Director of Public Prosecutions v Moore (a pseudonym)
[2021] VCC 755
•25 May 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MORGAN MOORE (A PSEUDONYM) |
---
JUDGE: | HER HONOUR JUDGE MARICH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 March 2021, 30 April 2021 | |
DATE OF SENTENCE: | 25 May 2021 | |
CASE MAY BE CITED AS: | DPP v Moore (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 755 | |
REASONS FOR SENTENCE
---
Cases Cited:R v Verdins (2007) 16 VR 269
Sentence: 3 years and 9 months' imprisonment, non-parole period of 2 years and 4 months
---
APPEARANCES: | Counsel | Solicitors | ||
| For the Director of Public Prosecutions | Mr J. Singh Office of Public Prosecutions | |||
| For the Accused | Mr L. Richter James Dowsley & | |||
| Associates | ||||
HER HONOUR:
1Morgan Moore[1], you have pleaded guilty to an indictment containing the following counts:
· Charge 1: that between 28 September 2019 and 9 October 2019 you intentionally damaged a house belonging to yourself and Anabel Mizer[2] (criminal damage) which carries a maximum penalty of 10 years’ imprisonment.
· Charge 2: that on 28 September 2019 you intentionally caused injury to Anabel Mizer which carries a maximum of 10 years’ imprisonment.
· Charge 3: that on 30 September 2019 you made a threat to kill Anabel Mizer, which carries a maximum penalty of 10 years’ imprisonment.
· Charge 4: that between 30 September 2019 and 24 October 2019, being a prohibited person, you possessed an imitation firearm, which carries a maximum penalty of 1200 penalty units or 10 years’ imprisonment.
· Charge 5: that on 9 October 2019 you stole a television and laptop belonging to Anabel Mizer, which carries a maximum penalty of 10 years’ imprisonment.
· Charge 6: that between 28 September 2019 and 9 October 2019 you persistently contravened a family violence intervention order, which carries a maximum penalty of 600 penalty units or 5 years’ imprisonment or both.
· Charge 7: that on 11 October 2019 you possessed drugs of dependence, namely methylamphetamine and gamma-hydroxybutyrate, which carries a maximum penalty of 30 penalty units or 1 year’s imprisonment or both.
· Charge 8: that on 24 October 2019 you dishonestly undertook the retention of stolen goods, ie various identification cards in different names, jewellery, watches, cameras, collectors’ coins, and foreign currency, which carries a maximum penalty of 15 years’ imprisonment.
[1] A pseudonym.
[2] A pseudonym.
2Related summary charges of commit an indictable offence whilst on bail, which carries a maximum penalty of 30 penalty units or 3 months’ imprisonment, and possess ammunition without a licence, which carries a maximum penalty of 40 penalty units, were uplifted into the hearing of the plea in mitigation of penalty, and you pleaded guilty to both.
3The circumstances in which you came to commit those offences are set out in the prosecution opening for plea dated 13 January 2021 (Exhibit A). The prosecution also relied upon an earlier prosecution response opposing remittance dated 13 December 2020 (Exhibit B), photographs of the injury to Anabel Mizer (Exhibit C), your criminal history dated 11 March 2021 (Exhibit D), photographs of the imitation firearm which appear at pages 98−100 of the depositions (Exhibit E), and the victim impact statement of Anabel Mizer dated 27 January 2021.
4Your counsel filed a defence outline of plea submissions dated 10 March 2021 (Exhibit 1), a psychological report of Ms Carla Lechner dated 25 January 2021 (Exhibit 2), a letter from psychiatrist Dr Paul Brown dated 4 March 2019 (Exhibit 3), a summary letter from Dr Brown, undated (Exhibit 4), a letter from Dr Marian Moldoveanu dated 21 May 2019 (Exhibit 5), a letter from Ms Liana Alexander[3] dated 9 March 2021 (Exhibit 6), an employment letter from Mr Isaac Moore[4] dated 10 March 2021 (Exhibit 7), a letter from Mr Daniel Moore[5] dated 10 March 2021 (Exhibit 8), a bundle of certificates from courses completed whilst in custody (Exhibit 9), and four tranches of your Justice Health file (Exhibit 10).
