Director of Public Prosecutions v Montgomery
[2018] VCC 196
•27 February 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-17-00658
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| STEPHEN MONTGOMERY |
---
JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 27 November 2017 and 19 February 2018 | |
DATE OF SENTENCE: | 27 February 2018 | |
CASE MAY BE CITED AS: | Director of Public Prosecutions v Montgomery | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 196 | |
REASONS FOR SENTENCE
---
Subject: CRIMINAL LAW
Catchwords:
Legislation Cited: Sentencing Act 1991
Cases Cited:
Sentence:
---
APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Ms C. Duckett | Office of Public Prosecutions |
| For the Offender | Mr J. McQuillan | Paul Vale Criminal Law |
HER HONOUR:
1 Stephen Montgomery, you have pleaded guilty to one charge of aggravated burglary, one charge of being a prohibited person in possession of a firearm and one charge of armed robbery. The maximum penalty applicable to the offence of aggravated burglary is 25 years’ imprisonment, prohibited person possessing a firearm, 1200 penalty units or 10 years’ imprisonment and armed robbery, twenty-five years’ imprisonment.
2 These crimes arise out of events which took place on 17 May 2016. It is not necessary 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 so summarised by the prosecutor and discussed during the course of your plea hearing. It is sufficient for present purposes to simply say the facts in this case are most disturbing.
3 I turn to a brief summary of your offending.
4 At the time of this offending you were 28 years of age. You did not know the victim, Andrew Davies. Mr Davies lived alone at his residence in Boronia. He was 33 years of age at the time of this offending, and a painter, employed by the same company for approximately thirteen years. On the night of 16 May 2016, he was home alone, and went to bed about 11.30pm.
5 At approximately 4.30am on 17 May 2016, you and an unknown male attended at Mr Davies home. At that time, Mr Davies was asleep in the master bedroom at the rear of the house.
6 You and an unknown male climbed over a side fence and walked around to the rear of property. You then approached the doors at the rear of the house near the master bedroom. The presence of you and the unknown male caused Mr Davies’ dogs to start barking which, in turn, woke up Davies.
7 Davies got out of the bed and walked to the lounge room, thinking it was later than it was and that he had slept in. He thought the dogs were barking at his co-worker who would usually collect him for work at about 5.10am. He noticed one of the dogs barking at the back door, which was not where his co-worker usually attended.
8 Davies saw the exterior sensor light come on and the shadows of two figures run towards the door. He then saw you and your co-offender at the French doors armed with longarm firearms (Charge 2).
9 You and the co-offender used the longarms to smash the glass windows in the French doors. Davies saw two gun barrels come through the broken windows in those doors. You reached through the smashed glass window and tried to unlock the door, cutting your arm on the glass while doing so. You left traces of blood on the broken glass, the timber door frame, and a venetian blind inside the French doors. You were unable to open the French door as it was deadlocked.
10 Both you and your co-offender yelled at Davies, telling him to open the door. You were both pointing your firearms at him. You and your co-offender had your faces completely covered with dark material, and both of you were pointing your respective longarm firearms at Davies while yelling at him. Davies felt compelled to unlock and open the French door and you and the unknown male entered the house (Charge 1).
11 Mr Davies walked backwards away from the two of you and fell into a seated position on the couch. One of you pointed a firearm towards his chest and told him not to look up. Davies followed the direction and sat with his head down. The two of you then made demands of Davies, asking “where’s the drugs, where’s the money?” Davies responded he did not have any drugs or money.
12 One of the two of you then took Davies by his t-shirt, pushed him into the master bedroom, and told him to get down on the floor near the foot of the bed. Your co-offender stood guard over Davies while you rummaged through the drawers of his bedside table. You left blood on the fitted sheet of the bed and on the bedside drawers.
13 Throughout this, both of you continued to yell at Davies, demanding to know “where’s the money, where’s the dugs”. Davies again responded he did not have any money, did not have drugs and that he did not know what you were talking about.
14 Your co-offender then ordered Davies to put a t-shirt in his mouth, and he complied. Your co-offender then used electrical tape to secure the t-shirt inside Davies mouth and that same unknown male wound electrical tape around Davies eyes and head to prevent him from seeing. Davies could hear you leave the master bedroom.
15 Davies remained lying on the floor with his eyes and mouth covered until he was ordered by your co-offender to place his hands behind his back. Your co-offender then used a pair of white braces which were in the bedroom, and used them to bind Davies’ wrists together.
