Director of Public Prosecutions v Northe

[2023] VCC 1889

IN THE COUNTY COURT OF VICTORIA

AT LATROBE VALLEY

CRIMINAL DIVISION

Revised
(Not) Restricted
Suitable for Publication

GENERAL LIST

Case No. CR-23-00722
Indictment No. N12151475

DIRECTOR OF PUBLIC PROSECUTIONS

v

RUSSELL NORTHE

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JUDGE:	HIS HONOUR JUDGE McINERNEY
WHERE HELD:	Latrobe Valley
DATE OF PLEA HEARING:	27 September 2023
DATE OF SENTENCE:	25 October 2023
CASE MAY BE CITED AS:	Director of Public Prosecutions v Northe
MEDIUM NEUTRAL CITATION:	[2023] VCC 1889

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Common Law Misconduct in Public Office by Member of Parliament, - upper range sophisticated criminality – Verdins limbs 5 and 6 – alcohol and gambling addictions – proceeds used to gamble – suicide risk – hardship in prison - prior good character – successful work history – remorse – extra curial punishment – public opprobrium – early plea – spectacular fall from grace – constellation of mitigating factors – imprisonment

Legislation Cited:      Crimes Act 1958, Sentencing Act 1991

Cases Cited:R v Huy Vinh Quach (2010) 201 A Crim R 522; Attorney General’s reference (No 3 of 2003) [2005] QB 73; R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269; Worboyes v R [2021] VSCA 169; Borg v R [2020] VSCA 191; Hudson v R [2010] VSCA 332; R v Vu Lang Pham (2015) 256 CLR 550; DPP v Johnson [2023] VCC 810; Gopinath v R [2019] VSCA 172; DPP v Faure [2022] VCC 613; DPP v McGovern [2019] VCC 2100; DPP v Roache [2023] VCC 1034; DPP v Beitner [2023] VCC 1893; Director of Public Prosecutions (DPP) v Dalgliesh (Pseudonym) (2017) 262 CLR 428; The Queen v Nicholas Vardouniotis [2007] VSCA 62

Sentence:                  Total Effective Sentence: 21 months, non-parole period: 12 months

6AAA: TES 36 months, non-parole period: 22 months

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr. Hancock	Solicitor for the Office of Public Prosecutions
For the Offender	Mr C Tom	Tyler Tipping and Woods

HIS HONOUR:

1On 27 Day September 2023, at Latrobe Valley, you, Mr Russell Northe, pleaded guilty to the two charges set out in Indictment No. N12151475.  Mr Hancock appeared for the DPP, and Mr Tom for you.

2You were born in February 1966 and this criminal behaviour took place when you were aged fifty-three to fifty-four, you now being aged fifty-seven. The two charges on the Indictment relate to the common law charge of misconduct in public office, which occurred respectively on 17 April 2019 and 20 April 2020. Pursuant to s320 of the Crimes Act 1958, the maximum penalty for the offence is ten years’ imprisonment.

3At the time of the offences, you were a Member of Parliament, indeed, the Member for Morwell from 2006 to 2022.  In 2014, while a member of the National Party, you were the Minister for Small Business and Minister for Energy and Resources.  In 2018 at the election, you stood as an independent and were re-elected as the representative for Morwell, through to when you resigned in 2022.

4Analysis would demonstrate that it is unique in Victoria for a Member of Parliament to be charged with this offence.  The offence, itself, has been considered on numerous occasions, most recently in R v Huy Vinh Quach (2010) 201 A Crim R 522. I refer to the judgment of Redlich JA, as he then was, at [46], where he describes the elements of such charge:

“So amended, the elements of the offence are:

(1) a public official;

(2)  in the course of or connected to his public office;

(3) wilfully misconduct himself; by act or omission, for example, by wilfully neglecting or failing to perform his duty;

(4) without reasonable excuse or justification; and

(5) where such misconduct is serious and meriting criminal punishment having regard to the responsibilities of the office and the officeholder, the importance of the public objects which they serve and the nature and extent of the departure from those objects.”