[3] A pseudonym.
[4] A pseudonym.
[5] A pseudonym.
5I have had careful regard to those exhibited documents, as well as the matters addressed in the days of hearing of your oral plea in mitigation.
Circumstances of the offending
6On 28 May 2019, you were served with a family violence intervention order issued that day by the Moorabbin Magistrates’ Court. The persons protected by that order were the complainant, Anabel Mizer, who was then aged 33 years of age, residing at an address in Caulfield South, and Kiki Moore[6], both of your six‑month-old daughter. The order was to expire on 21 May 2024.
[6] A pseudonym.
7On 28 September 2019, you arrived at Ms Mizer’s home address and forced open the back door, smashing the glass in the process. This is the offending referable to your Charge 1, of criminal damage, as well as one of the particulars of your Charge 6, of persistent contravention of family violence intervention order. Ms Mizer placed Kiki on a playmat whilst she argued with you. During the argument, you pushed past Ms Mizer, elbowing her in the ribs. You then grabbed Ms Mizer by the throat and forced her onto the bed, pushing your fist into her face, causing bruising. You then threatened to stuff her into a suitcase and make her disappear, then you grabbed a rope from a silk robe, wrapped it around Ms Mizer’s neck, and strangled her.
8Ms Mizer broke free and tried to walk away. You then pushed her head into a window frame, causing her to lose consciousness for a short time. You exited into the back yard, and Ms Mizer tried to lock the door, but you kicked her to the ground and began cutting her arm with a piece of broken glass. You dragged Ms Mizer into the backyard while she screamed, before you finally left. This is the offending referable to your Charge 2, of intentionally causing injury, as well as another of the particulars of Charge 6.
9On 30 September 2019, you attempted to enter Ms Mizer’s address through the rear door, but you were stopped by a locked security door, and an argument ensued between you both. You walked away from the door and back down the driveway. Ms Mizer observed you, via a camera she had installed, walk to a silver Toyota parked on the street, which you got into and moved so that it was parked in front of her address. She then observed you pull out a black-and-white suitcase from the boot, of which she took a photo. You then walked back to the back door of the address with the suitcase. Through the screen door, Ms Mizer observed you produce an imitation firearm from the bag. You raised the firearm at her through the door, at face height, and said “I’ll make you suffer and die”. This is the offending referable to your Charge 3, make threat to kill, and your Charge 4, being a prohibited person possess imitation firearm, and is also a particular of your Charge 6, as well as constituting your Summary Charge 8, ie commit an indictable offence whilst on bail.
10On 9 October 2019, Ms Mizer was at her home address with your shared daughter, Kiki. At about 11am on that day, you forced your way into the property by forcing the back door off its hinges. Ms Mizer yelled for you to go away, and barricaded herself and Kiki in a bedroom. You started kicking the bedroom door, trying to get into the room, yelling that you wanted her car keys. Your attendance at these premises is another of the particulars of your Charge 6.
11You started removing Ms Mizer’s property from the house, comprising a 60‑inch Samsung smart TV and a Lenovo laptop, and placed them into your vehicle, which is the offending referable to your Charge 5, of theft. You went to the front of the house and smashed the window of the bedroom in which Ms Mizer was hiding, which is a further particular of your between-dates Charge 1, of damaging property.
12You yelled out to Ms Mizer, “You’ll get what you deserve” and “It doesn’t end here.” Ms Mizer yelled out for help, and you left in a silver-coloured Toyota. Prior to your leaving, you had parked a maroon Holden Jackaroo without plates in Ms Mizer’s driveway, preventing her from being able to drive her vehicle from the address.
