Director of Public Prosecutions v Moon

[2022] VCC 385

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT SHEPPARTON

CRIMINAL JURISDICTION

CR 21-02095

DIRECTOR OF PUBLIC PROSECUTIONS

v

JAI NATHAN MOON

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Shepparton
DATE OF HEARING:
DATE OF SENTENCE:	24 March 2022
CASE MAY BE CITED AS:	DPP v MOON
MEDIUM NEUTRAL CITATION:	[2022] VCC 385

REASONS FOR SENTENCE

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Legislation Cited:

Cases Cited:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr C. McConaghy	Office of Public Prosecutions
For the Accused	Ms E. Strugnell

HER HONOUR:

1Jai Nathan Moon, you have pleaded guilty before me to one charge of home invasion and one charge of making a threat to kill.  You have also pleaded guilty to two summary offences of unlawful assault and a third summary offence of committing an indictable offence on bail.  The facts underlying your offending are as follows.  On Saturday 20 March 2021 at about 1 o'clock in the morning, you with your co-accused, Steven Barker and Paul Fleming were at your house in Kyabram drinking alcohol.  You then left on route to Fleming's residence, walking up Waratah Street.

2Whilst doing that, the three of you made a decision to go to the victim's house with the intention of forcing Jacko, a man whom you believed to be a paedophile, out of town.  After knocking on the door of 29 Waratah Street, one of the victims, Emma Palmer, opened the door and the three of you pushed your way in.  At the time, the second victim, Timothy Rawlings, Ms Palmer and a third person, Michelle Green, were present.  Mr Rawlings and Ms Palmer had been watching TV and Ms Green was in the kitchen.  Mr Rawlings recognised all three of you.

3Those actions in entering the house in that way underlie Charge 1 on the indictment, home invasion.  At the time Mr Barker was carrying a knife behind his back, but the prosecution does not allege that you were aware of this.  Fleming remained at the front door, just inside.  You went up to Rawlings who was left sitting in a lounge chair and punched him to the right side of his face.  This action underlies Summary Charge 3, unlawful assault.

4All of you were yelling out 'Where's Jacko?'.  You then alleged that Palmer had inappropriately touched a teenager, then you picked up a guitar and raised it in the air, as if you were going to hit Ms Palmer with it.  You then put the guitar down and punched Palmer in the face.  That action underlies Summary Charge 4, unlawful assault.  You made repeated threats to kill and to burn the house down if the matter was reported to police.  Those actions underlie Charge 2 on the indictment, making a threat to kill.  The three of you then left the property.  Mr Rawlings and Ms Palmer did not report the matter to police until 22 March 2021, because of fear you had engendered in them.  Following the assault on him, Mr Rawlings told police that he had a very sore jaw and that it was hard to chew.  At the time of committing these offences, you were on bail for another assault, which has since been dealt with.  You and Mr Barker were arrested on 7 April 2021 and at the Echuca police station, made a no comment interview with denials.  You have been on bail since your arrest on 7 April. 
Mr Barker has failed to appear at a criminal mention in July of last year and a warrant has been issued for his arrest.  The maximum penalty for home invasion is 25 years imprisonment.  The maximum penalty for making a threat to kill is level five imprisonment, that is 10 years imprisonment.  The maximum penalty for unlawful assault is fifteen penalty units or three months imprisonment and the maximum penalty for committing an indictable offence on bail is 30 penalty units or three months imprisonment.

5Home invasion is what is called a Category 2 offence, which means that pursuant to s5(2H), a court must make a custodial order, that is, impose a gaol sentence to be immediately imposed, unless certain criteria are met.  No victim impact statements were received.  Your matter resolved to a plea at a further committal mention on 29 September 2021 and the prosecution concede that this is therefore a plea made at the earliest opportunity.

6I now turn to your personal circumstances.  You are now 28, you were 27 at the time of the offending.  You were one of two sons born to your parents in Kyabram, they separating when you were about three years old, due to family violence.  You went to live with your mother, but in the following years during access, your father sexually abused both yourself and your brother.  When you were eight, your mother who had problems with heroin addiction took off for Queensland, leaving you in the care of your maternal grandparents.  Your mother re-partnered and your step-father has also spent many years struggling with addiction to morphine and heroin.  He and she subsequently had three more children.

