Director of Public Prosecutions v McCarty (a Pseudonym)

IN THE COUNTY COURT OF VICTORIA

Revised
Not Restricted
Suitable for Publication

AT MELBOURNE

CRIMINAL DIVISION

DIRECTOR OF PUBLIC PROSECUTIONS

COOPER MCCARTY (a Pseudonym)

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JUDGE:	Her Honour Judge Hampel
WHERE HELD:	Melbourne
DATE OF HEARING:	20 October 2020
DATE OF SENTENCE:	27 October 2020
CASE MAY BE CITED AS:	DPP v McCarty (a Pseudonym)
MEDIUM NEUTRAL CITATION:	[2020] VCC 1741

REASONS FOR SENTENCE
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Subject:

Catchwords:

Legislation Cited:
Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr Z. Menon	Office of Public Prosecutions
For the Accused	Ms S. Gillahan	Emma Turnbull Lawyers

HER HONOUR:

Cooper McCarty,[1] on 14 August 2017, an intervention order was made against you in the Magistrates’ Court, listing as protected persons your former partner, Tahlia Buss,[2] and the two children of your relationship with her, girls now aged 13 and 11. The order included conditions that you were not to contact or communicate with or approach or remain within 20 metres of a protected person, and not to go to or remain within 50 metres of a nominated address, which was their home in Robinvale.
[1] A pseudonym.
[2] A pseudonym.
This order was in effect for life. It runs until 31 December 2060. Although it was in breach of the order, you had had some contact with your daughters on Instagram. Ms Buss acquiesced to the contact and had been monitoring the messages.
On 7 December 2019, you sent a number of abusive messages to Ms Buss on Instagram. She did not respond to you and blocked further contact between you and the children. She reported your breach of the order by the messages sent to her to police. You were arrested that same day, 7 December, and having refused to participate in an interview, you were released. It was likely though that you understood that you were going to be charged with breach of the intervention order.
Four days later, in the early hours of the morning of 11 December 2019, you went to the home where Ms Buss lived with her partner, Koby Denton,[3] and her children, your two daughters, and her two children with Mr Denton. Those two children are boys aged six and four.
[3] A pseudonym.
You rang the front doorbell and then went around the house and entered it through the rear door. Ms Buss, who had got out of bed when she heard the doorbell, hid behind a bedroom door. She saw you attempt to enter the main bedroom where Mr Denton and the younger children were sleeping. She pushed you out of the doorway of the bedroom, shut it and tried to push you towards the rear of the house.
Mr Denton woke and could hear you saying “Where is he? Where is he?”.
Ms Buss managed to pass her phone to Mr Denton and directed him to ring 000 and report that you were threatening and trying to attack them.
Ms Buss continued to push you away from the main bedroom towards the rear of the house specifically the bedroom where your daughters were. They tried to calm you down. Your younger daughter, the 11 year old, told you, “you can’t be here dad”.
You became agitated and started to snap pencils and picked up a knife which was on the floor and went to leave the room. Ms Buss managed to knock the knife from your hand. You pushed past her and got out of the room. She grabbed or tackled you and you both fell to the ground.
You got up and again attempted to force your way into the main bedroom, the one that Mr Denton was still inside with the two younger children. He was trying to hold the door closed. You eventually got it open. He punched you. That did not stop you. You tackled him to the ground. The younger children fled the room. You pinned Mr Denton’s face to the floor, gouging his face, arms and back with one of the broken pencils that you had earlier snapped.
You then began applying pressure to Mr Denton’s neck with the pencil while you were still pinning him to the ground. Mr Denton feared for his life.
Ms Buss was trying to stop you and pull you off Mr Denton. She managed to take the pencil from you. Despite her efforts, which included punching and biting you, she was unable to stop you. You continued to pin Mr Denton down and attack him, punching him, choking him with your hands around his neck, spitting in his face and biting his right ear. You grabbed a phone charger and wrapped the cord around his neck, choking him. He managed to get a hand under the cord to prevent you from strangling him and Ms Buss was then able to get it away.
You began to tire. You were still lying on top of Mr Denton, pinning him down, but as you raised your head to spit on him again Ms Buss was able to push you off him. You grabbed at a fan which had a heavy pedestal base, but
Ms Buss was able to get it out of your reach.
You called out to the children to get you a drink. Ms Buss was able to get you out of the bedroom. She took you into the kitchen and gave you a drink of water. Meanwhile, Mr Denton managed to make his escape, running from the house and driving himself to hospital.
While you were attacking Mr Denton, your older daughter had run to a neighbour’s house and asked them to call the police. She told them and the 000 operator that you were hitting and trying to fight her stepfather. Back in the house your younger daughter also called 000 and reported that you were physically fighting Mr Denton and making a big scene.
It was 45 minutes after you first entered the house that the police arrived and you were arrested and removed from the house. When interviewed you made no comment when the allegations were put to you.
It is this conduct that gives rise to the charges to which you have pleaded guilty. Aggravated burglary, that is, entering the home as a trespasser with intent to assault Mr Denton, in circumstances where you knew or were reckless as to the presence of Mr Denton, Ms Buss and the four young children. Intentionally cause injury, from the course of conduct in attacking Mr Denton, which included gouging with the pencil, punching, biting and trying to choke
Mr Denton with your hands, which left him with deep scratches and bruises to his neck, back and face. And common assault, which included trying to choke Mr Denton with the phone cord and spitting on him.
Your conduct in going to the house, entering it and assaulting Mr Denton also gives rise to Charge 4, contravention of a family violence intervention order by intending to cause harm or fear for safety.