5His Honour, at [44], in reference to Attorney General’s reference (No 3 of 2003) [2005] QB 73, at [56], noted the analysis therein that the “serious departure from proper standards…must be so far below acceptable standards as to amount to an abuse of the public’s trust in the office holder”. Your offending clearly fits within the scope of such analysis.

6Mr Tom accepted the facts as detailed in the Prosecution opening, Exhibit “A”.

The offending

7The prosecution have submitted that the offending in this case is in the upper range, and therefore deserving of a sentence of imprisonment.  The defence, while accepting the classification of the criminality, have submitted, in all of the circumstances, that an appropriate sentence can be effected by way of a community correction order, without incarceration.

Analysis of criminality

8I find that your criminality was sophisticated, protracted and brazen, in that you must have presumed, given your standing, that your applications would not be checked. You used your office as a means of hiding the manner in which you committed these crimes by lodging false documentation to support the claims for administrative expenditure funding, for an elected member of the Parliament of Victoria. Indeed it appears that your fraudulent applications worked, however the Independent Broad-based Anti-Corruption Commission (“IBAC “) were alerted in late 2020, but I have not been advised by whom or how.

9The offending was complex, in that it involved, in each instance:

(a)   the preparation by you of false invoices;

(b)   the preparation by you of false bank statements, with entries supporting expenditures, never in fact made;

(c)   the forwarding of such invoices and bank statements to an auditor, in order to dupe the auditor to provide the required auditing certificate to be forwarded in support of the administrative expenditure funding claim. Again, I suggest using your standing to obtain the certificates; and

(d)   the forwarding of false invoices, audit certification, and false banking statements to the Office of the Electoral Commission, in order to be reimbursed for expenditure, which had not in fact occurred.

10A closer analysis of the sophistication and complexity of the offending begins with your election to Parliament on 24 November 2018 as the independent Member for Morwell.  Thereafter, on 24 December 2018, an administrative expenditure funding application was lodged by you as an independent elected Member (see Exhibit “C”).

Charge 1: 

11Prior to 17 April 2019, you prepared false invoices as to alleged administrative assistance given to you in the sum of $19,562.40, and the payment of a bond for the rental of electoral premises in the sum of $3,100.  You also prepared false bank statements, which included within them, proof of the payment of such sums.  You then forwarded the false invoices and bank statements to an auditor.  The auditor prepared for you, as a result of perusing such documentation, an Audit Certificate dated the 17 April 2019.  Having been provided with the auditing certificate, also on the 17 April 2019, you forwarded Exhibit “D”, the administrative expenditure return for the calendar year 2018, on behalf of yourself as an independent elected Member.  In such return, you made the claims as indicated, which in fact exceed the entitlement for the period.  As such, you were able to retain the payments you had received, being $20,273.97, for such calendar year. 

Charge 2

12Prior to 16 April 2020, you prepared three false invoices for the alleged provision of staff, a further false invoice in regard to rent and a false invoice for the purchase of a printer.  The invoices amounted in total to $153,151.  In fact, no payments were made for administrative staff and hence a false claim was made for a total figure of $127,105. An excessive amount was sought by way of rent payments in the sum of $37,200, which represented a false excess of $20,150. The claim for the printer in the sum of $5,896 had, in fact, been already claimed the year before. 

13Similarly to the details of Charge 1, prior to 16 April 2020, you forwarded the false invoices in regard to such sums, together with false bank statements to prove the alleged outlays for auditing.  On 20 April 2020, you received, from the auditor, an audit certification.  On 20 April 2020, you forwarded, as part of your administrative expenditure funding return (Exhibit E) for the 2019 calendar year as an independent elected Member, such form being dated 16 April 2020, the false funding return, the audit certificate, false invoices and false bank statements.  The actual claim made was for $172,001, of which the sum of $153,151 was false. 

14The total false claims made in regard to both Charges 1 and 2 amounts to $173,424.93.

15The IBAC inquiry as to such actions began on 1 May 2020 and, thereafter, a warrant to search your Parliamentary office and premises was executed on 19 November 2020.

16It is to be noted that, as of 13 December 2018, albeit your history of being in Parliament for twelve years, you had undertaken a webinar training program as to the lodging of appropriate funding applications for independent elected Members.