16 During this time your co-offender kept saying, “where’s, the money, where’s the drugs”. Your co-offender then started threatening Davies, that he would break his fingers one by one if he did not tell him where the drugs and money were and that he should not sell drugs to kids. Davies was struggling to breathe and talk. He said he did not have anything and he did not sell to anyone.
17 You and your co-offender then left Davies house, taking a number of items referred to in paragraph 16 of the Prosecution Opening (Exhibit A).
18 A Samsung mobile phone and power tools were owned by Davies, the computer equipment and Ute belonged to his employer (Charge 3, armed robbery).
19 One of Davies’ neighbours woke at about 4.30, when she heard banging at Davies’ house. She heard Davies’ Ute drive off slowly at about 5.00am.
20 The Mitsubishi Triton Ute was subsequently found in an old quarry off Sylvia Creek Road in the Toolangi State Forest, completely gutted by fire.
21 None of the other property stolen from Mr Davies’ house was ever located or recovered.
22 Davies regained consciousness and lay still for about fifteen minutes, listening to hear if the two of you were still present. When he thought you had gone, he freed himself from his bindings and looked for his mobile phone to call 000, realising it had been stolen.
23 Davies then looked into the adjacent lounge room at the back of the house to check if the two of you were there. He found a metal pole, and he crouched down against a wall in a state of shock, waiting for his co-worker to arrive to collect him for work. While crouching against the wall he noticed the Ute was not in the carport and other items had also been taken. Davies’ co-worker did not arrive, and when it became daylight, Davies went to a neighbour’s home at about 7.15am and police were called.
24 Police attended Davies’ house at about 7.25am. As I discussed with counsel at your further plea hearing on 19 February 2018, your offending occurred over a relatively lengthy period, approximately three-quarters of an hour.
25 Your DNA was found at the scene.
26 You were interviewed by police on 8 September 2016 and denied knowing the premises at 34 Lockwoods Road, Boronia, and denied ever attending there or knowing Davies.
27 Aggravating features of this offending are that you were on a Community Correction Order at the time. I stress, you are not being re-sentenced for those offences for which you were placed on the Community Correction Order and I understand that re-sentencing has, in fact, occurred. Rather, the relevance is that you committed the offences before me while subject to a Court order. A further aggravating feature was your use of disguise. Further, that your offending occurred in company. There were also threats made to break the fingers of the victim, albeit I accept not by you, but you were there acting in concert. Further, there was an element of pre-planning in that you took weapons and disguises to the victim’s home.
28 The prosecutor, Ms Duckett, in her opening submissions briefly referred to your criminal history which commenced in 2008, in particular, relevant offending from approximately your May 2013 court appearance, including possession of a prohibited weapon which, from the police records, indicate was an imitation pistol.
29 Ms Duckett referred to your appearance at Court on 20 November 2013 which involved a search of your property. A longarm weapon which was supposed to be there was missing.
30 Regarding your attendance at Court on 16 October 2015, I was told that involved you having possession of an airgun and also a shotgun, the latter found disassembled. The prohibited weapon you had at that time was a set of knuckledusters.
31 Ms Duckett referred to your previous breach of Court orders, including suspended sentence and correction orders.
32 By way of chronology, it took some time for this matter to come to court for your plea hearing on 27 November. On 18 November 2016, you did not attend Court. On 24 November 2016, a prosecution remand application was granted. A bail application was subsequently withdrawn.
33 On 17 January 2017, at the second committal case conference, you sacked your lawyers and new defence solicitors required time to read the brief.
34 On 31 March 2017, a contested committal hearing occurred in relation to all of the charges you then faced, and you entered a plea of not guilty to all charges. It was not until 27 September 2017 that a further plea offer was made to the prosecution, with the matter finally resolving on 10 October 2017. You were arraigned on the plea indictment and entered pleas of guilty on 20 October 2017.
35 You have admitted a number of prior court appearances. You first appeared at the Ringwood Magistrate’s Court on 13 May 2008, on exceeding the prescribed concentration of alcohol, driving while disqualified, and other driving offences. You received a 4-month Intensive Correction Order. On appeal on 4 September 2008, the appeal was allowed and you were convicted and fined $1,200 and your licence disqualified for 24 months.
