Director of Public Prosecutions v McCarthy
[2014] VCC 1912
•13 November 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-14-01517
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HAYDN McCARTHY |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 November 2014 | |
DATE OF SENTENCE: | 13 November 2014 | |
CASE MAY BE CITED AS: | DPP v McCarthy | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1912 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr M. Roper | Office of Public Prosecutions |
| For the Accused | Mr T. Vriends | Michael Kelly & Co |
HER HONOUR:
1 Haydn Kevin McCarthy, you have pleaded guilty to one charge of attempted aggravated burglary and one charge of making threats to kill. The maximum penalty applicable to the charge of attempted aggravated burglary is 20 years' imprisonment and making a threat to kill, ten years' imprisonment.
2 These offences arise out of events which took place in the early hours of 19 March 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. 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.
3 It is sufficient for present purposes to simply say the facts in this case are most serious.
4 I turn to a summary of your offending.
5 At the time of this offending, you were 43 years of age and are 43 at time of sentence. The victim of your offending is your former wife, Joanne Thompson, who was then living at 19 Gladman Street, Greensborough with her partner, Jamie Salerno and your four children, Luke, 18 years of age, Amy, Sean and Daniel, ten years of age.
6 In the lead up to your offending there had been acrimonious text messages exchanged between yourself and Ms Thompson regarding access to the children (see depositions pp.73-81). There were no Intervention orders in place at the time of your offending.
7 On 18 March 2014, Ms Thompson and Mr Salerno had been out to dinner with the children, celebrating Luke’s 18th birthday. At dinner, you texted Ms Thompson asking for Luke’s mobile number. She provided you with the number and you sent a text to Luke. For reasons that are unclear, Luke decided to stay with his aunt in Macleod for the evening rather than at the family home.
8 A few hours later on Wednesday, 19 March, you drove to Ms Thompson’s home and parked your car in the driveway at about 1.30am. By that time, Ms Thompson, her partner and the other three children were at home and in bed.
9 You were in an aggressive and intoxicated state and smashed one of the front bedroom windows. Ms Thompson and Mr Salerno woke to the sounds of the breaking glass. Ms Thompson heard you yelling “Come outside you fucking wog” and “I'm going to stab you with these keys in my hand.” You then smashed a second bedroom window.
10 Ms Thompson and Mr Salerno got out of bed, went to the hall and stood behind the front door. Mr Salerno dialled “000”. As he did that, you yelled “Yeah, that’d be right, wog. Ring the coppers to save you.”
11 You then banged on the door and Mr Salerno leaned against it to prevent it opening. You smashed the window next to the front door, reached inside, grabbing at both Ms Thompson and at the front door knob (Charge 1 attempted aggravated burglary).
12 Ms Thompson picked up a metal jewellery stand and hit your hand with it. She was terrified you were going to come and hurt them or the children. Whilst she was doing this, you continued yelling “Come outside you fucking wog … I'll kill you … you can come out here too, bitch”, (Charge 2 threat to kill).
13 The noise woke 10 year old Daniel McCarthy who came into the hall and asked if you were outside. He was tearful and visibly frightened.
14 Police arrived a short time later and you were placed under arrest. There was a large amount of blood at the front of the house and on you. As a result of smashing the two windows at the front of the house as you tried to gain access, you severed the tip of your right hand little finger and were taken to the Austin Hospital for surgery.
15 You were bailed, without being interviewed, to attend court on 26 May 2014. An Interim Intervention order was taken out on the night of the incident and remains in force until 21 March 2015.
16 There are Victim Impact Statements before me to which I shall later refer. Suffice to say, the victims of your offending have suffered considerably.
17 As has been pointed out by your counsel, there are some mitigating factors.
18 You have pleaded guilty to these two charges and you are entitled to have that fact taken into account in your favour and I do so. The community, by your pleas of guilty, has been spared the time and cost of a trial and witnesses, including your children, have been spared the need to give evidence upon your trial.
