Director of Public Prosecutions v McLean

[2019] VCC 1689

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

AT SHEPPARTON
CRIMINAL JURISDICTION

CR-18-01108

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOSHUA MCLEAN

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Shepparton
DATE OF HEARING:	16 October 2019
DATE OF SENTENCE:	17 October 2019
CASE MAY BE CITED AS:	DPP v McLean
MEDIUM NEUTRAL CITATION:	[2019] VCC 1689

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Brown	Office of Public Prosecutions
For the Accused	Mr L. Slater	Slater and King

HIS HONOUR:

1Joshua McLean, you have pleaded guilty to one charge of home invasion and one charge of intentionally causing injury.  Those crimes carry maximum penalties of 25 years and 10 years respectively.

2You are now 27 years of age, you were 25 years of age at the time of the offending.

3You have no prior convictions and you have no matters pending.

4I accept that you plea of guilty is accompanied by profound remorse, which has been confirmed before me and that you must also, of course, get the utilitarian benefit of that plea of guilty.

5There has been a significant delay in the matter coming on before me for a plea and I do no attribute blame in any way, shape or form for that.

6The offending actually occurred back in September 2017.  Accordingly, there is a delay of some two years.  Throughout that extended period of time you would have been under the understanding that you were charged with aggravated home invasion, which carries a mandatory minimum term.  So you spent that period of time, up until recently, under that fear.

7There are a number of co-accused in this matter and I do not intend to say anything about them as some of them may be going to trial.  I can totally understand in a situation where there are four or five accused in a matter such as this that it does take an extended period of time to settle the matter. But at the end of the day you have pleaded to a settled indictment and I accept that as having been done at the earliest reasonable opportunity.  However, two years in a situation such as this is an onerous period of time.

8In the decision of NWH back in 2001 Callaway JA said in that case, after having pointed out the uncertainty of liberty after the offences came to light that,

'There may be practical considerations that require a marked degree of leniency to be extended'.

9Obviously, I interpolate, there was a delay.

The foregoing [and I do not have to go there] is by no means an exhaustive list and it omits the most important potential effect of delay, namely rehabilitation.  The person standing for sentence may have been rehabilitated in one or more ways.  He may have given up a form of substance that contributed to the offending, he may have re-ordered his life, he may have changed morally so that quite apart from being older he would not be likely to re-offend, he may have suffered genuine remorse in the sense of repentance, not just sorrow and being caught and fear of punishment.  So far as possible a lengthy process of rehabilitation should not be halted or endangered by the sentence imposed'.

10And in my view those words have real application in this case.

11I have before me a number of references and the first one I propose to go to, before I go into the summary of the offending, is that after you were involved in this you were clearly very apologetic to an uncle not long afterwards saying that you essentially, 'Fucked it up', and that you are an idiot.  It is clear that the remorse was very soon following on from what you did and it has nothing to do with you having been charged.

12Further to that, I think this is of importance, a letter from your current partner who is a nurse, who is doing training, who is reliant upon you financially, says that after the incident you had undertaken anger management courses in which you said to her that you had learnt many strategies relating to anger management and relationship skills.  She said that she believed that that had made you a better person.  She then goes on to describe your genuine remorse and that you have discussed it on numerous occasions.

13I also have before me a letter from Relationships Australia, which says that by November 2017 you had already commenced that course and you completed it. It required 12 out of 14 weeks and it says that - it talks about the Family Law Act, I do not know what that has got to do with it. It says you have completed that course and would appear to have done it well.

14That sort of thing usually takes place, in my experience, about two months before sentencing.  For somebody to have taken that upon himself in these circumstances so soon after the event strikes me as a person who is genuinely determined to rehabilitate and supports the very strong inference that is already there of genuine remorse.

15The other letters, which I do not need to go through at this point in time, also - or testimonials also refer to remorse.

16Yours is a situation where - I am not blaming the Crown at all but delay is a significant factor.

17The circumstances of the offending are that in late 2017 you were in a relationship with one Madeline Antoniwitz, she was 24 years of age.  Your friend or former friend, a Mr BJ McGarry, had commenced a relationship with her.  You also knew a Ms Milne.  You and Ms Antoniwitz had been in a relationship for years and were engaged to be married.  That relationship apparently ended a few weeks prior to this.  You and Mr McGarry had gone to high school together it seems that had grown apart though.  How much this had to do with that, I do not know.

18But in any event, about two to three weeks prior to the offending you, a
Mr Knight and Ms Milne went to the address of the complainant in this matter, to confront Ms McGarry and Ms Antoniwitz about whether they were in a relationship.  It would seem that they clearly were.  Mr Milne in fact had been in a relationship with Mr McGarry and they were to be married in the November that was approaching.  Mr McGarry and Ms Antoniwitz denied that there was any form of relationship in place.