17I would reject the defence submission that the offending is not a grave example of the offence.[1]

[1] Exhibit 1 – [29]

Background to offending

18This offending occurred from, approximately, April 2019 to April 2020.  It would appear that the background to such offending may well have begun when you were elected a member of Parliament in 2006.  Thereafter, geographical isolation from your family seemed to have created difficulties, not only with the family, but with yourself.  As a result of such difficulties, it would appear that you became socially isolated and found handling your role as a husband, father, Member and a Minister difficult.  From the character evidence tendered, it would appear that you were a hardworking and excellent member. Such occupation appears to have been made more difficult, in particular, by the Morwell pit fire of 2009 and the bushfires of 2019.  It would appear you also had difficulties within your own party, as to differing aspirations.  Certainly, such led to you resigning from the National Party and becoming an Independent Member at the 2018 election.

19It would appear that your social isolation led to you abusing alcohol, which escalated as a problem from 2015, and to a gambling addiction, both by way of betting upon races and at gambling venues to an excessive degree.  Your lifestyle was such that apparently you had also made inappropriate investment decisions and lost significant funds thereby. 

20You had been encountering mental health issues with your life and lifestyle, prior to an attempted suicide in February 2021, following threatened publication of your crimes, which led to your admission to the Delmont Psychiatric Hospital. You had encountered issues with depression on three prior occasions and were, in fact, prescribed antidepressant medication in 2017, which you did not take.  You took the opportunity to consult with Mr Gus Carfi, psychologist, in 2017, under the Victorian Parliament Employees Assistance Program, where you detailed the issues I have referred to above.  It is interesting, in Mr Carfi’s report (Exhibit 6 of 9 January 2023), he noted as follows:

“In the course of ongoing sessions Mr Northe was able to acknowledge that he had become addicted to alcohol and gambling and that the combination of a dependence on alcohol and gambling became destructive. Mr Northe reported that because of gambling in an alcohol effected state, he began to mount up gambling losses and this coincided with some business activities beginning to struggle. Mr Northe reported that given his situation he became desperate to recoup his losses by continuing to gamble, borrowing money, and accessing money [my comment, not doubt the sums referred to as part of these crimes]. Mr Northe did this when he was also in an alcohol impacted state.”

21I note, on page 1 of Mr Carfi’s report, the reference to you stating that, to overcome the isolation and distress you felt in Melbourne, you began visiting gaming venues and gambling.  Indeed, in the history given to Dr Anthony Cidoni, in Exhibit 4, being his report of March 2023, at [30], there is reference to excessive losses from gambling, such that you incurred debts of approximately $400,000. 

22Given that gambling with the Tabcorp and/or Ladbrokes cannot be done on credit, as an example of the betting indulged in from 2014, in the year of 2019, when the first offence was committed, you lodged into your Tabcorp account, the sum $143,893 of Victorian Electoral Commission money, along with other deposits. The account showed, in 2019, 3,420 bets, producing a net loss to Tabcorp of $180,841.42.  In the same year, you deposited $34,650 of Victorian Electoral Commission money into your Ladbrokes gambling account with other deposits and as a result of placing over one thousand bets you recorded losses to Ladbrokes’ of $42,500.

23You have a dated criminal history of unrelated offending, and certainly come before the Court with no history for dishonesty offences.

24Given the IBAC inquiry, you were apparently invited to make a record of interview in August 2021, which you declined, and were ultimately charged with these two offences in September 2022.

Plea

25In support of your submission, Mr Tom put to the Court the following factors:

(a) Your personal and successful work history, as described in Exhibit 1, [8] to [16];

(b)   Your prior character and personal qualities and success in business and as a Parliamentarian, as amply attested to by:

(i)The expansive and impressive character references of:

ꟷ Gary Blackwood, your parliamentary colleague, Exhibit 9, which includes your CV

ꟷ Charlotte Anderson, Exhibit 10

ꟷ Father Bickley, Exhibit 13, the Parish priest of St Michaels, Traralgon

ꟷ Tony and Donna Lawless, Exhibit 14

ꟷ Chris Madsen, Exhibit 16.