7When you were 13, your mother returned to Kyabram and you moved in with her, but she then moved onto Yarragon and at the age of 14, you essentially were living on your own, moving in with friends.  You left school in the first two weeks of Year 9 at Kyabram High School and you told psychologist,
Gina Cidoni, whose report dated 22 March 2022 was tendered on the plea, that you were an angry child who was also a bully at school.  You did not work for about seven years.  In about 2012 when you were about 19, you formed a relationship of whom two sons, now aged nine and three, were born.  You began working when you were about 21, holding down a job at an abattoir for three years until you were 24, but were forced to give away paid employment because of substance issues.

8You used cannabis from the age of 13, then began using ice when you were about 18.  At the peak of your use, this habit was costing you about $2,000 every four days.  You stopped using ice in 2020, once Child Protection became involved with you and your partner and your children.  Your partner was also a heavy drug user and in fact, your relationship ended because you gave up drugs.  However, you substituted alcohol for ice and drank very heavily for about twelve months and it was in the context of this use, that the offending before this court occurred as you were heavily under the influence of alcohol at the time.  I was informed that you and your friends had in fact sat down and decided you were going to check out child sex abusers in the area and settled on Jacko, whom you believed to be at the address that you attended.

9Ultimately your children were removed from your partner's care in July of last year and the matter went to the Children's Court.  As a result, a family reunification order was made, which required that you undertake certain steps - to be overseen by the Child Protective Services, and cease drinking alcohol.  That you have done.  It was soon after that, that you both gave up alcohol and submitted yourself for regular urine testing which have proven clear. 

10It would seem that the intervention of the Children's Court at this point has forced you to turn your life around.  You have obtained work at an abattoir called Riverside Meats in Echuca and have been working there since June 2021.  You live with an aunt and your cousins, who attended court today to support you.  I received a reference from the floor supervisor at Riverside Meats, where you work as a leading hand, you having worked your way up to that position.  The written reference by Damion Hammond states that you are an honest hardworking and reliable employee, who has an excellent work ethic.  Mr Hammond stated:

'Jai is a valuable asset to our company.  He has learned so much in this industry and knows a variety of jobs within this plant'.

11He wrote in what I am satisfied, is full awareness of your offending, stating it would be devastating to lose you as a worker and overall it was an impressive reference.  Even more importantly, I received a reference from Lisa Neville, the Child Protection worker who is supervising the family reunification order.  She is a child protection practitioner with the Department of Families, Fairness and Housing. 

12In her written reference to the court, she said that you were demonstrating commitment to having regular contact with your children.  She said:

'Mr Moon has developed a fun, respectful relationship with his children and it is noted by the department and Zayden's school that Zayden and Chaz, (they being your children), have a much more positive demeanour.  The children appear much happier in their placement with daily positive contact with their dad Mr Moon'. 

13Looking at a reference also from your grandparents, who have the care of Chaz and Zayden, it is evident that you visit your sons every day after school and it is also noted in the report from Ms Neville, that you have them to stay overnight every Friday. 

14Ms Neville said that you had been open with the Department about these charges.  She wrote:

'Mr Moon willingly engages in a respectful and cooperative with the Child Protection practitioner and he also completed the drug screens requested from him.  The drug screens were clear of any substances and on
9 November 2021, Mr Moon progressed to unsupervised contact'.

15Ms Neville went on to state that she believed your removal from your children would undoubtedly have a negative effect upon them.  He stated:

'Chaz and Zayden have experienced significant trauma in the care of their mother.  They have experienced neglect, exposure to family violence, inappropriate discipline by their mother, exposure to mother's mental health issues and exposure to mother's substance abuse.  The children will be emotionally impacted in a negative way and will require additional supports to be put in place, to manage the further trauma that Mr Moon's sentencing will have on their emotional wellbeing'.