19In those circumstances you and Ms Milne left the premises and under very strange circumstances, I would have thought, but nevertheless there was no violence, no attack and it appeared to have settled down.

20However, on 9 September 2017, as I said a couple of weeks later, a number of you attended a party in Shepparton east.  It was a going away party.

21I do not need to go through all who the co-accused were and I have made it clear I may well have to preside over trials or a trial in this matter and I am making no findings whatsoever about that.

22However, at that party alcohol was being consumed and the conversation turned to the topic of Mr McGarry and Ms Antoniwitz's relationship.  I accept that people were saying words to the effect that they would basically have assaulted Mr McGarry if they were in your position.  That went on during the course of the party, clearly alcohol was being drunk and as a result you became agitated and somewhat worked up.

23You and two others got into a vehicle and you all drove to your house in
St Georges Road, Shepparton.  Another person saw that and essentially joined in the expedition.  You were all driven to Mr McGarry's house and clearly the car pulled up outside and forced entry was obtained.

24Again, I am not going to go into who exactly did what, but it is clear that a window was kicked in, window was smashed, a door was kicked in and more than one of you entered those premises knowing that McGarry was there and that is what gives rise to the home invasion charge.

25Mr McGarry and Ms Antoniwitz were in the master bedroom at the front of the house eating pizza and watching television.  The group of you, as I say, burst into the house.  McGarry got out of bed and opened the bedroom.  Antoniwitz also got out of bed and walked to the front door to see what was going on.  It was at that time or around that time that the window was smashed and the door kicked upon.

26You used one arm to push Ms Antoniwitz out of the way and she went into the bedroom and closed the door.  She apparently from there called the police.

27Mc Garry turned around and ran into to the kitchen area.  He was pushed behind by somebody, which caused him to fall into the window.  So he tried to turnaround so his face would not make contact with the window but the window smashed and went through it with his backside.  He was pulled back into the house and thrown onto the breakfast bar and he was further assaulted.  The Crown opening says that you punched him several times to the face.  He apparently says he felt kicks and punches and that you and another man were calling Mr McGarry names like, 'Cunt', and, 'Dog'.  He was smashed over the head with a Jim Beam bottle, it would appear. That plays no part in my sentencing of you and there is no suggestion that you were party to a bottle being taken into the premises.

28In any event, those of you who were involved then returned to the car and drove back to the party.  There was conversation in the car about McGarry having been bashed.  You then telephoned your uncle, Mr O'Flynn, and asked him to pick you up from the party.  You also asked your uncle if you could stay at his place.  While in the car with him you said, 'I fucked up, uncle Rob', and kept saying, 'I'm a fucking idiot'.  As I have indicated that shows that early on in the peace you were remorseful and regretted what you had done.

29Mr McGarry was taken to hospital and was treated for injuries.  There were multiple superficial lacerations to his head, ear, left-arm, left-leg and left-foot.  He had a bruised eye and a split lip.  There were lacerations to his calf and ankle which required sutures and other wounds were cleaned and dressed.  There is nothing before me which indicates that those injuries have been ongoing and not surprisingly, in this overall situation, there is no victim impact statement before me from either Mr McGarry or Ms Antoniwitz.

30You were then interviewed by police and initially, as is somewhat understandable, said that you had very little memory of it.  But ultimately during the course of that interview and in your discussions with police you made admissions.  You made admissions to matters that the Crown might not otherwise have been able to prove and in the end you said,

'I was upset.  I was hurt, angry, betrayed but there's no excuse for what I did and I feel terrible'.

31I accept that that expression of your state of mind to the police was the truth and confirms what I have already said about the concept of remorse.

32The offending has to be regarded as serious.  Clearly in circumstances such as this there is a need for general deterrence.

33The Court of Appeal in a number of decisions, including Hogarth, has indicated that the sentencing range for this has over the years been less than what it should have been.  However, it remains the case the every single one of these matters has to be decided on the factual basis of it.

34It is the situation where there were a number of you.  It is a situation where the assault was not of very brief duration, it was somewhat prolonged and injury was suffered.  One of the factors that has to be taken into account in such a situation as this is not only what did actually occur, and there is a charge for that, but the problem with home invasions and aggravated burglaries is that they can escalate into very, very serious matters indeed.  Anyway, I think the community would realise that sometimes these incidents end up with someone being dead.  That has to play a part in the general deterrence aspect of it.

35Accordingly, I find that it is in essentially the middle range, in so far as it is concerned.  So far as you are concerned.  I do not sentence you for a weapon and again, I am not going to buy into all that because of what might occur in the future.