You have also pleaded guilty to two related summary offences; one of contravening a family violence intervention order relating to your conduct in messaging Ms Buss four days earlier, on 7 December 2019. I do not, as I have said, take that into account as an aggravating feature or as being directly related to the circumstances of the aggravated burglary and related offences.
You were on bail at the time for other family violence and breach of intervention order-related charges. Those other intervention order-related charges are in respect of your mother, who is also a protected person under an intervention order against you. You were also on bail for failing to appear in respect of those charges. As a result of that, you have also pleaded guilty to the related summary offence of committing an indictable offence, that is the aggravated burglary, whilst on bail in respect of those charges relating to your mother and the failure to appear in court.
Ms Buss has made a victim impact statement. She reports, not surprisingly, that since the incident she has been scared, afraid to sleep, feels unsafe in her home and worried for her safety and that of her children. She remarks how sad it is that she has had to work out a safety plan with them and how angry she is that your conduct had made her afraid, vigilant at home and outside, and has caused her to lose that sense that home is a safe haven, a place free from memories of fear.
This is serious offending. One measure of its gravity are the penalties: for aggravated burglary, a maximum sentence of 25 years imprisonment; for intentionally causing serious injury, 10 years; for common assault and contravene family violence intervention order intending to cause harm or fear for safety, 5 years each; contravene a condition of a family violence intervention order by making contact with Ms Buss, 2 years; and the penalty for committing an indictable offence on bail is three months imprisonment or a fine.
So far as the aggravated burglary is concerned, by your plea of guilty, you acknowledge your intention was to assault Mr Denton. That is, to commit an offence of personal violence. Without diminishing the seriousness of aggravated burglary where the intended crime is one involving dishonesty, an intent to commit a serious act of personal violence in such circumstances makes this a serious example of this type of offence. You knew this was the family home of your former partner and her four young children, two of whom were your own. You were, by the terms of the family violence intervention order, prohibited from going to that house or of being within 20 metres of Ms Buss and the children. You knew they were or were likely to be home and asleep given the time of your break-in. You had been questioned and released pending charge only days earlier for breach of that intervention order by your communications with Ms Buss via Instagram. You were subject to two separate court orders which contained conditions you were not to commit further offences: the bail to which I have referred and a community correction order, imposed for other family violence offences.
The aggravated burglary is properly characterised as a confrontational aggravated burglary. It occurred in a family violence context, that is, going into the home where the affected family members were and where you were prohibited from going and it occurred in the presence of Ms Buss and the four young children, the oldest two being your children with her. I accept the prosecution submission the objective gravity makes it above the mid-level.
Although the injuries sustained by Mr Denton were not permanent and do not sit at the higher end of the scale of injury (as opposed to serious injury), the attack was sustained and vicious. It involved using household items as weapons, gouging, choking, biting and spitting as well as repeated punches to the head and body, using your size and body weight to pin the victim down. It occurred in the presence of the four young children as well as their mother. All these features are properly, without doubly punishing you, to be taken into account when assessing the seriousness of the cause injury and assault charges. Despite the relatively low-level injuries, these other features elevate the charges of intentionally cause injury and common assault above the low end of the scale of offending of its type.
The circumstances of the breach of the family violence intervention order involving as they did an intention to cause harm or fear for safety make it a serious example of an already serious offence. That your intention to cause harm or fear was achieved can be demonstrated by the response of your former partner and your children to your conduct. Those responses include the attempts by your children to calm you, their telling you you should not be there, and seeking outside help, by calling 000, and going to the neighbours. So, too, by the persistent and forceful interventions by Ms Buss as she sought to stop you and to protect Mr Denton from the attack and the children from exposure to it, her conduct in bringing the attack to an end in disarming you when you grabbed the knife, pulling the broken pencil you used to gouge Mr Denton from your hand, throwing the fan away when you grabbed at it, pulling the cord away from Mr Denton’s neck as you were trying to strangle him with it and pulling you off when you began to tire. For all of these reasons, this too is a serious example of a serious offence.
It is clear that these objective circumstances of the offending themselves require that, subject to considerations personal to you, denunciation, general deterrence, just punishment and protection of the community are all important sentencing factors.
You have a very troubling criminal history, which also must be taken into account when considering these sentencing factors and your prospects for rehabilitation.
In the last 10 years you have been dealt with for eight separate offences of contravene a family violence intervention order or a family safety notice, two charges of contravene a family violence intervention order in circumstances intending harm or fear, and one of persistent contravention of a family violence intervention order. Some of those offences relate to your mother. Most relate to Ms Buss, and they provide some insight into why the family violence intervention order which is in place to protect her and your children runs until 2060.
You also have previous convictions for personal violence and aggravated burglary. You have been sentenced to a range of sentencing orders, including community correction orders, suspended sentences and terms of imprisonment. As noted, you were subject to a community correction order and on bail at the time of the commission of these offences. It follows from this that no sentencing order or other court order, family violence intervention order or bail order has deterred you from continuing to offend.