16Finally, as I said, I received a reference from your grandparents, Bronwyn and Graham Moon, who talked about you turning your life around, by being “sober, level headed, loving and an amazing dad.  We are so proud of him.”  Ms Cidoni diagnosed you as suffering from Post-Traumatic Stress Disorder, a generalised anxiety disorder and a major depressive disorder.  It was her view that these conditions could be linked to your offending in terms of those conditions having a causal link with the offending.

17It was submitted by your counsel that I should find this to be so.  That submission is important because of the sentencing restraints imposed by s5(2H).  Pursuant to s5(2H), I must impose, as I have said, a term of imprisonment to be immediately served for the offence of home invasion, unless pursuant to s5(2H)(c)(i), you are found to be on the balance of probabilities, at the time of the offending, suffering an impaired mental function that was causally linked to the commission of the offence and substantially and materially reduces your culpability, or suffered an impaired mental functioning, which would result in you being subject to substantially and material greater than ordinary burden from imprisonment.  See s5(2H)(c)(ii).

18Your counsel submitted that I should find that you suffer from such a mental impairment and I am satisfied that you do.  Impaired mental functioning is defined by s4 of the Mental Health Act as being characterised by a significant disturbance of thought, mood, perception or memory.  However, she further submitted that I should find that that mental impairment was causally linked in a way that substantially and materially reduced your culpability for the offending.

19I am unable to accept that submission.  In my view, whilst I am satisfied that you do have impaired mental functioning, I do not find it was causally linked to this offending in the way expected by the legislation, because in my view, whilst you have carried those mental impairments around with you, they came to the surface and were acted upon because of the alcohol you were drinking that night.  That is, that it disinhibited you and meant that if I could put it this way, with a head full of alcohol, you decided to behave in this criminal and inappropriate way.

20The prosecution submitted that the only way I can deal with you by way of an exception, is pursuant to s5(2H)(e), that is that there are substantial and compelling circumstances that are exceptional and rare and that justify not making a wholly custodial order.  In looking at those circumstances, s5(2H)(c) states that a court, in looking at whether or not there are substantial and compelling circumstances that are exceptional and rare, a court must consider that general deterrence and denunciation are more important than the other sentencing considerations.

21Secondly, the Prosecutor submitted that I am to give less weight to the personal circumstances of the offender and I should have greater regard to the nature and gravity of the offence and thirdly, that I must not have regard to an offender's previous good character, an early guilty plea or prospects of rehabilitation.  It was submitted by the learned prosecutor that this paragraph is the paragraph that should guide my determination as to whether or not there is an exception to the rule that persons who commit the offence of home invasion must receive a wholly custodial sentence.

22He submitted that I should not find that you suffer a mental impaired functioning, such that service of a term in imprisonment would be substantially and materially more difficult for you, than the ordinary prisoner, if I can put it this way.  In her report, Ms Cidoni in making the diagnosis that she did of the psychological problems that you have, stated at paragraph 52:

'His profile indicated marked alterations in his arousal and reactivity, hypervigilance, irritability, anger outbursts, poor concentration, sleep disturbance disassociation and avoidance.  Intrusive experiences include nightmares, flashbacks, i.e. sudden intrusive sensory memories of a previous traumatic event, upsetting memories that are easily triggered by current events and repetitive thoughts that intrude into awareness.  His responses also reflect a need to avoid the recall or triggering of memories of specific traumatic events.  They reflect the generally conscious effort for protest of cognitive and behavioural avoidance, as a way of managing post-traumatic disorder, rather than more basic mental defences, such as dis-association'.

23She went onto say:

'Anxiously troubled and socially apprehensive much of the time, he has turned to substance abuse to fulfil several otherwise difficult to achieve psychological functions.  Substances not only may serve to medicate his social anxiety and other psychological symptoms, but also may help him relate more comfortably to others by bolstering his feelings of self-esteem and wellbeing.  His coping resources in the face of stressful situations are very reduced with lowered capacity for problem-solving and coping skills'.