36It is a situation where, I will be quite frank with you during the course of the plea, when I first read that Crown opening it was my immediate view that a custodial sentence was inevitable, despite the fact that you had no priors and despite the obvious remorse that you had expressed to the police.  The submissions being put now are that a community corrections order would be the appropriate disposition, the Crown position is that a custodial sentence is required.  I am not going to go through an assessment of Hogarth and all the decisions that follow it; I think it is common ground that the situation is of seriousness and in the ordinary course of event there would in fact be a custodial sentence.

37Firstly, you have clearly very strong support in this community.  You had a significant number of people, probably a score - though I did not count them - here in support of you and you have come from a very disadvantaged background indeed.

38I have had you assessed for a community corrections order and you have been found to be suitable.  The first matters that obviously go to mitigation, in respect of your position here, are the profound remorse, as I have indicated, you cooperated with police relatively early after the event, you have no prior convictions and nothing subsequent, you have had two years of compliance with bail and I have already indicated the effect of delay in a situation such as this.

39I also accept on the material before me, from the actual character references, that this is totally out of character for you.

40Very helpful submissions were provided by your counsel and there was material called from the Department of Health and Human Services about what you have done since and about your background and about what is occurring with your brother.  The circumstances are that you have taken onboard the care of your brother, who would have nowhere else to go and who is in very difficult circumstances, but I will deal with that as a separate issue.

41The first matter that I want to deal with is you, in terms of your reputation and in terms of this incident being out of character.

42It is something that I would very rarely do but in these circumstances I do propose to read significant parts of the references that have been tendered on your behalf.  The first was from a Mr Demotropolis at VJS Orchids for whom you have worked.  He said that you had told him that you had problems in the past but he believed that you had worked on them very hard.  He said,

'I believe his current charge is one which does not wholly represent his personality and behaviour.  Throughout my time knowing him I have never seen him act on any angry urges or act recklessly.  He was an employee who always showed to work early and left work late.  He would even stay back after hours to help with a few extra tasks'.

43He then went on to say that you are a very remorseful young man and he then said,

'And for him to have the upbringing he has had and to hold his head high says a lot about the young man's personality'.

44When you were about 18 you obtained employment with Rich River Meat Exports Pty Ltd.  You have remained with them and are clearly a valued employee and have been given promotion as time has gone by.

45Your background was one of a mother with drug issues, with mental health issues and as I understand you went to something like 14 different schools.  That is typical of people that we find in this situation.

46Your father you did not know until you were about 12 years of age.  It would appear that your mother had at least one violent relationship and you were subject to all the domestic violence and anger that goes with that.

47However, you managed to get yourself through with no, as I understand it, appearances in the Children's Court and no trouble with police.  You then obtained the employment that I have described with Rich River Meat Exports.  I am going to read the references from the people who run that business.

48It should be understood that that business is an abattoirs and employs a lot of people.  These are men giving these references who run such a business.  They are not bleeding hearts and they would have a great deal of experience in dealing with what might be known as hardened and difficult men.  For the three of them to have written these references I think speaks very, very highly of you and I take the content of them very, very seriously.  As I said, it is the sort of reference that does give a judge a proper sense of a person's character rather than the weeping type of material that I am sometimes provided with.

49In any event, Mr Smith, the plant manager said,

'I have known Josh McLean for eight years during his employment with Rich River Meat Exports in Tatura.  During this time I have seen a very young man work his way up from a meat packer to a very competent boner and saw man.  After achieving the highest position within our workforce level Josh then accepted a position as second in charge of our boning room operation nine months ago, which contains approximately 60 individuals.

I am very aware of why I am writing this reference and had long discussions with Josh about this matter.  The company is very disappointed in Josh's actions and there is no justification for it.  However, I am of the opinion this is well outside of his usual character.  Josh McLean shows qualities well above his young age bracket.  He is a very dedicated, reliable, punctual, consciences individual and his spreads this confidence throughout the workforce.  Josh is a key player in our future but needs to develop strong character within his personal life which I am very confident he will'.

50The next is from Mr Miller, who is in senior management at the Tatura abattoirs, which as I understand it part and parcel of the business I have described.  He says,

'My name is Leigh Miller, I am 36 years of old [of age] I've worked for Tatura abattoirs for the last 11 and a half years and have worked my way into a senior staff member of the company.  My qualifications' ‑ ‑ ‑

51Are then outlined and they are significant.

'I first met Josh when he started working for this company and I have known him now for the last seven and a half years.  During this time I have been his boss.  During this time I have watched Josh grow from a boy into a man and watched him and trained through all the processes in the my boning room from a labourer, all the way up to a saw man in a very short time.  He showed us that he was a very quick learner.