Investigation, arrest and interview
13Police were called to attend the address as a result of a Triple Zero call made at 11.29am on 9 October 2019. Police arrived about 20 minutes later, and Ms Mizer told them she was genuinely in fear that you were going to kill her. Ms Mizer made a report to police detailing these incidents, and informed them that you were in possession of a firearm. The Jackaroo was towed from Ms Mizer’s property.
14On 10 October 2019, shortly after 4.30pm, you were arrested by police after you were observed by a Salvation Army worker and child protection workers in Ms Mizer’s proximity. Also on 10 October 2019, you were interviewed by police, and during the interview you denied any involvement in the violence or the assault the subject of Charges 1, 2 and 3, and you claimed that Ms Mizer had made it all up. You admitted to being at the address on multiple occasions, in breach of the family violence intervention order, and having arguments with Ms Mizer at that point you were remanded into custody.
15Police then searched an Alfa Romeo belonging to you, which was parked in the front yard, and police located a large number of items referable to your Charge 8, of handling stolen goods, and a black imitation handgun and magazine, which is the imitation firearm used in your commission of Charge 4, of prohibited person possess an imitation firearm. Police also located small amounts of methylamphetamine and gamma-hydroxybutyrate, which are the subject of Charge 9. A .22 bullet was also located, which is the subject of your Summary Charge 18, ie possess ammunition without a licence.
16On 24 October 2019, a search warrant was executed at your premises in East Parkdale. Ms Mizer’s 60‑inch Samsung TV was located in the entrance hallway and was seized.
Effect on the victim
17I have read and considered Anabel Mizer’ victim impact statement very carefully. She told me that she has become hypervigilant with her personal safety and the safety of her children. Until recently she was barricading the bedroom door with furniture to stop anyone else coming in like the way that you did. She feels afraid of another attack. She often thinks that she sees you, when she sees men that look like you, and it makes her very scared and nervous and fearful.
18Since the attack she has had high blood pressure, bad headaches, and huge weight loss.
Plea of guilty, timing, remorse
19You were remanded into custody following your arrest on 10 October 2019, and your matter proceeded to a contested committal hearing before the Magistrates’ Court on 12 November 2020 which included cross-examination of the complainant. You were committed on pleas of not guilty, and the matter came before me shortly thereafter on an unsuccessful application to transfer the matter back for resolution before the Magistrates’ Court.
20The matter resolved in January of this year, and I accept and take into account that this plea was entered in the middle stage of the management of your hearing, and there is utilitarian benefit for that plea, in that it has spared the complainant and other witnesses the inconvenience, and in some cases trauma, of needing to appear before the court to testify, and it has also saved the court time.
21Your counsel submitted, and I accept and take into account also in mitigation of penalty, that your plea represents a degree of remorse, shame, and insight, as expressed by you to psychologist Carla Lechner, whose report I will address in more detail in due course as well as express to your former wife.
Personal circumstances
22You are now 53 years old, and were 52 at the time of offending.
23You were born and raised in Israel, the fourth of five children born to Isaac[7], who is now deceased, and Mia[8], who is now aged in her eighties. Your mother and siblings all live in Israel.
[7] A pseudonym.
[8] A pseudonym.
24You grew up in Jerusalem, and, after leaving school following your completion of Year 10, you started but did not complete a motor mechanic’s apprenticeship. You attended for national service, as was the obligation, between ages 18 to 21 years, and were trained in military combat and rotated placements, including three-month stints on the Lebanese and Gaza Strip borders. During this time, you witnessed the loss of friends who were killed in combat, and were yourself involved in shooting at others. You were once minimally injured by shell fire.
25Upon leaving the army, you worked as a security guard. Whilst driving to work one day, you observed a man wielding a knife, who stabbed a civilian woman. You disarmed the man, but could not save the woman’s life. You later learned that he had stabbed three other victims. You still feel guilty for not being on the scene slightly earlier to prevent her death.