In summary of such evidence, may I quote from Mr and Mrs Lawless’s reference, Exhibit 14, where they say:

“Deep down we know that Russell has a good heart. He is a supporting and loving husband, father and grandfather and speaks fondly of his family, which by his own admission is not perfect. He is a sportsman, community person, he is genuine and caring, he is flawed, he is human.”;

(ii)Expansive acknowledgement by such referees of your community service, being:

ꟷ   Gary Blackwood, Exhibit 9;

ꟷ Charlotte Anderson as to specific assistance to the ASCO organisation, given your difficult family experience in this regard, Exhibit 11;

ꟷ Ange Gordon, Exhibit 17, as to your assistance during the Black Saturday fires; and

ꟷ Asher Lederman from Gambler’s Help Southern, Exhibit 8

If I might quote, firstly, from Ms Anderson’s reference:

“His contributions to supporting families affected by addiction and his broader efforts to enhance the well-being of the community are truly commendable. Russell's integrity and genuine care for others have made a lasting impact on both our program and the community at large. I have no doubt that he will continue to be an asset in any endeavour he chooses to pursue.”

And, if I may further quote from Ange Gordon, when talking about the events of Black Saturday in 2009, she/he said this:

“Russell was my constant source of strength and support throughout the weeks, months and years following this event. … .

…

… Russell was one of the few individuals who came into our apocalyptic community and stayed with us for the recovery journey.”

Mr/Ms Gordon, being the Chair of the Traralgon South and District Community Recovery Committee;

(iii)The steps taken by you as to the obtaining of employment post offence disclosure ꟷ see Benjamin Howell, Exhibit 12;

(iv)The trauma caused to yourself and broader family as to living with your crimes and their impact, so plaintively put by your daughter-in-law, Emily Northe in Exhibit 15;

(v)The quite universal opinion of all of those character referees as to your remorse as confirmed by your treating psychologist, Mr Carfi, Exhibit 6, page 3, and the medico-legal psychiatrist’s opinion of Dr Cidoni, Exhibit 5, who opined in August of this year that given:

“… [your] very prominent guilt and shame in relation to [your] major depressive disorder … [you exhibit] these features [of remorse] to one of the most significant degrees that I have ever seen.”

Your mental history

26In this regard, such was not put as in any way diminishing culpability, but as to understanding the background to this criminality, as I have earlier detailed.

27Since 2021, you have reported that you have successfully controlled both your alcohol and gambling addictions.

28You were admitted to Delmont Psychiatric Hospital after your attempted suicide in February 2021, and were supervised there by Dr Ajit Emmanuel, psychiatrist, who diagnosed a major depressive disorder with anxiety, and alcohol disorder in remission (Exhibit 7).

29You were again admitted in October 2022, with a diagnosis of bipolar disorder and depressive state (Exhibit 7). 

30In a report of January 2023, Dr Emmanuel (Exhibit 2) opines that the behavioural changes, impaired thinking and capacity to make rational decisions and perceptions, could be the result of an undetected and untreated bipolar disorder.  Despite your improvements, you were, in his opinion, at that time subject to a vulnerability to lapse into serious depression. 

31In a subsequent report (Exhibit 3) of September 2023, Dr Emmanuel saw you in response to an emotional reaction to this Court case being imminent.  He opined that the fear of this Court sentencing you to jail was making you feel suicidal.

32You remain under treatment from the psychologist, Mr Carfi, who I referred to.  I note that you lodged a WorkCover claim as to your mental condition, which was accepted.

33As Mr Carfi remarks on page 2, from 2020 to the present, you continue to be impacted by the repercussions of your addictions and behaviours, the difficult position you have put others in, and the knowledge that this date (in court) must come.

34As Mr Carfi says, you continue to be impacted by ongoing symptoms, which required further admission to Delmont in October 2022 due to depression, anxiety, suicidal ideation and reduced functioning. Indeed as shown in Exhibit 21 and 22 from your treating psychiatrist you have been, and are admitted to Delmont for exacerbation of symptoms brought about by your concern as to this court case.  