19 I note you were charged with these offences on 26 May 2014. There was a filing hearing on 2 July 2014, then at the committal case conference on 26 August 2014 you entered pleas of guilty to these charges and the matter proceeded by way of straight hand-up brief.
20 I accept in the circumstances your plea of guilty indicates remorse for your offending, and I also note the early stage at which your pleas of guilty were entered.
21 You have a number of prior court appearances which you have admitted, your most recent court appearance on 2 February 1994 when you were before the court on charges of criminal damage, assault by kicking, using indecent language in a public place, drunk in a public place and two charges of resisting police or person assisting police. You were sentenced to two months' imprisonment suspended for 12 months and also placed on a Community-Based order for 12 months.
22 Prior to that you appeared at Melbourne Magistrates’ Court on 5 May 1993 on a charge of wilfully damaging property, offensive behaviour, two charges of assault police and resisting police or person assisting police, for which you were convicted and fined. Prior to that, you had three court appearances from 1990 through to 1991 for offences of using a drug of dependence, indecent language and offensive behaviour, for which you were fined.
23 I note that you have not appeared at court since your appearance on 2 February 1994. Whilst some of your prior offending is relevant, in that it involves a similar type of behaviour (ie: ‘aggressive’) to that before me, I note such was not the same charges as that presently before me. You have not appeared in court in the past approximately 20 years.
24 I also note there is nothing subsequent alleged or pending. In particular I note regarding your prior offending, as I have said, it is dated and that between 1994 and this current offending, I am very well aware you had led an otherwise law-abiding life.
25 I note consistent with the submissions by Mr Vriends you did not have any weapons with you when you attended at the home.
26 Mr Vriends, who appeared on your behalf, described how your offending occurred on this evening, based on your instructions. You had not had any contact with your children since approximately Christmas 2013 but became aware when your son Luke turned 18 that you were not to be part of those celebrations. I can understand you being upset about that, however your response to this, as you know, was totally inappropriate. On that night you consumed what Mr Vriends described as “excessive alcohol” and made the spontaneous decision to attend the property.
27 I discussed with Mr Vriends your instructions that when you attended at the house you simply wanted Mr Salerno to come outside. I discussed with Mr Vriends, however, the circumstances of your attendance, as set out in the prosecution opening. Specifically your first action was to break a window and only after that call out to Mr Salerno. Your scenario, in my opinion, was not consistent with the order of events in the prosecution opening.
28 Mr Vriends relied upon your subsequent attendance with Mr Johnson for counselling to address your anger and alcohol consumption and submitted that in the future you said you would react appropriately if the same situation arose.
29 Mr Vriends confirmed your son, Luke, had since August 2014 been living with you, and that you assisted Luke to find employment at your workplace. You travel to and from work together. Following your plea hearing I received correspondence from James Cardow, State Manager, F Mayer Melbourne dated 6 November 2014. He confirmed your employment as Storeman with the company since March 2011. You are also a member of the Occupational Health & Safety Committee.
30 He was surprised to hear of the charges as that behaviour was inconsistent with your work behaviour. You had expressed to Mr Cardow your regret at your offending, how it had affected your personal and professional career. You told him you were seeing a psychologist to help with stress and anger management.
31 Since 2 September 2014, your son, Luke, had been employed at F Mayer as a storeman. Luke was considered to be a valuable member of the team. Luke did not have a licence and was dependent upon you to drive him to work. His company valued both Luke’s and your contribution to the business.
32 Your instructions were and confirmed by your son, Luke, you did not drink alcohol during the working week and on weekends you might have two drinks on any given day. There were no occasions when Luke had seen you intoxicated. You did not know where your ex-partner or your other children were living and neither did Luke. You had not attempted to locate Ms Thompson or the other children. Despite that, I note in the documents produced today that you have been maintaining your payments in relation to maintenance of the children.