My relationship with Josh has been strictly a work one until the last 12 months when he found he had terrific leadership traits and has further his job and now turned it into a career by becoming the boning room supervisor and is excelling at the job.

Josh and I have had many sit downs since the incident has occurred and has opened up to me in a manner and I believe what he shows is complete remorse for the victim and is extremely sorry for what he did to the point where emotions while talking to him showed in the sign of sadness to the extent that I'm convinced that he knows that he done the wrong thing and knows he wouldn't do it again.

Two weeks prior to the incident Josh and I engaged in several deep and meaningful conversations as he realised he was losing his high school sweetheart girlfriend as she explained to him that their long term relationship was failing and a week later on just discovered the reason it was failing was because she'd gained feelings and began to see his long term best friend, which devastated Josh and also shocked all of his friends and work colleagues.

This devastation was multiplied after several incidents occurred [and we do not need to go into that for these purposes, but I accept that they are correct].  My opinion of Josh was very high before the incident and will remain high no matter what the outcome.  Josh has always been extremely loyal employee and supervisor in the time I've worked with him.  My beliefs are that Josh made a wrong decision based on the driving points being he'd lost his long term partner and his long term best friend both at the same time.

I also believe that Josh's actions were totally out of character and on the Monday after the incident Josh came straight to me.  He was as pale as a ghost and very emotional.  I could see he showed all the signs of remorse and empathy for his victim.  Josh is a great person and team member in our company and if his outcome isn't good he will be sadly missed'.

52The last of those references is from Mr Winters, who is the production manager at Rich River Meat Exports in Tatura.  He describes the land processing facility and I do not think I need to go to there.

'In the time he's been there he has had well in excess of 500 employers of all works of life.  Having such a big turnover in employees I've learned a lot about people and their nature.  When I first met Josh he was a light framed 18 year who was covered in tattoos.  I honestly thought that Josh would be a short term employee as I knew a little of his past and issues he'd had at the time.  How wrong I was.  In the eight years that Josh has worked under my supervision he has learnt many skills and has progressively moved up the line from a labourer to a butcher.  In the last 12 months he has taking on the role of the leading hand on the processing floor where he is excelling.

As long as I have known Josh I have never witnessed him lose his temper or treat anyone with disrespect.  Josh has always been polite and respectful towards me and all others.  He has taken part in running boning social club, organising events such as Christmas parties for his colleagues when there's been a good time had by all.  He has also proven to be one of the most kind hearted, caring and honest people I know; always helping others and putting himself out to lend a hand, which makes him well respected in and outside of the workplace'.

53That is going to be confirmed very shortly by the very powerful evidence given by the gentlemen from the Department of Health and Human Services on his behalf.

'Josh informed me in early August that hi long term girlfriend had left him and I could see he was struggling with his emotions.  Over the next few weeks Josh informed me of the break' ‑ ‑ ‑

54I do not need to go into that in this situation.

'Of difficulties that had occurred in respect of his belongings and his former girlfriends new boyfriend.  Josh told me he reported incidents to police but nothing could be done'.

55Again, I am not taking that any further.

'Sometime after all this Josh approached me and told me that he had made a big mistake, informed me of the incident and how he felt remorse for being involved in such a stupid act.  He was very upset when we were talking about it and I could tell immediately this was something that he never intended on happening but due to the recent events and the aid of peer pressure a minor intent to scare escalated out of control, resulting in a major mistake by those involved and can never be taken back.

Since the time of this incident Josh has taken steps to change his ways and grow to be a better person.  Steps in the form of lifestyle change, change of peers and an ongoing course to understand and control anger.  I believe this was a huge mistake on behalf of Josh, but we've all made mistakes in the past, big and small.  In my opinion this young man has accepted he has made a foolish mistake and taken actions to be a better person and ensure that he would never been involved in anything like this again.

Due to these actions my thoughts of Josh have not altered and he still has my respect and I still consider him to be a talented, caring and kind hearted individual'.

56I accept those testimonials for what they say and as I have indicated they provide very powerful evidence to me of the true nature of you, what you have done to endeavour to rehabilitee since and what you are like generally within the community.

57The family history is one which I do not need to go into a great deal of history with.  It is unfortunately common to us who have to deal in this jurisdiction.

58You had a difficult upbringing, your mother was only 16 when she gave birth to you.  She was in fact a - well, in effect a high functioning drug addict throughout your childhood.  The family has had extensive involvement with the Department of Health and Human Services.  You were in the care of your mother throughout childhood and the family was somewhat transient.  As I have indicated, you attended 14 different schools in Victoria and South Australia.  Your mother had numerous abusive relationships with men who lived with her and you.  As you grew up your mother often turned to prostitution to fund her habits.