26In 1991, after your father’s death, you left your homeland and travelled to Japan, where your ex‑girlfriend’s brother had a business. You lived and worked in Japan for six months, met a woman who would later become your wife, and you came to Australia in 1993. You have a son with your ex-wife.
27Your ex-wife Liana Alexander provided me with a letter on your behalf. She told me she held your friendship in the highest regard, as you are without doubt one of the most caring and kind men she has ever met. She considers you a dedicated father whose mission is to make sure your son is happy, safe and nurtured. You also looked after her son from her second marriage. When you told her about these events you were very upset, and you expressed your extreme disappointment. You have maintained weekly Zoom meetings for around one hour per session and can communicate via email whilst you are in custody.
28Your son Isaac Moore also provided me with a reference and supported you in court via WebEx. He says you are an amazing and helpful person to both your family and members of the community. He says quote, “Whilst seeing my father in custody has been very difficult, it has also meant he is drug free. I now have my father back”.
29Once you are released from custody, you will live with him and together you aim to continue your anti-depressant medication and you will continue to see a psychologist upon your release.
30Your brother Daniel Moore told me he will be happy to employ you for between 20 to 30 hours a week on a casual basis as a helper and labourer in his carpentry, handyman business.
31You and your wife had a wholesale jewellery business in Caulfield for about ten years. The business dissolved when you separated, and you went into partnership in a coffee shop in Glenhuntly Road. Your partner bought you out of the business after about two years, and you did not work for a while, and you progressed from previously casual use of cannabis to more frequent drug use, to which I will return.
32You then worked in plastering for a while, then for two to three years as a maintenance worker for a body corporate. You suffered a back injury, and underwent rehabilitation whilst receiving Centrelink payments.
33You met the complainant in this case, who was 19 years your junior, through a mutual friend. She had nowhere to live, so you took her and her daughter in. Your relationship was characterised by insecurity and mutual drug use. You share a child as well as the son that I have mentioned, born to your previous marriage.
34I understand that you have not used any illicit substances in custody, and all drug screens have been negative.
35You have a prior criminal history including approximately six substantive appearances prior to the commission of these offences, and one subsequent to these offences.
36Your first court appearance occurred in November 2002, and involved minor drug offences.
37You were next before the court in January 2005, and were placed on a community-based order for 12 months for trafficking in cannabis and theft charges.
38In February 2010, you faced the court for possess cannabis, possess prohibited weapon, and proceeds of crime offences, and the matter was the subject of an adjourned undertaking with conviction.
39In September 2013, you again faced court for possession of drugs charges, and were convicted and fined.
40In June 2017, further drugs charges, prohibited weapon, controlled weapon, and bail breaches proceeded before the court, and you were convicted and again placed on a community correction order.
41After you were remanded into custody, I was told that you faced the Moorabbin Magistrates’ Court in December 2019, and were sentenced to immediate custody for unlawful assault, trafficking methylamphetamine, possess cocaine, a prohibited weapon charge, and driving offences. I understand that the unlawful assault charge in that case related to the same complainant as in this case, relating to an incident on 9 October 2018 approximately 12 months prior to this offending, which also occurred in the complainant’s home. You pleaded guilty to a charge involving an allegation that you grabbed hold of the victim and pushed her against the wall, placed your left hand on the victim’s neck, and with your thumb applied pressure to her neck while holding her against the wall. As you were convicted for this offence after your commission of these offences, I do not take them into account in my evaluation of your character; however, I note that this offending involving family violence was not isolated and related back to an incident some 12 months earlier.
Psychological and physical presentation
42Dealing with the medical material in chronological order, I note that Dr Paul Brown drafted a letter dated 4 March 2019 for your Moorabbin Magistrates’ Court hearing, noting that you had been referred to him by your GP for the management of your psychiatric disorder. Your diagnoses as at March 2019 were:
(i)Post-traumatic stress disorder with hyperarousal, flashbacks, nightmares and insomnia. Those symptoms had worsened in the preceding five years;
(ii)Major depressive disorder which has accompanied worsening of the post-traumatic stress disorder with sadness, anorexia and suicidality; and
(iii)Amphetamine misuse as a form of self-medication of the above two diagnoses.