36 You next appeared at Ringwood Magistrate’s Court on 30 May 2013 on exceeding the prescribed concentration of alcohol and a number of driving offences in addition to carrying/use a firearm under the influence, for that offending you received a 3-month wholly suspended sentence for a period of 12 months. For some of the offences you were, with conviction, fined an aggregate of $1,200.
37 You attended the Melbourne Magistrate’s Court on 9 July 2013 for possessing amphetamine and failing to answer bail and, without conviction, the matter was adjourned to 9 July 2014. You also paid $200 to the court fund.
38 On 25 November 2013, you appeared at Ringwood Magistrate’s Court charged with driving while suspended, four charges of handle stolen goods, two charges of failing to answer bail, failing to store a Category A/B longarm correctly and intentionally damage property. For those offences you received a total effective sentence of 3 months’ imprisonment. On a number of the offences you were, with conviction, fined an aggregate of $1,200 and for some other offences, an aggregate of $500.
39 You next appeared on 16 October 2015 on a charge of contravening the Suspended Sentence Order imposed on 30 May 2013. No further order was made. On that same day, at Ringwood Magistrate’s Court, you were also dealt with for a number of other offences, including the retention of stolen goods, theft, exceeding the prescribed concentration of alcohol, unlicensed driving, two charges of prohibited person possessing a firearm, possession of cartridge ammunition without a licence or permit, possess, use, carry prohibited weapon without exemption or permit, three charges of failing to answer bail, criminal damage, assault police and possess Cannabis, amongst other charges. You received a term of 3 months’ imprisonment, and your licence was cancelled. You were also placed on a Community Correction Order for a period of 12 months. The offending before me which occurred on 17 May 2016 was committed during the operation of that Community Correction Order.
40 I gather your co-offender is yet to be located and charged and, therefore, principles of parity do not apply when sentencing you.
41 The victim of your offending has declined the opportunity to make a victim impact statement. I do note, however, the final paragraph of his statement sworn 17 May 2016. At that time he felt emotionally and physically exhausted, and was depressed and anxious. He did not know how he would mentally deal with what happened.
42 Your counsel, Mr McQuillan, provided a brief written outline of his plea submissions and addressed those during the course of the hearing on 27 November 2017 and 19 February 2018.
43 He ultimately sought an adjournment as he wanted the opportunity to pursue a further report which might address, as I understood his submissions, difficulties you may have in custody. While he was not “closing the door” on the possibility of a nexus between your offending and mental health issues, he conceded there would be some difficulty in that argument given your use of methamphetamine at the time of this offending. In that regard, I briefly discussed Wright v R[1] and the relatively recent decision referred to by Ms Duckett of DPP v Davis[2].
[1] [2015] VSCA 333
[2] [2017] VSCA 341
44 In brief, on 27 November, Mr McQuillan referred to your plea of guilty, albeit accepting your plea of guilty was entered late in the piece and after a contested committal. As I discussed with him, however, your plea of guilty is a sentencing consideration in mitigation of your sentence, and you are entitled to have the fact of your plea and timing of it taken into account in your favour, and I do so.
45 The community has, by your plea, been spared the time and cost of a trial. While I note the victim of your offending was required to be cross-examined at the committal hearing, he has not had to re-appear at a trial and give evidence again.
46 As I discussed, also, with your counsel, there has been some delay in your plea of guilty being entered in this matter. I nevertheless accept your plea of guilty is indicative of some remorse by you. I question, however, the extent of your remorse, given that the matter proceeded as a plea of not guilty initially and a contested committal. I also note that when first questioned by police, you denied any involvement in this offending.
47 Mr McQuillan submitted that, in essence, the thrust of his plea was going to be directed towards your mental health and in particular, as I have said, your time in custody. He was hoping to rely upon the restatement of the R v Tsiaris[3] principles in Verdins[4], specifically Principle 6.
[3] [1996] 1 VR 398
[4] (2007) 16 VR 269
48 Mr McQuillan submitted at your initial hearing on 27 November, that your prior criminal history, with the exception of one appearance in 2008 and subsequent appeal, had been subsequent to your motorcycle collision in 2011. In relation to your drug history, he said you self-medicated as a result of that collision.