What then are the matters personal to you which explain and contextualise your offending, which explain how you come to be where you are today, and what are the matters which count in your favour and operate to reduce the weight otherwise to be given to denunciation, deterrence, just punishment and protection of the community?
You are 35, a Wiradjuri and Mutti Mutti man, brought up in Robinvale by your mother. She sounds a remarkable woman. She provided what appears to me to be a stable home for you and your stepsister. Your childhood home must have been full of children. Your mother fostered other indigenous children, you report up to four at a time, some of whom were extended family members. Some of them, I accept, must have come from difficult or traumatic backgrounds and life would not always have been easy or without incident. Nonetheless your mother seemed to be a remarkable and stable influence in your life.
You have never had any contact with your father, and you report feeling different or left out particularly when socialising with the wider indigenous community because of the absence of a father figure.
You remained in school until year 10 and completed three years of a four-year apprenticeship as a fitter and turner. Although there are no suggestions that your intelligence is impaired, you reported some difficulty at school with reading and writing, and also difficulty with the theoretical part of your apprenticeship, as you went into your fourth year. That seems to be at least a, if not the major reason for your discontinuing the apprenticeship.
You were a talented footballer. You moved to Melbourne at 18 to play with the Western Jets, which is a development squad. However, keeping bad company, substance abuse, contact with the criminal justice system and homesickness all played a part in your inability to realise your dream of being drafted to play in the AFL.
You returned ultimately to Robinvale and to work, but by 2009, at 24 or 25, you had been sentenced to your first term of imprisonment. You have not had stable or regular employment since then.
You were only 21 when you and Ms Buss commenced your relationship. Although blessed by the birth of two daughters, the relationship was blighted by your violence to her and your substance abuse. By the time you were 25, at about the time it would appear of your first sentence of imprisonment, the relationship with Ms Buss had come to an end.
Your substance abuse started early. You report beginning to smoke cannabis and drink alcohol at about 13 years of age having been exposed to it by older cousins. After your return to Robinvale at the end of your professional football career, your substance abuse escalated. You report habitual intravenous use of speed, methamphetamine and heroin since then, together with significant alcohol abuse. You have at times used other drugs as well. The psychologist, Dr Ian McKinnon, who assessed you on 5 September this year for the purposes of the plea, not surprisingly, based on this history, diagnosed a polysubstance dependence disorder.
Although it does not excuse it, there is a clear correlation between your sorry history of family violence and your substance abuse. Your criminal history and the parallel history of the making of family violence intervention orders in favour of your former partner, children and your mother bear testament to that.
It would appear that your substance abuse had escalated and was of concern to those in contact with you in the days leading up to the offending that brings you before the court for sentence today. You report over those days leading up to the offending that you became convinced that Mr Denton was sexually abusing your daughters. You accept now that was a baseless and indeed delusional belief which, if not caused by, was certainly compounded by your substance abuse. Your report that it was this delusional unfounded belief which led you to force your way into the house and attack Mr Denton as you did.
You have been in custody since you were charged with these offences. In that time, you have had opportunity to reflect and to do so whilst unimpaired by substances. You now not only accept that your belief was unfounded or delusional but you express shame and remorse for attacking Mr Denton as you did and for exposing Ms Buss and the children to such frightening and violent behaviour.
You clearly have the capacity to be a better person than the substance-impaired, irrational and angry man you were on this night. I have already noted your stable upbringing, including your participation in school until you left to commence your apprenticeship, the successful completion of three years of an apprenticeship, the pursuit of a professional football career leading to your being recruited to the Western Jets and your playing professional football in Melbourne for some time (even if it was not, as you hoped it ultimately to be, at AFL level).
You are connected with the Aboriginal community in the Mildura and Robinvale areas, and have shown yourself open to seeking help from and engaging with rehabilitation services specifically designed to meet the needs of Indigenous men. You have attended residential drug rehabilitation at both Galliamble and Wulgunggo Ngalu Learning Place. After your last release from Wulgunggo Ngalu in August 2019 you returned to Mildura. You did not have stable housing and you soon relapsed into substance abuse. You were candid about that with your community corrections officer and took up a referral to the social and emotional well-being team at MDAS (Mallee District Aboriginal Services). You engaged, at times after that, with a Koori alcohol and drug diversion worker. You were on the waitlist for access to psychological treatment through MDAS. You clearly have a desire, although not always being able to be matched by sustained commitment, to address your substance abuse and you continue to ask for and seek assistance.
You completed the unpaid community work hours and the offending behaviour programs attached to your most recent community correction order. You had partially completed the treatment and rehabilitation and mental health assessment and treatment conditions of that order by the time of this offending. As noted, psychological treatment had not commenced, although you were on a waitlist, and you had relapsed into drug use after your return from Wulgunggo Ngalu in August and up until the time of this offending.