59At the age of 12, as I have indicated, you met your biological father for the first time and he is a mechanic in Melbourne.

60Obviously, you were charged with all this in September 2017.  Your mother died of a drug overdose in August 2018, she was about 43.  Your stepfather, for want of a better term, who had been in and out of the scenario over that period of time, was a very transient man with an extensive criminal history and had been in and out of gaol.  At some stage he tried to take care of your brother but as it was explained to me by the gentleman from the Department of Health and Human Services that was a total failure and he was unable to really do much for him.  It is a situation where, again, there was a stabbing at the house last year and your younger brother was caught up in all that.

61You, in circumstances where, as I have said, you have now been working as an adult since you were about 18 in a situation where one - sorry, which I think I can probably say very, very unusual with the set of circumstances and a background like that.

62You do have a partner who is studying, who is dependent on you, at the present time and hopefully into the future.  You have a younger brother, who is 15, who is also living with you.  You are responsible for them and you provide a very good role model for your younger brother who had been in real difficulties and people were having a great difficulty, in terms of finding somewhere for him to live.  It is a situation where if you were to be incarcerated the odds are that he would have to go into residential care, and I will be dealing with this as a separate concept in a moment.

63I simply point out that residential care is the breeding ground, I would say, probably about a third of the work the County Court does in the Latrobe Valley and I am well aware of what can occur.  If you were to be incarcerated the first thing I would take into account is that it would be a great burden on you to be in gaol the dangers that your younger brother would be in without your support and knowing the difficulties that your dependent partner, who as I say, is studying nursing would be in.  They are independent matters and I take them into account, in terms of their effect on you.

64Clearly in this situation the prospects of your rehabilitation are very good indeed.  Corrects have determined that you are a low risk of re-offending and I agree with that as well.  They also determined, as was my view, that you really do not need any other forms of treatment.  That you have undertaken the anger management course and you are doing everything you can to be a reliable, responsible member of the community.  I think the risk of you re-offending is low and I have no difficulty accept that assessment as well.

65So in this situation what we have, without going into even what I am going to go into next, is that it is a situation of a serious offence, which ordinarily would call for a custodial sentence.  Your personal circumstances are impressive indeed.  I, as I sit, and I probably have, as I sit here I cannot remember testimonials that have had more affect upon me, as country person, reading than what I have read in this case.

66I consider that that material alone that has been put before me would justify a court in not imposing a custodial sentence.  I look to the words of Callaway JA back in 2001.  To gaol you at this point in time, put your work - career - in jeopardy and to put others in jeopardy that you would then be conscious of I think would be an injustice.  You are entitled to call in aid everything, that somebody with your very disadvantaged background, has been able to achieve and you are the antithesis, I suppose, of what is described in Bugmy.  Those matters all go very much in your favour and I think justify the imposition of a community corrections order by themselves.

67In any event, in this situation, having heard the material, the way you have conducted yourself, the delay and all those other matters that I have referred to, I would consider that this is a situation where the circumstances are such as to bring about or cause a judge to have a great degree of sympathy and employ mercy in any event.  I say that as mercy towards you, I am not saying that, at this point in time, as mercy for any other person.  That is a different test and I will refer to it in a moment.

68I am boosted in my confidence in say that by - obviously there is a number of decision about all these matters.  The first I refer to is R v Tomngeun where it is said that the,

'Sentence imposed in the present case took account of the mitigating factors mentioned above, the respondent's limited criminal record [you have none], His Honour's favourable view of the respondent's prospects rehabilitation [and I say I think yours are excellent].  In the circumstances of this case His Honour was entitled to show mercy to the respondent and to take account of the fact that he was the full time carer of one of his daughters and he shared to care of his other daughter with her aunt.  As this court recognise in the DDP v Leech, it's particularly important that this court should not devalue or deny the right of a sentencing judge to act mercifully in a case where it seems to the judge to be an instance where an opportunity for reformation of the offender ought be grasped.  That, after all, may be a decision which rebounds very much to the benefit of the community.  A sentencing judge should be astute to investigate whether a non-custodial disposition is to be preferred, even in the case of a serious offence, if in the long term the community's interest will be served by that course.  This court should seek to promote public understanding of the fact that apart from the interest of the individual whom it's sought to rehabilitate an important interest in itself.  There's a vital community interest in maximising the prospects of rehabilitation of an individual who's convicted, been convicted, of a serious crime'.

69That obviously refers, not just to you, but in my view to your younger brother as well, who was in difficult circumstances and had come to police attention.  Since he has been under your care there has been no police attention and indeed the community benefit from your rehabilitation, in the sense that it has taken him out of what, I would have thought, was very likely going to be a criminal milieu.