49 Turning to your work history, Mr McQuillan submitted, in addition to his written outline of submissions, that you left school in Year 11 and commenced twelve months of your apprenticeship as a mechanic. Being short of money as a result of the apprenticeship, you moved to J & B Fencing driving tractors for a couple of years. You then completed the apprenticeship. Three weeks after your apprenticeship concluded you were involved in the motorcycle collision. Thereafter, you worked with either your mother in her landscaping business, or brother in his landscaping business. You found it difficult to maintain work. I was told work with your mother or brother was available to you upon your eventual release from custody.
50 Your mother was currently renting a property in Ferntree Gully and when you are released you plan to live with her. In Court on both 27 November and 19 February to support you, was your sister.
51 Whilst in custody you had been performing billet work ‘on and off’. I was told in November that there was a new factory commencing at Margoneet on the day of that hearing, and you were then hoping to work there. At your hearing on 19 February I was told you continue to work as a billet.
52 Whilst in custody you are taking medication, Gabapentin and Endep. You were also intending to see a physiotherapist, I was told, at Margoneet.
53 I very briefly discussed with Mr McQuillan your current circumstances. While having been on remand for these offences since 8 September 2016, you have served two sentences. You have been in custody since 21 June 2016.
54 At Ringwood Magistrate’s Court on 7 November 2016, you were sentenced on charges of theft of a motor vehicle, assaulting an emergency worker, which I was told was you evading police arrest, five charges of dishonestly receiving stolen goods and contravening a Community Correction Order, to which I have previously referred. You were sentenced to a term of imprisonment of 5 months, with 145 days declared as pre-sentence detention.
55 As at 27 November you were then serving a sentence imposed at Melbourne Magistrate’s Court on 8 August 2017, involving two charges of theft and one charge of possessing methylamphetamine, for which you received 6 months’ imprisonment.
56 What that ultimately means is, at the time of your further plea hearing on 19 February 2018, you had been in custody for 267 days, up to and including 18 February 2018, to be declared as pre-sentence detention relevant to the offending for which I am to sentence you. I do, however, note you have been in custody since June 2016, and as such the principles in R v Renzella[5] apply. I have reduced your sentence to reflect the time you have already spent in custody prior to being sentenced for the matter before me, albeit not as a direct mathematical equation.
[5] [1997] 2 VR 88
57 I was advised by Mr McQuillan there were no matters pending.
58 Mr McQuillan, in his written outline of submissions, provided further information. You are 29 years of age at sentence and were raised in Healesville by your mother after your parents separated when you were about 3 months old.
59 You are the youngest of three siblings. Your relationship with your father has never been particularly good, and in the last three years you had not spoken to him at all.
60 You attended Badger Creek and St Bridget’s Primary Schools, then Healesville Secondary School, Monivae College and Portland Secondary School.
61 That motorcycle collision occurred while you were recreationally trail-bike riding. As a result of the collision, you underwent lengthy and extensive rehabilitation. While you ultimately managed to regain full use of your limbs, you retained ongoing chronic pain to your neck and upper right side of your body.
62 Your employment opportunities since the collision had been dramatically reduced, as you found it difficult to work for any period longer than a few hours at a time.
63 You had been prescribed various medications over the years in an attempt to manage your chronic pain.
64 In a report prepared by psychologist, Ms Lisa Jackson, dated 20 November 2017, the author noted that your presenting symptoms had resolved within weeks, which was "suggestive of a moderate to severe TBI".
65 You acknowledged that since that collision you had self-medicated by abusing alcohol, methamphetamine and cannabis, as well as using prescribed medication you have been given from time to time.
66 Mr McQuillan submitted that whilst you did have prior convictions for possession of weapons and had been sentenced to short periods of imprisonment in the past, you did not have any prior history for violent offending. Your offending before me, however, I regard as very violent and serious. You do, however, as I have said, have a number of prior offences relating to firearms.
67 I turn to the report prepared by Ms Lisa Jackson, Psychologist, dated 20 November 2017, who assessed you on remand on 9 November 2017.
68 In her report Ms Jackson provided further details regarding your background and history, including loss of contact with your father in the past three years and your parents' separation when you were very, very young. For a time when you were 16, your mother moved to Ferntree Gully to be close to her workplace. You remained in Healesville, wanting to complete your secondary schooling, and at that time moved in with your father. You left home when both of you started arguing. You then went to live with neighbours until you finished school, then back to your mother while completing your apprenticeship.