43Dr Brown commenced medication, ie Rexulti 1mg twice a day for anxiety and depression, and temazepam nightly for sleep.
44Dr Marian Moldoveanu of St Kilda South Medical Clinic, in a letter dated 21 May 2019, noted that you had been attending her practice since 28 February 2019 and undergoing a systematic counselling program targeting symptoms of post-traumatic stress disorder and associated behaviours, including substance use, as recommended by Dr Paul Brown, consultant psychiatrist.
45Ms Carla Lechner, clinical psychologist, examined you and provided a report dated 20 January 2021. She administered relevant empirical testing and concluded that you presented with symptoms of stimulant-use disorder – in remission in a controlled environment, post-traumatic stress disorder, and major depressive disorder, all three of which are DSM‑V diagnoses. She noted that you would benefit from trauma-focused therapy, in addition to mood management counselling supports. You would also benefit from ongoing drug rehabilitation counselling.
46You reported to her no desire for contact with the victim, and you will seek access to your daughter through legal means.
47In Ms Lechner’s view, your experience with the knife-wielding assailant, and the fact that you could not save the life of the woman that he stabbed, triggered your symptoms of post-traumatic stress disorder both in relation to this incident and your wartime experiences. You masked your distress with drug use that gradually increased over time. Whilst you lived a stable existence for the course of your marriage, when your marriage ended your drug use increased, and your behaviour spiralled downwards. You expressed to her regret and shame for your actions, and conceded that the victim would have felt scared by your actions, and that you handled matters inappropriately.
48Your counsel submitted that as a result of these matters, the fifth and sixth limbs of Verdins[9] attracted weight in the sentencing exercise, that is that the existence of your condition, will mean that a given sentence will weigh more heavily upon you than it would on a person in normal health, and that there was a serious risk that imprisonment would a have significant adverse effect on your mental health and your condition should have a barely on the kind of sentence that was imposed and the conditions in which it should be served. I find, consistent with the opinion of experts, that your condition will mean that a sentence will weigh more heavily upon you than it would upon a person of normal health and I attach mitigatory weight to this factor in the operation of those two Verdins limbs.
[9] R v Verdins (2007) 16 VR 269, [32].
49Ms Lechner notes that you have found your time in custody most challenging, especially in light of your health concerns. You were first found to have blood in your stools in February 2020, and at the time of Ms Lechner’s assessment you were highly anxious about the possibility of having cancer, and reported that this occupied most of your thinking time. You told Ms Lechner that you ruminated about your health, especially at night, wondering “Do I have cancer or not? I can’t sleep ... What if it’s cancer and I have no treatment, then what?”
50One of the exhibits tendered in the course of your plea was your Justice Health file, with some latencies and ambiguities the subject of oral evidence in the course of the plea in mitigation of penalty. Your file confirms that on 4 February 2020 your faecal occult blood test came back as positive, and in consultation you denied blood in your stool, and had no previous colonoscopies. You were referred to St Vincent’s Hospital for a colonoscopy, and the note of the relevant medical team at Marngoneet Correctional Centre, and subsequently Port Phillip Prison on the same day, made a referral for you to have that colonoscopy.
51In April 2020, you consulted Douglas Bell, psychiatrist, at Marngoneet Correctional Centre, who noted that you were very anxious, with very poor sleep, and that you were ruminating over your situation: for instance, that you could not see your children, and that your ex‑partner had an IVO stopping you seeing the baby. One of the particulars that you described was that you had recently tested positive for “bowel cancer” and you were awaiting further tests.
52On 4 June 2020, a medical officer at Marngoneet Correctional Centre noted that you had enquired about your colonoscopy, and noted that you had been referred in February but had received no appointment date with a surgeon. The plan was that St Vincent’s would be contacted to chase this event.