33 In court to support you at your plea hearing were your parents and Luke.
34 Mr Vriends set out your work history and I accept you have had stable employment, albeit a number of jobs over the years. You have been with your current employer since 2011, working five days a week. I note the positive relationship you seem to have with Luke and that such is likely to assist your rehabilitation prospects.
35 Mr Vriends also submitted you suffered a significant injury to the little finger of your right hand and that such had required surgery and continued to cause you some difficulty. Relevant to that was a report from Austin Health Acute Services, dated 25 October 2014 relevant to the injury to your finger. On 19 March 2014 you underwent operative management on your hand and lacerations were then repaired. You returned on 21 March 2014 to see plastic surgeons and in the interim there was regular hand therapy with passive mobility. You further saw the plastic surgeon on 7 April 2014 and 19 May 2014 as you were having difficulty in relation to your little finger. Your most recent attendance was on 25 August 2014 with ongoing difficulties with your little finger.
36 I accept that you have sustained permanent injury to your little finger as a result of your offending and such is relevant and consistent with R v Barci & Asling[1].
[1] [1994] VSCA 3
37 Mr Roper, who appeared on behalf of the prosecution, subsequent to your plea hearing and at my request, forwarded further authorities in this regard and I have read out the contents of the email.
38 In Pasznyk v The Queen[2], Priest JA referred to the relevance of injuries to the appellant in that case (see para 72). See also Howden v The Queen[3] which I have also read.
[2] [2014] VSCA 87
[3] [2012] VSCA 281
39 I accept some allowance can be made in your case for the injury suffered by you in the course of committing the offences before me as constituting ‘extra-curial punishment’.
40 There was a report before me from Mr Patrick Newton, Clinical and Forensic Psychologist, dated 29 October 2014. Mr Newton provided further details of your background and history.
41 You are the second of three children and you described your family as “close-knit”. Discipline within the family was relatively strict but was not “abusive”. Your sister died in 2003. You continued to enjoy reasonable relationships with your parents and brother.
42 You attended a local primary school in Ashburton, then attended Swinburne Technical College, completing Year 11, leaving school to undertake a cadetship with a supermarket. You did not, however, remain very long in that employment.
43 You had not completed an apprenticeship or any other vocational studies, rather had worked primarily as a process worker, labourer and storeman. You described your work history, however, as “stable”.
44 Your only significant relationship has been with your ex-wife, Ms Thompson, and with four children of that marriage. Since this offending you reported you had not had any visitation with your three younger children and that was confirmed in your instructions to Mr Vriends.
45 You separated from Ms Thompson in late 2012. However difficulties arose when she “began dating” one of her ex-es, almost straight away. Thereafter acrimonious text messages were exchanged, which became increasingly distressing. I note the sending of texts was a two-sided process.
46 The dispute between yourself and Ms Thompson, you explained, reached its “apogee” on the weekend of Luke’s birthday and it was in that context your offending occurred.
47 Regarding your substance use history, you said you began consuming alcohol from when you were about 17. You had, however, reduced your consumption considerably about ten years ago, now mostly drinking on weekends. You instructed it was rare for you now to become intoxicated. On the night of this offending, however, you said you had consumed “two or three wines, maybe a bottle”, describing yourself as affected by alcohol but not drunk. You said you knew what was going on and what you were doing.
48 You reported a history of consumption of marijuana from age 18 to 40, but denied any habitual or compulsive use. You were not under the influence of cannabis when you offended.
49 You denied any history of psychological or psychiatric difficulty, although said you found separation from Ms Thompson difficult, with feelings of grief, sadness and anger. You were also concerned for the children’s wellbeing and future.
50 Since your offending, you had attended with David Johnson, Psychologist, for counselling since July 2014, focusing on managing emotional awareness and improving your anger management skills. You were not prescribed any medication.
51 Regarding your offending, at the time of interview, you were not experiencing symptoms of depression or manifesting any symptoms of psychological disorder.