Although Ms Gillahan properly identified your prospects of rehabilitation as guarded, having regard to your long history of offending and substance abuse, it is of significance, and positive significance to you, in my view, that you have shown yourself open to continuing to engage and to want to continue to engage with rehabilitation services.
You express a deep and abiding love of your children. The hope of having contact with them, and of being a good father to them, a father they will want to see, not fear, is a very powerful protective factor and one that counts in your favour in assessing your prospects for rehabilitation. Although I note your love for them and a desire to see them has not deterred you in the past, and did not do so on this occasion, from breaching orders designed to protect them from exposure to the very conduct you engaged in on this night. But I have no doubt your love for your children and your desire to be a good and protective father of them is deep and genuine.
You elected to have your matter heard in the Koori Court. That is not an easy option. The sentencing conversation with the elders, Aunty Ada Peterson and Uncle Mark Bland, was direct and powerful. They spoke directly to you and confronted you with some uncomfortable truths. At times you sought to justify your behaviour by reference to your substance impairment and your belief, which you now acknowledge to be unfounded, that Mr Denton was abusing your daughters. You told the elders that one of your daughters had told you that you were choosing drugs over them, but that you felt that was untrue. You initially resisted the elders' advice to engage in parenting and men’s behavioural change programs, telling them you had already engaged in such programs.
After some direct discussion, you acknowledged that your daughters would not have seen your conduct as a demonstration of your love for them. The elders told you directly that they would have been terrified and traumatised by your behaviour, and that your daughter spoke the truth when she said that you were choosing drugs over them. You acknowledged you had more to do in engaging in further parenting and men’s behavioural change programs and more drug rehabilitation. Importantly, by the end of the conversation you had acknowledged it was your responsibility to address your substance abuse and violent behaviour and, although there was help available, it was you who had to deal with it. And in my view, most significantly, you acknowledged and were able to articulate the importance of helping yourself, that is, in overcoming your substance abuse and your resort to violence, before you could earn the trust of your children and establish a better relationship with them.
It is because a sentencing conversation can be as direct and confronting as this one was, involving as it did, a direct conversation between you, as the offender, and the elders, without the interposition of counsel speaking on your behalf, that the Court of Appeal has repeatedly described the sentencing conversation as a matter that can have a significant impact on sentencing. In this case, I am satisfied that, as a result of this process, you were shamed by being confronted with the uncompromising attitude of the elders that this was unacceptable behaviour within the community of which they and you are a part. They challenged you and took you beyond concern about yourself. They challenged you on the way you asserted you thought your daughters would have responded by telling you that your children would have been traumatised and they would not have framed your actions as the conduct of somebody who loved and wanted to protect them.
I accept that, after that conversation, you had a better understanding of your personal and moral responsibility for your conduct on that night, that you demonstrated remorse that was directed towards the appreciation of the impact on your children and that you were no longer seeking to justify your behaviour. After that conversation, I am satisfied that you accepted that you could not blame drugs or a delusional belief for your conduct and that you have the responsibility to engage in further rehabilitation programs until you are safe and the community is safe from the risk of recurrence of substance-impaired or violent behaviour such as you displayed that night.
For these reasons, the principles outlined by the Court of Appeal in Morgan[4] and Honeysett[5] apply in your case and I mitigate your sentences accordingly.
[4] R v Morgan (2010) 24 VR 230.
[5] Honeysett v The Queen [2018] VSCA 214.
I accept that your response by the end of the sentencing conversation was genuine and should enhance your prospects for maintaining your desire to be substance and violence-free and to live a healthier, happier life in the community.
I also take into account in your favour your pleas of guilty. They were entered at a very early stage. That evidences acceptance of responsibility, legal as well as moral. It has saved the victims the ordeal of having to relive the events, having to give evidence and, perhaps, face the indignity of being challenged on their account. In addition, your guilty pleas are entitled to be given weight for their utilitarian benefit and their role in advancing of the interests of justice more generally.
