits a community corrections order disposition. It would not give adequate weight to the various purposes of sentencing, even if used in combination with the term of imprisonment available to me.
56I believe it is appropriate to pass sentences of imprisonment for the individual offences before me, make orders as to the extent of cumulation and reach
a head sentence in this way and then fix a non parole period. At each stage of that process, I can tell you, I will pay regard to the mitigatory matters that have been raised on your behalf by Mr Barker in his excellent plea and I will fix
a non-parole period, which I hope will give you some hope for the future. It will permit your possible release in the not too distant future. Whether you will be released on parole, I cannot say. I cannot even speculate in that area. See s.5(2AA). But I am fixing a relatively low non-parole period which may foster your rehabilitation, if you are so released on parole.57As to cumulation between individual charges, well this was not a set of offences committed on a single occasion. There are separate crimes committed on separate days. There is a relationship, of course, between some of the offences. It is obvious enough that there must be some cumulation, but equally obvious that I must pay regard to the principle of totality here, which I do.
Disposal order
58There is a disposal order which is sought. Let me just look at that. That order is not opposed to. It relates, Mr Masset, to the tomahawk, or the hatchet and there is no issue taken with the disposal of that object.
59I order, pursuant to s.78 of the Confiscation Act, I am satisfied the property was used in or in connection with the offences before me, or some of them at least, and I order, pursuant to s.78 of the Confiscation Act, the forfeiture to the State of the property. I direct it be handled in the way contemplated by the order, which I have signed. Yes, all right, so I have signed that order.
60Now I am going to pass sentence, Mr Masset, and it will become clear to you at the end. I will explain the relationship between the sentences and what it really means, by way of a total effective sentence. So do not just be adding all these things up together and approach it in that way. That is not what I am doing here.
Sentence;
Firstly the charges on the indictment.
61On Charge 1 on the indictment, which is the conduct endangering life, I convict and sentence you to 21 months' imprisonment. That is the base sentence.
62On Charge 2, with is the attempt to pervert the course of justice, I convict and sentence you to ten months' imprisonment.
63On Charge 3, criminal damage, I convict and sentence you to one months’ imprisonment.
Moving to the summary matters.
64On Charge 4, which is the breach of the family violence order, I convict and sentence you to 14 days' imprisonment.
65Charge 5 is the fraudulent use of number plates, I convict and sentence you to seven days' imprisonment.
66Charge 6 is the failure to stop, or the evading police (each term is employed)
I convict and sentence you to three months' imprisonment.67Charge 7, drive whilst disqualified, I convict and sentence you to two months' imprisonment
68Charge 8, unregistered motor vehicle; Charge 9, fail to render assistance; and Charge 10, fail to stop at red light, in relation to those three charges, I convict you and impose an aggregate fine of $750.
69On Charge 14, making a false report to police, I convict and sentence you to three months' imprisonment.
70On Charge 15, committing an offence on bail, I convict and sentence you to seven days' imprisonment.
71Finally on Charge 16, the trespass, I convict and sentence you to seven days' imprisonment.
Cumulation
72So the base sentence is the one I imposed on the conduct endangering life charge, which is the 21 months.
73I make the following orders for cumulation. I direct that five months of the sentence imposed on Charge 2 on the indictment, the attempting to pervert the course of justice; two months of the sentence imposed on the summary offence of failure to stop, that is Charge 6; and two months of the sentence imposed on Summary Offence 14 of making a false report, that those periods be served cumulatively upon the base sentence and upon each other. All the other sentences are to be served concurrently.
Total effective sentence
74What does this result in then? It results in a total effective sentence of
30 months, or two and a half years' imprisonment, all right?Non-parole period
75Now, I fix a period of 15 months, during which you will not be eligible for release on parole.
Section 18
76You have spent a large portion of that period already. You have spent already 392 days in custody by way of pre-sentence detention. You have already served 392, in other words, pursuant to this sentence, and that is to be noted in the court records, pursuant to s.18 of the Sentencing Act.