52 Regarding alcohol consumption, Mr Newton noted your report of current decreased alcohol use, although he remained concerned by several aspects of your drinking, including your tendency to resort to alcohol as a means of “managing” emotional and psychological issues. This would likely intensify your depression, increase your anxiety and disinhibit your anger. Further your insight into issues such as safe drinking practices, harm minimisation and other issues associated with alcohol consumption was, in Mr Newton’s opinion, under-developed. He suggested it would be prudent for you to reduce your drinking further and continue to discuss your alcohol consumption with your psychologist. I agree.
53 Regarding your anger management issues, Mr Newton noted your level of emotional awareness was comparatively poor, which meant as a result it was hard for your to understand the processes associated with your anger. It was more difficult for you to exercise effective control over your alcohol, especially in emotionally charged situations. Another area of concern was your rigidly assertive stance in conflicted situations. You were a person of “strong opinions and views”, and unlikely to “back down” or compromise in the face of disagreement.
54 In the opinion of Mr Newton, continued counselling in respect to both alcohol and anger management issues would be of benefit to you. I agree.
55 Mr Newton noted, as do I, given your lack of relevant prior criminal history, it is only in the realm of intimate relationships, that issues of anger and substance abuse became concerning.
56 In conclusion, Mr Newton stated your mental status was essentially normal. You expressed regret for your offending. In his opinion you were not suffering from any form of mental disorder. Your intelligence was estimated to fall at the lower end of the normal range. It was positive that you had reduced your alcohol consumption significantly from when you were 20 and 30 years of age. You would, however, he said, benefit from further reduction in your alcohol consumption, particularly as you tend to resort to alcohol as a means of managing emotional challenges. You had, he said, relatively poor insight into issues with alcohol consumption. He did not consider you warranted a diagnosis of an alcohol-related disorder.
57 Your anger management problems, he opined, would be intensified if you were under the influence of alcohol and as such you would benefit from continued counselling.
58 Mr Newton noted you were motivated to continue treatment and as a result there was guarded optimism regarding your prospects.
59 There was a also report before me from Mr David Johnson, Psychologist, dated 30 October 2014. He said you had presented voluntarily for counselling on 3 July 2014 to address in particular management of stress and anger. You had attended a number of sessions and had participated in counselling relevant to anger and stress management.
60 Mr Johnston described you as a co-operative and willing participant in counselling. You had developed insight into factors of your stress and anger.
61 Mr Vriends urged that your offending, which occurred on your son’s 18th birthday, was a “unique and singular set of circumstances” and had followed an exchange of text messages between the victims and yourself prior to the offending taking place.
62 Mr Vriends submitted you had suffered a serious injury which had required medical treatment and hospitalisation and there was a degree of permanent impairment including loss of function and sensation in your little finger on your right hand which would be ongoing. I have previously referred to that.
63 Mr Vriends submitted it was relevant to your rehabilitation prospects, that you had sought counselling for anger management and there was some optimism in that regard.
64 I am satisfied on balance your prospects of rehabilitation are reasonably good. In fixing an appropriate sentence, I must seek to maximise such chances of your rehabilitation as they may be. I note whilst there is an Intervention order in place now, you have not breached that.
65 There were Victim Impact Statements before me.
66 There was an initial Victim Impact Statement prepared by Ms Thompson, sworn 24 May 2014. She did not enjoy or feel like doing daily activities or going out on her own. At the time of that statement, it would appear she was living only a short distance from you. She referred to counselling received as at May 2014, said she had nightmares and felt anxious. Your offending had also impacted adversely upon the children Amy, Sean and Daniel, who lived with both she and Mr Salerno.
67 She referred to the financial impact of your offending upon her as being “substantial”, particularly referable to counselling sessions for the children.