70Again, as I have said of the other authorities, those words in Tomngeun, in my view, are very apt in these set of circumstances.

71Also in the more recent decision of R v Bradshaw, there is a paragraph which I think is applicable here,

'Parsimony requires sentencing judges to give proper consideration to non-custodial options.  As this court stated in Boulton [and I indicate I am not going to go through Boulton in detail, we all know what it says] a community corrections order provides a flexible mechanism for imposing a sentence that is both punitive and rehabilitative, which can be fashioned to address the particular circumstances of the offender and causes of the offending and to minimise the risk of re-offending by promoting the offender's rehabilitation.  As the order of seriousness of offending conduct increases so that the likelihood that such a disposition will be appropriate diminishes.  But it may remain an option that is open, even in cases of very serious offending'.

72And then it goes on,

'The error to which His Honour made, with respect, was to view the gravity of the offending to be of such an order that the sentencing range could only include an order that involved confinement'.

73I take those words in Bradshaw into account and I think that whilst this offending is serious it certainly, in my view, without taking it any further, fits within a circumstance where a community corrections order with a very significant number of work hours would be sufficient punishment.  The rehabilitative aspects that would give would be not placing you in a custodial environment and the ill affect that that would have upon you, and the fact that you are doing what you can to rehabilitate yourself as well as rehabilitate your younger brother.  So in all those circumstances, it is a disposition I would give in any event.

74There is one more leg to this argument and that is the prospect of hardship on others.

75Again, I am going to read this in full because I think it is of such significance.  Tendered on your behalf was a report from Mr Dasantana, which has been with DHS, or DHHS as it is now, for some 20 years.  He refers to you and says the DHS - I will keep calling it that because I am old fashioned - have known the family for years, since 2006 as I understand.  That family, he said of the past five years, experienced significant trauma and challenges.  Child protection's had involvement with the family in this situation since April 2014 and there have been a total of 17 reports in that time, just in relation to Josh's two younger siblings; Jessie, who is 15 and Emily, 17.

76He says,

'Over this time Josh has provided car for both his siblings with the earliest episode being July 2016, with both Jessie and Emily living within a chaotic family home.  They were often exposed to significant instances of family violence, substantial substance abuse and parental mental health issues.  This environment often led to Jessie and Emily being displaced or a need of stable, safe and nurturing support.  When the Department approach Josh [that is you, obviously] he readily opened his home to his siblings.  Emily remained there for a short period of time before obtaining her own accommodation.

In early 2018 Jessie was residing at home with his mother while placed on a family perseveration order.  In 2018 Jessie was exposed to two significant traumatic events in his life'.

77You obviously were aware of these yourself as well as what he indicated.

'He was a member of the household when there was a violent incident in the home which resulted in an individual being stabbed and his at that time stepfather being incarcerated.  Not long after that Jessie's mother, who he was strongly connected to, passed away from suspected overdose'.

78It is probably more than suspected, she was in a mental institution accommodation at the time.

'Jessie then moved from one place to another for a few months that included a short period of time with his biological father, but that was no successful due to the father's mental health, periods of incarceration and the choice of accommodation his father would often frequent being unsafe or inappropriate.  The Department held significant concerns for Jessie's wellbeing and once again approached Josh for his assistance'.

79And I point out, this is all happening after you had been charged with this serious offending and are sitting under a mandatory sentence at that point in time.

'Jessie at this time was struggling with the loss of his mother and the infrequent support of his father.  Jessie was technically homeless and going from one place to another with his father.  Josh agreed to become the primary carer for Jessie and provided him with a safe an stable home environment.  Jessie has been in Josh's full time care since 5 January 2019.

Under the mentoring and guidance of Josh Jessie has really thrived and developed to a solid young man.  The changes to Jess and his mental wellbeing are been huge.  He presents as overall healthy and happy, is no longer anxious about where he will sleep or where his next meal will come from.  He knows he can rely on his brother for support and guidance.  Josh has been able to link Jessie to full time gainful employment and Jessie is still currently employed in this role'.

80As I understand it, that employment is in fact with the company that you are with.

'The Department has been impressed by the mentoring and guidance that Josh has provided to Jessie.  The Department is fully aware of Josh's current charges.  On making the placement with Josh earlier this year Josh was open and honest about the offences, he expressed his remorse and embarrassment in respect to the incident.  The Department was required to complete a criminal record check in respect of Josh becoming the primary carer.  As a result of the positive result the matter has to be managed up to senior management for the placement to be endorsement.  The assessment was that this incident was an isolated incident, unfortunately involving alcohol and an assault.  There is no other criminal history in respect of Josh.  Given all the trauma already experienced by Jess it was advised it would be in his best interest to reside with his brother in a stable and caring home.