53On 24 June 2020, you again saw Douglas Bell, psychiatrist, and told him that you were hoping for bail in the next few weeks, and were still waiting to hear when you would be scheduled for a colonoscopy following your positive faecal occult blood test in February. Your mood was reported to be much improved.
54On 3 July 2020, the medical officer at Marngoneet Correctional Centre again noted the need to chase a colonoscopy referral; on 9 July 2020, a second faecal occult blood test was repeated. This second round of FOBT testing was also noted as positive on 22 July 2020.
55In July 2020 a TeleHealth appointment was confirmed with a gastroenterology clinic at Port Phillip Prison to take place on 17 August 2020. On that date, the TeleHealth appointment proceeded, and the gastroenterologist confirmed that a colonoscopy was advised and discussed the procedure with you as the patient, including risks.
56On 7 September 2020 you were booked on the bus from Marngoneet for the following day to go for a colonoscopy; however, you refused to go on the bus, as you told them that you were feeling unwell and had had diarrhoea since the previous day. You did not want to get on the bus with diarrhoea, and, whilst you were offered medication to prevent diarrhoea during transport, you also refused this. The risk of delaying the investigative procedure was explained to you, but you still refused to go.
57Here, I interpolate, as I indicated in the course of oral argument, as pressed by your counsel and not opposed by the prosecution, that in my view, even taking into account the rolling and onerous lockdowns within the Victorian community in 2020 due to the COVID‑19 infection, and cessation of some parts of hospital operations, I consider that the delay between the observation of your positive FOBT in February 2020, and your procedure only reaching the point of schedule in September 2020, is excessive and unjustifiable. I take into account the fact that it may have caused you risk (I note that this risk did not materialise, which is a topic to which I will return), but it also weighed heavily upon your mind, firstly as it would anyone in normal health, but secondly in particular upon you, suffering as you do from conditions including post-traumatic stress disorder, which may cause you to ruminate on these kinds of matters. I therefore mitigate penalty in recognition of those matters and I further interpolate the fact that you had not been seen or the colonoscopy administered by the time that you saw Ms Lechner in January 2021 allows continuation of that factor in mitigation.
58It appears from the record that a TeleHealth clinic appointment was booked with a gastroenterologist to take place on 12 November 2020. On 22 March 2021, you had still not been seen and other TeleHealth appointments were made with gastroenterologists. The colonoscopy eventually took place on 9 April 2021, and, whilst a 12mm polyp had been removed, there were no other concerns arising from your colonoscopy.
59I note that the day before your scheduled colonoscopy, ie 7 April 2021, there is a note that you were due to be transferred to Port Phillip Prison for the procedure but for the second time you again refused to go. The note reveals “Discussion between supervisor and prisoner re transfer via PPP and risking losing place at MARN.” The risks relating to your not having the procedure were discussed, but you continued to refuse transfer for treatment, as you had in September 2020.
60On 8 April 2021, there was a note of a curious call from Records stating that “This patient’s colonoscopy appointment has a court order, that he cannot refuse it, and that he has to attend the appointment at SVHM for the day procedure.” This is clearly incorrect information, as your colonoscopy appointment did not involve a court order. As I have noted, the procedure then followed.
61Your counsel submitted that I ought take into account the delay between your refusal to get on the bus in September 2020 for your scheduled colonoscopy, and the date on which the colonoscopy eventually took place (which, as I have already noted, was preceded by your further refusal to get on the bus).
62Whilst I have accepted that as of January 2021 when you were seen by Ms Lechner, that you were still concerned about this procedure, and I have mitigated penalty in accordance with that fact, I admit to some concern in relation to the latter part of this submission.
63Whilst I have expressed some concern at the further period of delay between September and April, I find that your second refusal to get on the bus in April 2021, apparently motivated by your desire not to lose your bed at Marngoneet, causes me some scepticism as to whether at that stage your professed concerns about the delay in process, and the fact that they were weighing so heavily on your mind, was in fact the case. Your behaviour is not consistent with these apparent concerns by this stage. You were aware that it would take some time for each of the scheduled procedures to be carried out each time they were postponed.