68 She described as at May 2014 being depressed on a daily basis.
69 I note, consistent with my discussion with Mr Vriends and Mr Roper, there is material before me in the Victim Impact Statements which is not admissible and I have disregarded such.
70 I received a further Victim Impact Statement from Ms Joanna Thompson. She has described still having flash backs and nightmares about your offending. Since your offending, she has moved home at great expense. The relationship with her son, Luke, had deteriorated as he was now living with you and she did not want him to know where she was currently living.
71 She described significant psychological and financial impact upon her life as a result of your offending. She said she could not work and struggled to make ends meet, including the costs of moving home and the various counsellors and doctors, not only for herself but for the children.
72 She had been diagnosed with post-traumatic stress.
73 Her relationship with her three younger children had been strained as they did not understand why you would do this and were angry at her for your offending.
74 Daniel apparently still had nightmares about your offending and became angry when this incident was mentioned. Amy did not like to go out at night and locked her bedroom door at night. Ms Thompson described the impact of your offending on the three other children as “huge”.
75 She no longer felt safe at home by herself, despite moving house. She feared running into you. Your offending has also affected the relationship between herself and Jamie. She was constantly upset, crying, angry, frustrated and scared. She felt she could not move on with her life.
76 She suffered with depression and anxiety to date and received weekly counselling with a family counsellor and also counselling at CASA.
77 Attached to the recent Victim Impact Statement was a report from Therese Kazmierczak, Clinical Psychologist, dated 20 July 2014, who confirmed that Ms Thompson had been seeing her regularly since February 2014 and suffered with depression and post-traumatic stress. She said Ms Thompson lived in fear of you. This letter was written by her, it seems, in support of the request for government housing for Ms Thompson to move residence.
78 There was also a report from Mirella Marini of the Northern Centre Against Sexual Assault (“NCASA”) dated 30 October 2014, which confirmed that Ms Thompson had attended on three occasions since 3 September 2014 for counselling. Since your offending she had been concerned about feelings of safety and had difficulty resuming her normal routine and activities.
79 There was also a Victim Impact Statement from Jamie Salerno. Whilst he did not feel that he was at risk physically, he was concerned for his fiancée, Ms Thompson, and the three youngest children. He had heightened anxiety regarding security at their home and when travelling in and around their local area. They had to expend significant amounts of money as a result of moving from their home where the offending had occurred.
80 The effects upon a victim are a relevant sentencing consideration (see s5 Sentencing Act 1991). I am conscious, however, I must not allow the effects upon a victim to swamp the sentencing process.
81 Mr Vriends submitted that the appropriate disposition for your offending was to impose a community corrections order to enable you to remain in the community and improve your rehabilitation prospects by continuing with appropriate counselling.
82 Mr Roper acknowledged your plea of guilty was entered at an early stage and that you had not committed any offences in the past approximately twenty years. It was also accepted by the prosecution you had maintained the ongoing maintenance of the children of the marriage, confirmed today in the exhibit to which I have just marked, and had been assisting Luke.
83 The prosecution submitted general deterrence was an important sentencing consideration when sentencing you as well as denunciation and just punishment. I agree.
84 The prosecution submitted a community corrections order would be within the range of appropriate dispositions for your offending should I think such a disposition was appropriate.
85 I arranged to have you assessed for a community corrections order, making it clear to you that may ultimately not be the disposition I impose.
86 I received a report from Richard Temple-Camp, Acting Senior Community Corrections Officer, dated 5 November 2014, assessing your suitability for a community corrections order. You were assessed as suitable with a number of conditions recommended.
87 You were assessed as a low risk of re-offending.
88 Mr Temple-Camp confirmed your compliance with corrections orders previously made between 1992 and 1996 and you were willing to complete a community corrections order if I was to order another.
89 Conditions considered appropriate by Mr Temple-Camp were unpaid community work, a treatment and rehabilitation condition relevant to alcohol, offender behaviour programs directed to anger management and supervision. Such conditions are also, in my opinion, appropriate.