Section 6AAA
77I have told you that I have taken into account the fact of your guilty plea. Had you pleaded not guilty and been found guilty following a contested hearing in relation to these various charges, I would have imposed a three year and nine month term of imprisonment. I would have fixed a non-parole period of two years and four months.
Licence orders
78The only other matter I need to deal with, as I perceive it, is the licence order here. The only charge with a mandatory licence order is Charge 6, which is the charge of failing to stop, or evading police. Given your history, it is a subsequent offence and it is agreed by your counsel that, upon conviction, that it carries
a mandatory minimum disqualification of 12 months. I will not exceed that mandatory minimum period in your case. The issue, though, is when the disqualification ought start. I am going to, in relation to that matter, make an order against licences. All licences are cancelled. You are disqualified from
12 months and I am going to commence that from today's date.79Now, there is no mandatory requirement to make any licence order on the conduct endangering charge, but I believe that an order is appropriate. I am very much conscious of the fact that having a licence to drive in the future will be an asset for you in the employment stakes, upon your release from prison, whenever that might be, and that it may well have then a role to play in your future rehabilitation. So I shy away from a very lengthy order, as such an order, though it might appear to serve to protect the public, may in fact do otherwise, in fact, by weakening your prospects of employment and hence weakening your future prospects of rehabilitation. However, the conduct endangering life was a serious crime, directly connected with the driving of a motor car by you and
I believe it is necessary for me to make an order against your licence. So on Charge 1 on the indictment, that is the conduct endangering life, all licences are cancelled and you are disqualified from obtaining another licence, or from driving in this State for a period of 12 months.80Again, I am making that from today's date. I have considered whether it is appropriate to link the disqualification to some later event, such as your release from prison, because it is possible that the orders that I am pronouncing, may have no real effect upon you, if you happen not to be out in the community. So I have considered whether the commencement should be deferred to some point later down the track, but for the reasons I have already announced,
I believe that when regard is had to your rehabilitation, it is not appropriate to defer these orders. You have served and are continuing to serve the longest sentence that you have ever served in the past.81You will be released at some point in the future, I know that. As to when, I do not know, but I do know that the ability to have a licence upon your release, whenever it may be, will be a very significant feature for you in the employment market and I do not want to queer your prospects of rehabilitation by having an order stretching out deep into the future. So, it is for those reasons that I am tailoring the disqualification orders in the way that I am and starting them as of today's date. All right?
82Let me just - grab a seat then for a moment. Let me just see if there are any other matters that I need to deal with. Firstly, Mr Barker, Ms Holmes, did you - I rattled off the various numbers, in terms of sentence - - -
83MR BARKER: You mathematics was the same as mine, Your Honour.
84HIS HONOUR: The maths works?
85MR BARKER: Yes.
86MS HOLMES: Yes, Your Honour.
87HIS HONOUR: All right. And the non-parole period, as I say, is 15 months.
I have declared the 392 days and I have made those orders, in terms of licence.88Is there any other matter I need to deal with then at all ?
89MR BARKER: No, Your Honour.
90MS HOLMES: No, Your Honour.
91HIS HONOUR: No, all right. Well thanks very much each of you for your efforts.
92MR BARKER: Your Honour, just before you leave the Bench. I need to get down before Judge Bourke. May I approach my client briefly now?
93HIS HONOUR: Of course you can, yes.
94MR BARKER: Thank you. Thank you, Your Honour.
95
HIS HONOUR: All right. All right, well look, that completes the matter then,
Mr Masset, so good luck in the future.
96OFFENDER: Thank you, Your Honour.
97HIS HONOUR: I hope you can press ahead with some of those positive signs that you displayed in the course of the CISP program, all right?
98OFFENDER: Thank you, Your Honour.
99HIS HONOUR: All right. So yes, Mr Masset can be removed. Thank you.
100I will just leave the Bench briefly. I will come back on in a second, once everyone has reconvened and I will do the appeal call-over. Yes, thank you.
101MR BARKER: You will excuse us, though, Your Honour?
102HIS HONOUR: Yes, of course.
103MR BARKER: Thank you.
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