24She talked about the fact that you do not suffer from a personality disorder, according to the testing she undertook.  She said you did not have any attitude supportive of violence, that your risk profile did not show an entrenched pattern of violence and she noted that whilst you were using ice and then alcohol, your use was heavy enough to warrant the criteria for substance abuse disorder.  She said you were, given your current situation, a low to moderate risk of reoffending.

25In linking your offending to your impaired mental functioning, which I have already indicated I do not accept to the level required by the legislation,
Ms Cidoni stated:

'Trauma represents a life altering experience.  It engenders a sense of hopelessness, confusion and disorganisation for the sufferer.  Part of this confusion is attempting to work out what is real and what is fantasy, what happened in the past and what is happening now.  These disorientating states often stir intense emotional reactions and the feeling of being psychologically overwhelmed and overloaded.  This in turn impairs the normal capacity to make sense of and modulate experiences.  It results in a profound loss of innocence, as the expectation of safety and continuity are fundamentally altered. In his case, his trauma is a reminder of mortality and inadequate coping is about defending against anxiety and death.  Its impact is it shatters basic assumptions about the order and predictability of life, and this can create major thinking problems in people'.

26Now as I have said, I absolutely accept that that difficulty that she has described, and I hope you can understand what I am saying there Mr Moon, is always with you, but I am saying that on this occasion, those thoughts, overwhelming sense of unsafety which is often a lifelong result of having been abused by a parent, whilst it might be with you, really came to the fore in terms of the way you behaved on that night, because in my view, you were drinking and self-induced intoxication under the legislation is not a matter that can be taken into account in making the assessment that I must make.

27However, I am satisfied that you do suffer impaired mental functioning, such that if you were placed in custody, you would find custody a far more difficult and burdensome exercise than the ordinary prisoner. 

28I need to turn to your prior criminal history.  It is not long, but it is a little concerning because it always involves violence.  There are two appearances, the first at the Echuca Magistrates' Court in 2017 for unlawful assault, criminal damage and resisting an emergency worker on duty and you were placed on a community corrections orders which you then breached, and the order was then varied. Then finally on 30 June 2021, you were given a $350 fine for assault with a weapon, which is a matter for which you were on bail at the time that you committed these offences.

29Now what is important about your prior criminal record is that given, what I accept, what has been an extremely traumatic history and childhood and development history and also a longstanding and troubling substance abuse history, your criminal record could be a lot worse.  Importantly, you have never been placed in gaol.  Can I say Mr Moon, if you had not taken the steps that you had taken, I would not hesitate to place you in gaol, but I am now going to have regard to what Ms Cidoni said about which she believed may happen to you, should you be placed in gaol.  Ms Cidoni stated:

'Considering imprisonment, the concern for Mr Moon is that his mental illness may be exacerbated where marked alterations and arousal reactivity intrusion and impulsivity symptoms is a function of PTSD, can produce overwhelming challenges, it would weigh more heavily upon him and possibly worsen his symptoms.  His progress so far as a young person having so many disadvantages should be considered'.

30Now the paragraphs that I read out from Ms Cidoni's report were read out by me as a sort of underlying description of the difficulties, the mental impairments that you struggle with and to more clearly demonstrate, why I have made the decision that I have, that an exception to the legislative requirement that a court must impose a term of imprisonment to be immediately served to persons who commit the offence of home invasion, why I have made the decision, I do not have to do so in this case.

31It was submitted by the learned prosecutor that the terminology used by
Ms Cidoni in saying that you may have the reactions, rather than that you will, meant that there was not enough material for me as a Judge to conclude, that you would suffer gaol in the way described or the effects of gaol in the ways describes by s5(2H(C)(2).  I do not agree with that submission.  In my view, it is extremely rare and would indeed be for any psychologist, to use definitive language when making such as will and would, when making a future prognostication.  And I do not regard Ms Cidoni's use of that language as taking away from the dangers that in my view, on the balance of probabilities, I am satisfied you would encounter were I to place you in gaol.