90 As well as matters personal to you, to which I have referred, including your prospects of rehabilitation, I must also take into account such matters as deterrence, especially general deterrence, which is of considerable importance in a case such as this.
91 There is also an element of specific deterrence required when sentencing you as you do have a prior criminal history for “aggressive” type behaviour, although again I note not for the same type of offending as that currently before me. I do, however, note, as I have said now many times, that your most recent court appearance was 20-plus years ago.
92 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. I note that in the context of this offending which involved your ex-partner and her current partner, this is the only instance of such offending and recent offending and hopefully this will be a deterrent to you from behaving in a similar way.
93 I am called upon by the Sentencing Act to manifest the community’s denunciation of your conduct and generally to impose a just punishment.
94 Having carefully considered this matter, I have determined that it is appropriate to accede to the submission of Mr Vriends and place you on a community corrections order.
95 What I am proposing is the following. On Charges 1 and 2, I will be recording convictions and that you be placed you on a community corrections order for a period 2 years and 6 months from today's date, 13 November 2014.
96 You have to consent to that order being made and therefore before I ask whether or not you consent to the order, you do not have to, if you do not consent I have to think of another sentence, but you have to consent to this order being made, so I have got to tell you a bit about the order, so you know what it is about.
97 There are core conditions attached to a community corrections order and they apply to every offender and not just you, that they are core conditions to every community corrections order in this State. They are as follows:
·You must not commit, whether in or outside Victoria, during the period of the order, that is two and a half years, an offence punishable by imprisonment. You have got to watch it. Even driving whilst disqualified can have a gaol term attached to it. It does not have to be the exact same type of offending for you to breach the order, you have got to be really careful.
·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 over two and a half years. If they turn up and want to see you at home, you have got to let them in.
·You must report to the community corrections Centre at 81 Burgundy Street, Heidelberg, because that will be the area that I believe is closest to you, the corrections office, within two clear days following this hearing. Your first appointment has already been booked. It is on or before 4 pm on 13 November 2014, that is today.
·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 can change jobs, you can change address, let them know within two days of changing.
·You must not leave Victoria except with the permission of the Secretary to the Department of Justice, or his or her nominee. It does not mean you cannot go on holidays out of Victoria, get the all clear first, that is all that means. Before you go make sure you get the all clear. If there is a problem you can always bring it back to court if you want to go away.
·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. Every time I say Secretary, it really means for your purposes a community corrections officer.
98 In addition to those core conditions which applies to everybody, there are a number of other conditions I attach to this order that apply to you and you alone:
· You have to perform 200 hours of unpaid community work over the first 18 months as directed by the Regional Manager.
· You must be under the supervision of a community corrections Officer for a period of 18 months. I know it is two and a half years. What that means is for one year you are not under supervision at the end, you see, 18 months off two and a half years.
·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 alcohol abuse or dependency as directed by the Regional Manager;
· You must continue counselling with Mr Johnson and/or his nominee for issues related to alcohol consumption and anger. You have got to keep doing that until it is enough. You tell them if you have had enough or if Mr Johnson says you have had enough, then things change.
99 As I have previously said, I can only impose a community corrections order if you agree to such an order being imposed. I have to keep going on because there is a bit more I have to warn you about here.
100 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. So you get charged for the breach. See s.83A(d).
101 You can also be re-sentenced for the two charges that are currently before me. One of the options available to me would include a term of imprisonment, s.83A(s). In fact that is the only other option. So you have got to be careful, I have to re-sentence you.
102 So you have got to be extra careful for the two and a half years. No committing any further offences that might incur a term of imprisonment, otherwise you are back before the court (and me, not someone else) and you will be re-sentenced on those two charges that are before me as well as the breach. You have got to be extra careful because you are looking at gaol if you breach this. I do not think I can make it any clearer.