At this time Jessie has made considerable gains in his emotional and mental health due totally to the support and guidance provided by his brother, Josh.  The Department continues to support Jess in Josh's care and will be extremely concerned for Jessie's wellbeing should this relationship and placement cease.  There is no other family option for Jess.  Given his age, he would probably be placed in a residential care option [I have already made my views on residential care apparent, I would have thought] if one was available'.

81And I am told on oath it would not be - sorry.  It probably would be.

'In this environment his behaviours and overall health would digress very quickly.  It is my assessment that he would commence risk taking behaviours that would potentially place himself at risk of significant harm.  While not wanting to sound as if I'm minimising the severity of the offences before this court, I would respectfully indicate to the court that Josh is currently Jessie's on positive support and resource.  Without him being available Jessie's future would be jeopardised considerably.  This young person has suffered so much trauma [I think he probably means, "These young persons"] so much trauma in their life already it would be just devastating to lose his mentor as a result of a period of incarceration.  I'd respectfully request the court to consider all other options before that of a term of imprisonment [which I am bound by law to do anyway] for Josh as this would ensure the ongoing positive development and safety of Jessie McLean'.

82I will go back to the words of Callaway JA and what he said about what can occur with delay.

83In the two years since this occurred you have behaved in a way that can only be described as laudable and you have taken on your younger brother in those circumstances.  What is put is an additional factor in all this and my decision is not dependent upon, but would be augmented by to a very significant degree if need be, that it would be a devastation for your younger brother for you to be incarcerated.

84I have read the report and during the course of the plea Mr De Santa-Ana gave sworn evidence before me and I found him to be a very persuasive, very truthful and very forthright and open witness.  He indicated, clearly, that there really is no other option for Jessie in these circumstances.

85Your girlfriend lives at the unit, she dependent on you.  The Crown suggests that he might remain living there.  How is she supposed to take him over with no financial support and you not being there?  I do not think that is a reasonable option.  There is an aunty who clearly has played a very strong part in this family, endeavouring to assist it and Mr Dasantana pointed out that she has already taken on a massive role and to have to take on Jessie as well just would not work.  He thinks that the odds are high that it would have to be a residential placement.  And as he pointed out as he did in his letter, as I know from my experience, the contamination in a residential unit starts immediately and deterioration follows very shortly thereafter.  People might not have a full understanding of the consequences of putting a child into that environment but those of us in the criminal law who practice in this area are very well aware of it.

86As I say, I am not going to repeat all the evidence that was given.  Mr De Santa-Ana confirmed what was in his report, confirmed that there would be no other guardian to take his place, confirmed that the progress with Jessie has been amazing, confirmed that Jessie has been able to work and keep at his work.  And when asked if that was unusual, said it was the first time in 20 years that he had actually seen it occur.  I have got no doubt that is correct.

87You yourself are still going through a grieving process and that you have been able to take on your younger brother, take on very adult responsibilities.  He pointed out that under your mentorship that Jessie had accommodation, was happy, was healthy and was stable.

88He pointed out that there had been a situation where the school had endeavoured to keep - at Wanganui had endeavoured to keep in touch with Jessie and everybody seems to be trying to do something about it.  He pointed out that with a young male teenager foster care was simply not an option.

89He pointed out with respect to you that it was his view that but for your involvement with this family and trying to save it all the siblings would have ended up in residential care and I think you are entitled to call that into account at this point in time.  He described you as a strong, reliable mentor.

90It seems to me that this is a situation where the consequences to another, that is your younger brother, if you were to be incarcerated would be extreme. I re-read Markovic last night.  It just simply confirms what the common law always was, that the circumstances have to be exceptional and I can indicate for the transcript I have not found exceptional circumstances for years.  But I really do believe this situation with young Jessie passes the threshold.

91For a boy with the background that he has had, the difficulties that he had, he was clearly falling into areas and peers that would be coming concerned with police.  For you to have put him in a situation where his life can end up being restored, it would be devastating for that to be rent asunder.  At the age of 15 I am not going to put him in a situation where he has got to suddenly start from scratch, with all the anxiety and difficulties that that would occur.  I do indeed think that these circumstances are exceptional, truly exceptional.

92I do not take into account the situation of your girlfriend who is living there, I do not regard that as such.  But in this world of danger, which so many young people seem to live, I think - I will say no more than that other than to say or repeat, I regard these circumstances as truly exceptional.  There is nowhere for him to go.

93Having said that, as I have indicated already, I will still give the disposition in any event but I will just add that just so there is a ruling from me on the point.  It just adds to the certainty I have that this is the appropriate sentencing option.