32Having made that decision, I then turn to what I consider to be the appropriate sentence or disposition in all the circumstances.  Your counsel submitted that the principles contained in the High Court decision of Bugmy, at 2013, HCA 37, where it was acknowledged by the court that where an offender has an experience of growing up in an environment surrounded by alcohol abuse and violence, in your case drug abuse and violence, which may leave its mark on a person throughout life, a court may find that this background has compromised a person's capacity to mature and to learn from experience and that it is a feature of the person's make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that a person has a long history of offending.  Well you do not have that.

33But what is particularly important insofar as my sentencing exercise is concerned, are the remarks of Victorian courts about the way in which that High Court principle is applied in this state.  In DPP v Drake, 2019, VSCA 293, the Court of Appeal stated:

'The profound dysfunction, disadvantage and abuse experienced by the respondent during his formative years were relevant to an appropriate evaluation of his moral culpability.  As recognised by the High Court in Bugmy, those experiences, none of which were of his making or played a significant role in shaping the respondent's personality and his responses.  As a consequence, his subjective culpability for the offending in which he engaged, could not be equated with that of a person who committed the same offence, but it had the advantage of a normal stable and regular home environment, along his or her childhood years.  In that way, those factors constituted an important mitigating circumstance, in the determination of the respondent's sentence'.

34A second case which was referred to by your counsel, that is Bergman, VR 2021, VSCA 148.  The Court of Appeal made further comment on the effect of the Bugmy principles stating that the effect of a significant reduction of moral culpability by reason of disadvantaged upbringing and youth:

'Made his rehabilitation a matter of the highest importance, otherwise the cycle of offending will almost certainly continue to the great detriment as a community and of the applicant himself.  The community will be far better served if the money spent by the state on its continuing incarceration, could be redirected to intensive individual interventions, which the applicant so obviously needs'.

35Now whilst moral culpability is referred to more than once in those passages that I have cited, I am not saying that I am revisiting s5(2)(H)(C)(1), but I am saying, in the circumstances of my having found that in your case, the exception outlined in s5(2)(H)(C)(2) applies, I then have to look at what is the appropriate sentence in all the circumstances.  That is, whether or not I should deal with you by way of what is called a combination sentence, comprising imprisonment and a community corrections order, or totally non-custodial sentences warranted in your case.

36I accept that the experiences of your childhood were so disturbing and serious and disruptive and damaging, that it could be said the principles of Bugmy apply.  I am also satisfied that the position in which you present today, means that I do not have to consider you as a danger to the community.  Your rehabilitation in my view is well founded and impressive.  Essentially for the first time, since your early teens, you are drug free, gainfully employed and probably for the first time since your children were born, behaving in a way which means your children have an effective and valuable parent figure in you.

37I do not know quite what you would have done Mr Moon, had Child Protection not intervened, but they have intervened and you have responded well.  You hold good employment, good stable employment, you are living in a stable situation.  You are at a critical stage in terms of reuniting with your sons, you have ceased using drugs.  That rehabilitation is in marked contrast to the way in which you have lived the vast majority of your adolescent and adult life.  In my view, the words 'the community would be far better served if the money spent by the state on his continued incarceration could be redirected to intensive individual interventions which the applicant so obviously needs', has particular application to you.

38Additionally, it was conceded, as has been said in the course of the plea, you made a plea at the earliest opportunity.  I am satisfied you are remorseful for your offending.  I am satisfied, as I have said, that your rehabilitation is well established and impressive and that you have effectively turned your life around.  In all those circumstances, it is my view that placing you in gaol for any period of time would be entirely detrimental, not only to your own interest, but the interests of the community, in seeing that your cycle of offending is broken and indeed, in ensuring that that is not passed onto your own children.  They have already gone through it, it sounds like quite enough trauma in their young lives.

39This is not a usual case, but the circumstances of your life, in my view, have been particularly difficult and damaging and your rehabilitation consequently, particularly impressive and important to this community.  In all the circumstances therefore I have decided not to place you on any order which involves you spending any time in gaol.  Now please do not think Mr Moon that this is going to go on forever.  If you come in front of me, having decided I did not go to gaol, I can kick up my heels and start offending, you will find I am going to be completely unsympathetic to you.