In electing to have your matters dealt with in the County Koori Court, the effect of the COVID-19 pandemic restrictions on the reconvening of this Court meant that there was a considerable additional delay in the hearing of your pleas. I take that into account in these ways. The delay in itself is a matter proper to take into account. You carried the burden of having these matters unresolved for a longer period than you otherwise would have been required to. That meant you were not able to be classified as a prisoner and you have been a remandee for a longer period. That you were prepared to accept the additional delay is further evidence of your commitment to participation in the sentencing conversation with the elders and further evidence of remorse and acceptance of responsibility. It also meant, Ms Gillahan has just told me, that you spent eight days in COVID isolation as a result of the requirement, by participation in the County Koori Court, to come to court for the sentencing conversation. Had you not elected to have the matters dealt with in the County Koori Court and proceeded otherwise, your sentencing hearing would have been conducted entirely by video link and you would have not suffered that eight days of quarantine. That again is further evidence of your commitment and a matter of itself to be taken into account in reducing your sentence.
I also take into account the impact of COVID-19 in the prison system generally. You have been subjected to the restrictions on movement, activity and contact whilst the pandemic continues. Whilst the prisons are to be commended for their success in keeping the prison and prisoners safe, that comes at a cost and the fear of what will happen in terms of illness and restrictions if Coronavirus does find its way into the prison system is ever-present and is a burden. I accept that all of these are proper matters to take into account in reducing the sentence otherwise appropriate. And my summary way of dealing with those is not intended in any way to devalue the weight to be given to the restriction of movement, the loss of access to programs, the loss of face-to-face contact and the loss of ability to have contact with visitors or any of the other matters.
I also accept the assessment of Dr McKinnon that you have developed an entrenched depression, largely as a response to your deteriorating life circumstances (including the breakdown of your relationship with Ms Buss, separation from your children, long-term unemployment, chronic interpersonal difficulties, feeling you have disappointed your mother, failing to pursue vocational or social goals) and, at the age of 35, having nothing to show for your life. I accept that all of these matters will make imprisonment more onerous for you than it would for a person not so circumstanced and I take that into account.
I do not consider that the principles in Bugmy[6] and Marrah[7] apply. On the material before me, including what you said in the course of the sentencing conversation, your childhood and upbringing, although lacking a father figure, was safe, stable and loving. You were not exposed as a child to emotional or physical abuse or neglect, things which we know can have enduring, lifelong, adverse effect on a person. That, like many young people in the broader milieu in which you moved, there were people older than you who should have known better, using and abusing substances is not a matter that I consider brings you within the Bugmy and Marrah principle, although I do take into account that starting a life of substance abuse when you are very young is something that is more to be understood and pitied than to be used as condemnation. It is harder if you start young to see the light and give up, even if you are a promising athlete, and you were no doubt given instruction and advice in your football career to keep away from the substances so you could play better.
[6] Bugmy v The Queen (2013) 249 CLR 571.
[7] Marrah v The Queen [2014] VSCA 119.
I do not consider that your moral culpability is reduced by reason of your polysubstance abuse or your depression. You were substance impaired, but voluntarily, when you committed the offences. That is no mitigating feature. It does not provide a basis for reducing the weight to be given to general or specific deterrence. And I do not consider that the report of Mr McKinnon provides a proper basis for finding that there is a causal connection between your depression and the commission of the offences. This was nothing other than a delusional belief induced by your substance impairment.