103 I also have to advise you, if you fail to comply with any direction of the Secretary to the Department of Justice, for your purposes that means a community corrections officer, or worker if you like, as part of this order, you can be fined an amount of money. See s.83A(e) and A(f). Having heard all that, I do not know whether you want to speak to Mr Vriends, you certainly can if you want to. Do you consent to that order, or do you want to have a chat to Mr Vriends?
104 ACCUSED: No. I consent to that.
105 HER HONOUR: In those terms?
106 ACCUSED: Yes.
107 On Charges 1 and 2, you are convicted and sentenced to a community corrections order for two years and six months, which commences at today’s date being 13 November 2014 and expires on 12 May 2017.
108 Pursuant to s6AAA Sentencing Act 1991, had you been found guilty of these two charges following jury verdict, in other words if you had pleaded not guilty to the two charges and a jury had found you guilty of the two charges, I would not have ordered that you be on a community corrections order, rather I would have sentenced you to a term of imprisonment of 3 years and directed that you serve 20 months' in gaol before you were eligible for parole, so it is a big difference you can see.
109 Pursuant to s18(4) Sentencing Act 1991, I direct you have not spent any days in custody for this offence by way of pre-sentence detention and I simply have that noted in these sentencing remarks should I need to revisit this sentence in the future, which I hope I do not. Mr Vriends will explain that to you. I just make a note of that so I do not forget if I have got to revisit this sentence and think of another sentence.
110 The prosecution made application for an order for compensation in the sum of $715 for repair of broken windows at the property. Counsel who appeared on your behalf consented to the making of that order and I make the order in the terms sought.
111 Pursuant to s464ZF(2) Crimes Act 1958, the prosecution made application for a forensic sample. The taking of a forensic sample for this offence is automatic, as I understand it, of attempted aggravated burglary. Even if it is not, I make the order and I make the order in the terms sought which is based on the seriousness of your offending. It will be a saliva sample not blood and it will be based on the seriousness of your offending, as I have said, and your prior court appearances. I must advise you the authorities may use reasonable force in order to obtain that sample.
112 First of all, are there any other orders? No? Any other matters?
113 MR ROPER: No, Your Honour.
114 MR VRIENDS: No, Your Honour.
115 HER HONOUR: No, all right. Is PSD right? Even though we are not actually declaring it, it is in case I have to come back to it.
116 MR VRIENDS: Yes, Your Honour.
117 MR VRIENDS: May I leave the Bar table, Your Honour?
118 HER HONOUR: Yes, yes. What you are being asked to do is to sign, acknowledging you will be on this corrections order.
119 (Community corrections order signed and acknowledged.)
120 (Compensation order signed and acknowledged.)
121 (Section 464ZF(2) order signed and acknowledged.)
122 That was signed by him. I will sign it.
123 I know you have to get moving to get out and report at some stage today, but can I just say this to you as a little bit of friendly advice and I do say that. The court is very concerned about domestic violence issues in broad terms, do you follow? I think, you probably do not, but I think I have been pretty lenient. In my opinion I have been very lenient today. You were staring a gaol term in the face. The bottom line is in marriage break ups there are going to be ongoing issues particularly when kids reach significant events, 21, when they turn 12 or 13, when they become teenagers, when they get licences, when they get married. They are all going to be really trying times for you. Just be very careful you do not rise to the occasion if you feel you are being baited. I am not suggesting you are, I know texts go both ways in this case, but just be very careful. All right?
124 ACCUSED: Yes.
125 HER HONOUR: Because I will not give you another chance. That is meant to be a bit of friendly advice. I am certainly aware how significant events can make relationships particularly strained. Anyway for what it is worth.
126 Is there anything else?
127 MR ROPER: No, Your Honour.
128 MR VRIENDS: No, Your Honour.
129 HER HONOUR: Thank you very much for that.
130 MR ROPER: If Your Honour pleases.
131 MR VRIENDS: If Your Honour pleases.
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