94I am not going to go through all the evidence that was given by Mr De Santa-Ana.  In the event of this going anywhere else that will be clearly available.  I will just simply point out again, it is a very powerful and very strong, very open and very frank witness and I am taking what he told me very, very much into account.

95Having said all that the situation is that I have had you assessed for a community corrections order, they found you acceptable and they say that you are a low risk of further re-offending.  They are quite happy with a work hours only and that obviously is punitive.  I am not going to go through all the details of Boulton.  It will be with conviction, which in a sense is a punishment in itself and it will be for an extended period of time.

96I do not think there is much more I can say in regard to this matter, other than it has taken a long time to come on through nobody's fault and you have been exemplary in your conduct since it occurred as well as before, it would seem.

97So on those two charges, if you agree, be placed on a community corrections order.  It will be with conviction.  The number of work hours to be put on that order have to be of sufficient significance to show that any person looking at the criminal history will know that it was not a trivial matter, that it was indeed a serious matter and accordingly I am going to make the amount of work hours 400.  That is a lot.

98In these circumstances, again, to make it clear that this offending is not to be regarded in any way, shape or form as trivial I will make the period of the community corrections order four years.

99Yes, if you would not mind going with my associate to have that signed, thanks, Ms King.

100That order's made.  Can just stand up for a second, Joshua.  You understand that if you breach it you get brought back before me for sentencing.

101OFFENDER:  Yes, Your Honour.

102HIS HONOUR:  All right, I will re-sentence you, all right?  Now if that happens you have got to understand, I am sure you do from the way you have spoken about it and the way you have spoken about it since, this sort of stuff is not on.  You can end up with dead bodies on the floor from this sort of thing.  You have got to understand if you do breach this or disregard it and get brought back for sentencing I will have no option, you will be going in.

103OFFENDER:  Yes, Your Honour.

104HIS HONOUR:  Do you follow that?

105OFFENDER:  Yep.

106HIS HONOUR:  All right, you can sit down now, thank you.  In terms of 6AAA, it is a bit meaningless here, I do not know what I would do.  I think I should simply say this - I think all I can say is this:  but for the plea of guilty - sorry.  Had the matter gone to trial I would probably still, with him, have given a
non-custodial disposition.  I cannot put it any higher than that.  The danger is, of course, I have got to hear the other people and I do not want this to be used as some sort of - if you understand what I am saying?

107MR BROWN:  Yes.

108HIS HONOUR:  I do not want to suddenly get caught after a trial where, 'Hang on, you said if you had run it you would have done this'.

109MR BROWN:  Yes.

110HIS HONOUR:  I do not know what I would have done.  There would have been five of them in the dock, it would have been a whole different ball game.  And I am putting this on transcript, I do not want somebody representing any of the co-accused who may ultimately end up pleading or being found guilty to try and use this 6AAA as any form of parity.

111MR BROWN:  Yes.

112HIS HONOUR:  I am just trying to make that really clear.

113MR BROWN:  I think the transcript will make that ‑ ‑ ‑

114HIS HONOUR:  That is what I am doing and I just do not want ‑ ‑ ‑

115MR BROWN:  Yes.

116HIS HONOUR:  ‑ ‑ ‑ anyone to just come up later on and say they did not understand that.  It is up to them what they do and I do not know what I would have done if he fought it out, anything could happen.

117MR BROWN:  I think if it's a CCO of more than two years you're required to give a section ‑ ‑ ‑

118HIS HONOUR:  No, that is what I have just done.

119MR BROWN:  Yes, well ‑ ‑ ‑

120HIS HONOUR:  Yes, I know.  But I am not - all I can say is that I believe I would have given him a non-custodial community corrections order.  Now, I do not actually have to do it anyway.  I mean, it does not invalidate the sentence.  But what I am trying to say is I have got to do it, but I want to make it clear that the plea of guilty, it is not a situation where but for the plea of guilty I would have gaoled him.

121MR BROWN:  Yes.

122HIS HONOUR:  I do not know what I would have done.  And that is what is really concerning me that that will come back to bite later on if I do not explain it fully.  You are dead right, I have got to.

123MR BROWN:  Yes.

124HIS HONOUR:  According to the Act.

125MR BROWN:  Yes.

126HIS HONOUR:  But there are times when it is intellectually impossible to do and the doing of it - some 6AAAs come back to haunt people.

127MR BROWN:  Yes.

128HIS HONOUR:  When they are done off the cuff.  Thank you for that, Mr Brown.  I understand exactly what you are saying to me.

129MR BROWN:  Yes.

130HIS HONOUR:  And I hope the transcript reveals the way I see it, yes.  You all right?

131MR BROWN:  Yes.

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