Although I do not in any way intend, by saying this, to devalue the significance of the loss of liberty and autonomy which is the true punishment of imprisonment, the time in custody has given you an opportunity to be and remain substance-free. You have been taking prescribed antidepressants in a controlled and monitored environment, you have had access to programs, although most have not been face-to-face, to assist you in addressing your offending behaviour and you have been living in a structured environment, although a non-free one. All of those matters are in marked contrast to what appear to be the chaotic circumstances in which you were living in the time leading up to the offending. You are more likely now to address your mental health than you would living in unstable housing, with all too easy access to illicit substances, and limited means to access support services. You appear to have used this time to sober up and to reflect well and I hope it provides you with a good foundation for your future.
As Ms Gillahan acknowledged, your prospects for rehabilitation can best be described as guarded. As the elders put so clearly, you are capable of living a better and happier life than you have. You have intelligence, education, an early demonstrated history of engagement in vocational training and employment that shows you can do it. You have athletic ability and sporting prowess which again you can use to a good end if you clean your life up. You also have the prospect of family support and the prospect of a meaningful and loving relationship with your children to look forward to, to assist you in your rehabilitation and to encourage you to rehabilitate so you can earn that right to see your children and to spend time with them. It is up to you to take advantage of the help and support that is available during your sentence and upon your release.
I am of the very strong view that you and the community will benefit most if you are provided with education programs and counselling in custody and you are provided with educational programs, counselling and supervision upon your release into the community. You will benefit most on your release into the community if you are also provided with stable housing and immediate access to drug rehabilitation and other services that you will need to assist your reintegration into the community. I urge the corrections authorities to make such programs available to you in custody and on parole and to make stable housing available to you on parole so as to help you fulfil your potential and keep you substance and offence-free, give you the best opportunity of engaging with and maintaining your engagement with the rehabilitation services you clearly want to access and want to have a greater ability to benefit from.
Taking all of those matters into account, the sentence I impose may sound lenient for the offence until one looks at the significant weight that must be given to the factors that I have identified and Ms Gillahan so powerfully identified in her written and oral submissions, and I have allowed for a considerable gap between the head sentence and the non-parole period in order to allow for extended supervision on release.
That then brings me to the end of my reasons and I am now about to sentence you, Mr McCarty.
On all charges to which you have pleaded guilty, you are convicted.
On Charge 1 of aggravated burglary you are sentenced to be imprisoned for a period of three years.
On Charge 2 of intentionally cause injury you are sentenced to be imprisoned for a period of 18 months.
On Charge 3 of common assault a term of imprisonment of nine months is imposed.
On Charge 4 the breach of the family violence intervention order with intent to cause fear or harm you are sentenced to be imprisoned for a period of 12 months.
On the related summary offences, commit an indictable offence on bail, you are sentenced to be imprisoned for a period of one month, and on the breach of the family violence intervention order condition by contacting Ms Buss you are sentenced to be imprisoned for a period of three months.
I direct that six months of the sentence on Charge 2, three months of the sentence on Charge 3 and three months of the sentence on Charge 4 are to be served cumulatively upon each other and upon the sentence on Charge 1 which is the base sentence.
That makes a total effective sentence of four years' imprisonment and I fix the period of two years as the time that you must serve before being eligible for parole. I declare pursuant to s 6AAA of the Sentencing Act 1991 (Vic) that, but for your plea of guilty, I would have sentenced you to a term of imprisonment of seven years and fixed the period of four and a half years as the time that you should have served before being eligible for parole.
Now is it now agreed that there is 302 days of pre-sentence detention?
MR MENON: Yes, that is correct, your Honour.
HER HONOUR: I declare that you have spent 302 days in pre-sentence detention and direct that that be counted and reckoned as part of the sentence already served.
Are there any further orders that are required to be made?
MR MENON: Your Honour, just the disposal order.
HER HONOUR: That is consented to is it not, Ms Gillahan?
MS GILLAHAN: It is, yes.
HER HONOUR: I make the disposal order in the terms sought.
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[2020] VCC 1741

27 October 2020