40You also need to understand that by being convicted of home invasion, you have a particularly serious prior criminal conviction on your record.  If you offend in the future, a court sees that you have committed this offence and been given this most unusual opportunity, that you have failed to take advantage of is going to be very disinclined to deal with you in any way other than by imposing a term of imprisonment and you are not out of the woods yet, all right, just in the same way that you are not out of the woods with Child Protection.

41I am going to place you on the order for a period of two and a half years.  I am going to tell you what the core conditions of the order are and you must abide by those conditions for the next two and a half years.  They are that firstly, you must report the Community Corrections Office within two working days, that is by Monday of next week.  Whilst on the order, you must not commit an offence punishable by imprisonment.  That does not mean you have to commit an offence and get sent to gaol, it means that if you commit an offence for which you could theoretically be sent to gaol like knocking off a box of matches from Woolworths, that will breach the order.  If you breach the order, you come back and I will resentence you on this offending, is that clear? 

42You may not leave Victoria without the permission of the Community Corrections Office.  You must report any change of address or employment within 48 hours.  You must report to and receive visits from the Community Corrections Office.  You must not attend upon Corrections under the influence of drugs and alcohol and you must abide by all lawful directions of the Community Corrections Office.  Now I note that you work six days a week and I have no doubt that employment is a very important thing for you.  I am going to impose some community work as a special condition, but not as much as I would otherwise because of your work commitments and your commitments to your children.

43So I am going to impose 70 hours of unpaid community work.  More importantly, I am going to order that you undergo treatment and rehabilitation for mental health difficulties.  Do you understand you have got PTSD, yes?

44OFFENDER:  Yeah I do now.

45HER HONOUR:  You do now?  Just in laymen's terms, let me tell you what I understand that means for you all right?  PTSD is post-traumatic stress disorder.  That means you have suffered trauma.  The way trauma works is this, most of us when we experience a negative emotion, recover from that experience because time takes care of your brain processes and it goes into the past.  What happens with trauma is your brain does not process it properly and so even though the effects of a traumatic incident might be felt less as time goes on, because your brain hasn't processed that trauma, it is sitting there underneath and you can be triggered.

46So something comes up which triggers off all this emotion still sitting around underneath and you have this - you can have a completely over the top response, for example, you might find when you are watching the news, at any mention of someone who has sexually offended against a child will produce in you a wild feeling of rage.  That is because of the trauma that you suffered at the hands of your father as a child.  So that emotion that goes with being the victim of sexual abuse is still around.  It can still be triggered off.  Am I making sense to you?

47OFFENDER:  Yes, Your Honour.

48HER HONOUR:  And the problem with that is, that you can have these very extreme emotional responses and your problem is going to be what happens if you act on them.  So the mental health treatment is about recognising - plenty of people wander around with PTSD and can I say this, there is no shame in it.  That was done to you, all right?  But it is less that if you like, proclivity, that tendency to react very strongly.  And it can also mean you can feel intense sadness or a lot of intense uncomfortable emotions and for many years, you have dealt with that and Ms Cidoni refers to that in her report, by turning to drugs.

49So for a lot of years, you have not learned how to deal with negative emotions except by drugs or alcohol.  You have to learn how to do that.  There is nothing worse, as you know, than being the child of parents who have substance abuse problems.  You would remember the inconsistency.  One minute mum is cuddling you, the next minute she is screaming at you, the next minute she is gone.  Is that right?

50OFFENDER:  Yep.

51HER HONOUR:  Yes and that is what happens when your parent is effected in that way.  That is what you could do to your boys.  So mental health treatment is not about you being dragged off to a psych ward and being branded a nut case for the rest of your life, it is about you learning about what conditions you carry around with you as a result of your difficult childhood and how you handle them, both for your own sake of mind and peace of mind and so you can be a better parent.  I am making this explanation - lots of men do not like going and getting mental health treatment, even though they might very much need it and you do.  Part of it is education about your own condition and how you handle it.  Does that make sense to you?