64Your refusal to get on the bus in April 2021 in fact post-dated the original listing of this plea, at which your counsel had emphasised the apparent alarming delay in the procedure, and the fact that it weighed so heavily upon your mind in the ensuing time that I ought take it into account as a distressing burden of custody. I cannot reconcile this part of the submission in those latter months and the fact that it apparently weighed so heavily upon you with your refusal to get on the bus in April based on the reason you gave.
65Post January 2021, I will not mitigate sentence in respect of that further delay to the extent that it weighed heavily upon you, but again I express my concern that I consider a further period of approximately seven months of delay, for a rescheduled colonoscopy after some seven months’ initial delay, to be very far from ideal, and of great concern to me.
Objective seriousness of the offending; moral culpability
66Mr Moore, your offending causes me very very significant concern. I accept the prosecution submission that matters of family violence are taken very seriously by the courts.
67The offending the subject of your Charge 1, of damage property, was a forceful act of power and destruction occurring at your ex‑partner’s home, in the presence of your six-year-old daughter. Immediately following the first particular of Charge 1, when you opened the back door and smashed the glass in the process, you engaged in an act of control, of violence, and of force, also at the victim’s home, also in the presence of your infant, which led to you strangling Ms Mizer, kicking her, and then cutting her arm with a piece of broken glass, causing her injuries.
68Only two days after these incidents, and after you were thwarted in your attempt to enter the complainant’s house when you were prevented by a locked security door, you went to your car and pulled out an imitation firearm, which you were prohibited from possessing and then threatened your ex‑partner through the door at face height, and said “I’ll make you suffer and die.”
69Here I interpolate that I have treated the gravity of your offence of possession as lying within the physical possession of the weapon, and I have confined my sentence in respect of that offence to reflect that objective gravity. You also used the weapon to further your threat which I have separately taken into account in my evaluation separately of the seriousness of the threat to kill. So here I will make it quite clear that I have confined my sentence in relation to the possession to the possession before its use, and I have separately taken into account its use in my evaluation of the gravity of the threat. I have allowed only modest cumulation of the sentences that I have imposed on each of those sentences so as to ensure there is no double counting.
70Though you were on bail, that undertaking did not deter you from committing any of these disgraceful acts. These acts were also committed in breach of a family violence intervention order that had attempted, inter alia, to prevent you from doing the very things that you then went on and did. This is the subject of your Charge 6.
71Here I will explain separately in my evaluation of the subject of Charge 6, I have sentenced purely on the basis of the gravamen of that charge, which is the infringement of the Family Violence Intervention Order, and whilst I have observed in passing that each of the other acts was a particular, I have separated my evaluation of the gravity of those acts from my evaluation of the breach of the Intervention Order, so each sentence applies quite separately.
72This is a protracted ordeal of violence, of threats, and control. I understand that you may have committed your offences whilst using methamphetamine to excess, and you have had the opportunity to reflect on your behaviour since the commission of these offences.
73On 9 October, you removed a number of valuable items from the victim’s house in addition to smashing the window of the bedroom where she was hiding. This is a protracted ordeal of violence of threats and control. I understand that you may have committed your offences whilst using methamphetamine to excess, and also that you have had the opportunity to reflect on your behaviour since the commission of these offences.
74However, as I intend to impose an entirely separate sentence for those specific offences, I stress that I have taken exceptional care to avoid double punishment and have had careful regard to the principle of totality in sentencing and I have ensured that the sentences that I impose for those offences do not double-count the fact that the circumstances of aggravation may form the subject matter of other sentences.