69 After the motorcycle collision you became restless and travelled between South Australia, Sydney and Victoria to find work, but were generally not successful. You had been living, most recently, in the family home in Healesville just prior to your arrest for the offending before me. Further details were provided of your education and employment history.
70 Turning to your medical history, you described being assaulted when you were 18. Your description of this incident, Ms Jackson thought, ‘suggested “a mild traumatic brain injury” and included some probable loss of consciousness. As previously noted by Ms Jackson, you did not record any history of persisting neurocognitive deficits in the months following this incident, suggesting those presenting symptoms resolved in weeks, persisting with a mild traumatic brain injury.
71 You described difficulty finding the appropriate mix of medication to manage your pain and had been on different combinations. You admitted to misusing those drugs. Further, you resorted to the use of alcohol and methamphetamine to treat your pain.
72 You reported you had some neurological testing following the collision, but however did not know the result.
73 You were also prescribed Endep, an antidepressant medication, following the collision, which you continued to take.
74 You reported a history of alcohol, methamphetamine and cannabis abuse. Regarding your alcohol use, you described this as becoming problematic at the age of seventeen, when you came to Melbourne and started your apprenticeship, because you had money to socialise. After the collision in 2011 you started to drink up to a slab of beer daily, which you maintained for several months. You said you managed to reduce that use and were drinking on a fortnightly basis up until the current charges.
75 You describe using cannabis off and on up until 2016, when you were remanded in custody.
76 You described smoking methamphetamine from the age of 24 to help manage your pain. Your use increased to daily in about 2012, with some periods of abstinence up until you were remanded in September.
77 You have had minimal drug or alcohol treatment, confined to one AOD session in Ringwood in 2016 as part of a former Community Correction Order.
78 Regarding your offending, you said some months prior to the charge you noted a general deterioration in your functioning. After being released from custody onto the Community Correction Order in 2015 you lived and worked with your brother. During the initial months you were able to maintain limited alcohol use and were compliant with medication, however, began to experience problems with fatigue and stress. You were drawn to former substance abuse with peers and started binge-drinking on weekends and using Methamphetamine. This quickly increased to daily patterns and in the two weeks prior to committing the offence you had minimal sleep.
79 Ms Jackson noted that between your court appearance in 2008, there was no other history until 2013, at that time your offending involved charges and convictions for drug and driving offences, property and firearm offences, assault police and others. Subsequent offending recorded from 2013, in her opinion, ‘appeared’ directly linked to your drug problems, your TBI and your neurocognitive deficits, which impacted on your judgement and decision-making. In my opinion, however, does not explain your offending prior to 2011 (the collision).
80 You recognise your history of substance abuse has impacted on your offending behaviour. You were also able to identify some pro-social beliefs. You had empathy for the victim of this crime, stating that “people have a right to feel safe in their homes”.
81 In Ms Jackson’s opinion, you identified an association between this offending and substance abuse problems and deterioration in your mental health in the weeks preceding the offence and the neurocognitive problems.
82 In the opinion of Ms Jackson your history revealed a direct association between substance abuse and Mood Disorder, and neurocognitive deficits after the collision in 2011. You fitted the diagnostic criteria for Substance Abuse Disorder at the time of this offending. You had become reliant upon alcohol to manage your depressive disorder and cannabis to treat pain, and methamphetamine abuse dominated your life from 2012 until you were remanded in custody.
83 Your substance-abuse problems affected your ability to make appropriate decisions and understand the consequences of actions impacted on your judgement.
84 Regarding your head injury in 2011, Ms Jackson considered such had resulted in a Mood Disorder, problems with interpersonal and occupational functioning and chronic pain and, in her opinion, “there appears” to be a direct link between this deterioration and your offending.
85 Mr McQuillan conceded Ms Jackson’s report did not enliven Verdins principles. That, in my opinion, was an appropriate concession on the material before me.
86 Testing resulted in a moderate risk of you re-offending, which would improve if you were treated or counselled.
87 Mr McQuillan sought an adjournment of your plea hearing to enable him to obtain a neuropsychological assessment to address the possibility of enlivening Verdins principles, in particular principle 6.
88 I received a report from Dr Loretta Evans, Neuropsychologist, dated 19 January 2018. I have read that report.
89 Dr Evans also set out details of your background and history, which I will not repeat here.
90 Regarding substance abuse you described yourself as an alcoholic. In her opinion, you appeared to minimise alcohol consumption.