52OFFENDER:  Yeah it does, Your Honour.

53HER HONOUR:  Good, so I am ordering that.  I am also going to order assessment and treatment, even though it has not been recommended, for drug and alcohol use.  Now under the Corrections system, you can get - depending on how great they might think your need is and you will be assessed by what is called ACSO, it might be found that you simply need a very basic program or you might need a more intensive one. 

54Also, this is something you can call on as time goes on whilst you are on this order.  If you find yourself hanging out, wanting to use being triggered.  A good example, one of the best examples I ever heard was a man I once dealt with that had a huge ice habit that he gave away and he said the hardest thing for him was travelling on a particular train line, because that was the one he used to go and get drugs from his dealer.  He had to avoid that train line because every time he got on it, he desperately wanted to use, all right?

55Now that can come up at any time.  I want you to have that as a resource.  If you find yourself in that position, then let the Corrections officer know.  You are never going to get into trouble with Corrections for telling them either that you have used or that you feel like using.  Your problem with Corrections is if you use and then lie about it.  Have you got that?

56OFFENDER:  Yep.

57HER HONOUR:  You need to be upfront.  Now it sounds like you are dealing with both alcohol and drugs really well and that you have done it by yourself, but I want to build that in.  I am going to order supervision which means Corrections will be keeping a bit more of an eye on you and finally, I am going to order judicial monitoring.  What that means is at regular intervals, you will come back in front of me, you do not need a solicitor, but I will have a report detailing the progress you are making and how well you are sticking to the order and then you and I will have a chat.  So unfortunately for you Mr Moon, today is not the last day that our paths will cross all right?  You will be seeing me regularly.  Now are you prepared to enter this order?

58OFFENDER:  Yes, Your Honour.

59HER HONOUR:  Have you got any questions?

60OFFENDER:  No, it was all pretty straight forward.  Thank you.

61HER HONOUR:  Good, all right.  So in that case - yes absolutely.  There is a document you have to sign so I am going to stand down.  Pursuant to s6AAA, I declare that had you not pleaded guilty, I would have sentenced you to a term of imprisonment of three years and order that you serve a minimum term of 18 months.  All right?  Is there any other order that I need to make?

62MR McCONAGHY:  No, Your Honour.

63HER HONOUR:  No.  Thank you.  I thank counsel very much for your assistance.  I thank you for the extremely helpful paperwork Ms Strugnell which made my task much easier and Mr McConaghy, I thank you very much for your annoyingly piercing and valid arguments, which made me have to think a great deal before I came to the conclusion I did, which means I can truly say that I have anxiously considered all aspects of this case.

64MR McCONAGHY:  Here to assist you, Your Honour.

65HER HONOUR:  I can see that.  Thank you, Mr McConaghy.  Thank you.  We'll just stand down while the paperwork's prepared.  Would you like me to just - I will just go downstairs, will I?

66ASSOCIATE:  Will be about ten minutes or so.

67HER HONOUR:  Yes, it will be about ten minutes, all right?  Thank you very much.  We will just stand down.

68(Short adjournment.)

69HER HONOUR:  Thank you very much.  Yes, we will just get you to sign - take it down to him please.  Now the first judicial monitoring is 9.30 on 24 June.  It says at the Shepparton County Court, but all you have to do is turn up to the Corrections Office and they will beam you in from there Mr Moon all right?

70OFFENDER:  Yep, thank you.

71HER HONOUR:  All right, thank you very much.  I probably - on reflection, I am just a little concerned that even though I read an amount of material out of
Ms Cidoni's report and I need to underline that, I am satisfied that you suffer from serious mental impairment conditions which would make service of a term of imprisonment substantially more onerous than for the normal prisoner in accordance with the dictates of s5(2H)(c)(2).  Thank you very much. 

72As a result of that finding, you need not consider s5(2H)(e).  Thank you very much.  Thank you we will adjourn to 9.30 tomorrow morning, thank you.

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