Relevant sentencing principles, sentencing submissions
75I take into account the purposes for which sentence must be imposed and the need for deterrence both general and specific. I note that you have appeared before the court on an unfortunate number of occasions for offences involving weapons, though it is not generally in your history to commit offences of family violence or of assault. I consider that significant specific deterrence is needed in relation to your weapons charge, and some specific deterrence is needed in relation to other charges, given your history of drug offending, and the fact that your drug use apparently influenced the commission of these offences.
76The sentences that I will impose will punish you and denounce your behaviour, whilst allowing and emphasising your efforts at rehabilitation. I share the view of Ms Lechner that it is desirable that you take advantage of rehabilitative opportunities that may present when you are released from custody, including treatment for your post-traumatic stress disorder and related psychological conditions, and for your drug addiction. I am cautious about your prospects for rehabilitation. Whilst there are some factors which are protective of your prospects such as your apparent lack of relevant prior history for offences of family violence, and the fact that you have secure accommodation and employment upon release, ultimately I consider that your prospects will depend on your ability to abstain from the use of the drug, methamphetamine. I intend to structure the sentence so as to allow for supervision of you upon your release.
77Your counsel’s primary submission involved an inevitable concession that you must receive a term of immediate imprisonment, with a submission that it was open to me to impose a combination of immediate imprisonment and a substantial community correction order. The prosecution has submitted that a sentence involving a head sentence with a minimum period before parole eligibility was the only available sentence in the proper exercise of my sentencing discretion. I have considered these submissions carefully, and ultimately I agree with the prosecution.
Sentence
78I will indicate the orders for cumulation as I go but the base sentence will not come until I evaluate Charge 3.
79On Charge 1, criminal damage, convicted and sentenced to nine months' imprisonment. Two months will be served cumulatively upon the base sentence and upon other sentences.
80On Charge 2, intentionally causing injury, I sentence the accused to 18 months' imprisonment, four months cumulative upon the base and other sentences.
81On Charge 3 of threat to kill, I impose two years' imprisonment. This is the base sentence.
82On Charge 4, possess imitation firearm, sentenced to 18 months' imprisonment, three months cumulative.
83Charge 5 of theft, 12 months' imprisonment, three months cumulative.
84On Charge 6, persistent contravention of family violence intervention order, 18 months' imprisonment, six months cumulative.
85Charge 7, possession of drugs, seven days concurrent.
86Charge 8, handling stolen goods, six months, three months cumulative.
87Summary Charge 8 of commit indictable offence whilst on bail, 42 days wholly concurrent.
88Possess ammunition, convicted and discharged.
89The total effective sentence is therefore three years and nine months' imprisonment, and having regard to the matters to which I have referred, I will impose a minimum of two years and four months before parole eligibility.
90HER HONOUR: What pre-sentence detention, gents?
91MR RICHTER: Four hundred and eighty days, we're agreed, Your Honour.
92HER HONOUR: Yes, thank you very much.
93MR SINGH: Yes, agree with 480.
94HER HONOUR: Yes, thank you. In relation to s.6AAA if these charges had been the subject of a plea of not guilty and then a finding of guilt following trial, I would otherwise have imposed four years and six months' imprisonment with a minimum of three years and three months to serve before parole eligibility.
95Any other collateral matters, Mr Singh?
96MR SINGH: No, thank you. Just the forfeiture orders.
97HER HONOUR: Forfeiture orders. Let me just check those. Do we have them? All right, good. I will have a look. And no opposition, Mr Richter?
98MR RICHTER: No opposition, Your Honour, and nothing further from me.
99HER HONOUR: Yes, I have got the firearm and ammunition. I will make those orders as requested.
100MR SINGH: And there is a second forfeiture order, Your Honour, in relation to the handling stolen goods charge.
101HER HONOUR: Yes.
102MR SINGH: You should have two copies.
103HER HONOUR: Yes. Thank you, I will make that order as well.
104MR SINGH: As Your Honour pleases.
105HER HONOUR: Thank you very much.
106MR SINGH: Thank you.
107MR RICHTER: Thank you, Your Honour.
108MR SINGH: As Your Honour pleases.
- - -
0