91 Prior to the motorcycle collision in 2011 you described use of cannabis ‘once every couple of months, if that’ and an increase in use after the collision.
92 You described use of amphetamines from age 18, then from 24 using Ice ‘a few points a day’ until your recent incarceration (in June 2016).
93 You stated you had only undertaken drug rehabilitation programs when in jail.
94 Details were provided of medical treatment obtained following the collision in 2011 and I will not repeat that here.
95 You acknowledged the seriousness of your offending before me and the adverse impact on the victim.
96 Dr Evans conducted a neuropsychological assessment. Dr Evans concluded you were of average intelligence. She concluded your presentation was complicated by past substance abuse, particularly long term alcohol consumption.
97 Your cognitive inefficiencies did not contribute to your offending. Your ability to make reasoned and informed decisions was not appreciably compromised.
98 The extent of any acute drug intoxication and impact on your judgment would be difficult to determine.
99 From a psychological perspective, incarceration did not seem to be exceptionally onerous, rather the strict and structured environment of prison, she opined, may assist your day to day functioning.
100 In the opinion of Dr Evans, your risk of re-offending was moderate without appropriate interventions. I am sure you know that that means drug/alcohol counselling.
101 You may require pain management in custody.
102 Ultimately Mr McQuillan conceded that none of the Verdins principles applied. Again, in my opinion, an appropriate concession based on the material before me.
103 Regarding your rehabilitation prospects, I have concerns. Drug and alcohol use have been a factor in your current offending and past offending, and you are yet to address those issues successfully. Whilst you continue to use drugs you will continue to offend. If you continue to use drugs you will most likely continue to offend. While your prospects are guarded, I must, when sentencing you, seek to maximise your prospects of rehabilitation as they may be. I note a recent urinalysis negative for drug use dated 9 January 2018 (Exhibit 3).
104 Mr McQuillan urged, regarding the sentence, that the sentence imposed should not be ‘crushing’.
105 Ms Duckett submitted the report of Dr Evans did not enliven Verdins principles and referred to Dr Evans’ conclusion you were a moderate risk of re-offending without intervention.
106 Ms Duckett acknowledged the principles of Renzella would have some application when sentencing you.
107 Ms Duckett referred to the seriousness of the offence of aggravated burglary and, in particular, referred to the decision of DPP v Meyers[6], in which there were a number of features of aggravated burglary which were to be taken into account and present here. I also directed counsel to the decision of Younan v The Queen[7] relevant to the offence of armed robbery.
[6] [2014] VSCA 314
[7] [2017] VSCA 12
108 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.
109 There is also the need for specific deterrence when sentencing you, as you do have a criminal history and terms of imprisonment have not deterred you from offending.
110 I must also consider the question of the protection of members of the public from you and bear in mind the likelihood of your re-offending. This will continue to concern me until you receive and respond positively to drug and alcohol counselling.
111 I am called upon by the Sentencing Act to manifest the community’s denunciation of your conduct and generally to impose a just punishment.
112 In sentencing you I take into account principles of totality.
113 In sentencing you I also note you have been in custody since 21 June 2016, albeit including serving other sentences.
114 I sentence you as follows.
115 On Charge 1, you are convicted and sentence to 4 years’ imprisonment.
116 On Charge 2, you are convicted and sentenced to 6 months’ imprisonment.
117 On Charge 3, you are convicted and sentenced to 2 years imprisonment.
118 Charge 1 is the base sentence.
119 I direct that 3 months of Charge 2 be served cumulatively upon Charge 1.
120 I direct that 9 months of Charge 3 be served cumulatively upon Charge 1.
121 For clarity the orders for cumulation are upon each other and upon the base sentence.
122 That results in a total effective sentence of 5 years imprisonment, and I direct you serve a period of 3 years before you are eligible for parole.
123 Pursuant to s.6AAA Sentencing Act 1991, had you been found guilty of these charges following jury verdict, I would have sentenced you to a term of imprisonment of 8 years and set a non-parole period of 6 years.
124 Pursuant to s.18(4) Sentencing Act 1991, I declare you have spent 275 days in custody (up to and including yesterday, 26 February 2018) by way of pre-sentence detention, and I direct this be entered into the records of the Court. I repeat when determining sentence in your case, I have also taken into account the principles in R v Renzella[8].
[8] [1999] VSCA 85
125 No other orders were sought.
- - - - - -
0
3
0