35Mr Carfi says that your sense of self-loathing is severe, and perpetuates your symptoms and risk of self-harm.

36Mr Carfi was concerned for you in regard to the impact of this hearing, and the inevitable publicity to befall you, and as to how he would cope with such.

37As reported by Dr Cidoni, you continue on medications prescribed by Dr Emmanuel, who sees you every three months, followed up by weekly attendances with your psychologist, Mr Carfi.

38It is of interest that Dr Cidoni opines that the major driver of these crimes was the gambling disorder which led to you needing funds to gamble to the extent illustrated.

39Dr Cidoni considers that the completion of these legal proceedings will be of considerable impact to your recovery (page 9, Exhibit 5).  However, at [31], he expresses fear of the impact of incarceration producing a deterioration of your mental state and a high risk of suicide.  Dr Cidoni considers the prospects of your rehabilitation are high, with which I agree, and I have already referred to the expressed opinion of Dr Cidoni as to the genuine remorse shown by you.

40Given the totality of such evidence, I accept the submission of Mr Tom that principles 5 and 6, as set out in Verdins[2] are applicable in this case.  That is, that a sentence of imprisonment, given your mental condition, will weigh more heavily on you than a person in normal health and, secondly, that such condition must be taken as a mitigatory factor on the basis that there is, as prognosticated, a serious risk that imprisonment will have a significant adverse effect on your mental health. In that regard I note the most recent letter from Dr Emmanuel dated 19 October 2023 (Exhibit 21) and dated 20 October 2023 (Exhibit 22).

[2]R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269 at paragraph [32]

41Today Mr Tom has submitted that given your current condition principle 2 of Verdins is also applicable. He has submitted that such principle in addition to his earlier submissions and consideration of the decision of Vardouniotis,[3] should lead the Court to accept the defence submission that a Community Correction Order would be an appropriate sentence. Mr Tom in such argument also relied on [72] of Mr Cidoni’s report.

[3]The Queen v Vardouniotis [2007] 2007 VSCA 62.

Plea of guilty

42I accept that the plea in this instance is both an early plea and one which was utilitarian.  Such plea facilitated the course of justice and I find, over and above the remorse so demonstrated, that you have shown genuine remorse for your criminal actions.  Despite the improvement in the pandemic circumstance, I accept that the principles of Worboyes v R[4] apply, even though the delays in this matter being dealt with were accentuated by questions of your fitness to plead.  I accept that, even though at the time the plea was indicated in May of this year the pandemic had reduced to a considerable degree, your plea should be given enhanced and greater weight in mitigation and amelioration of sentence in the totality of circumstances, as detailed in Worboyes.[5]

[4][2021] VSCA 169

[5](Ibid) at paragraph [39]

Delay

43The offending in this matter ceased in April 2020 and you were charged subsequent to the IBAC investigation, in September 2022.  While you were unaware of the IBAC investigation, the execution of the warrant in November 2020 would have alerted you to such.  Hence, three-and-a-half years have elapsed since the offending and I accept the submission of Mr Tom that such has been no fault of yours.  The two aspects relevant with this delay, I do take into account in mitigation, being that as has been expressed by your medical practitioners, the inevitability of this plea and sentence has been hanging over you for a considerable period and, further, during such period you have effected rehabilitation, insofar as your gambling and drink addictions; you have expressed genuine remorse, admitted your guilt; and have sought to continue your life, albeit, with difficulties by way of employment and relocation of your premises.

Extra-curial punishment

44I accept that, as a result of these crimes, you have been subjected to personal humiliation and public opprobrium, which will be no doubt accentuated by the reporting of this sentence.  Of course, such reactions come with the position which you held, and is to be expected.  As your counsel said, your crimes and their detection have led to a “spectacular downfall”, which was a reference to Borg v R[6] as a “spectacular fall from grace”, insofar as that case dealt with a Registrar in the Magistrates’ Court.

[6][2020] VSCA 191 at paragraph [53]

45To the extent such has contributed to your depression, to your feelings of shame as to the effect such publicity has had on your family, and the impact on your employability, I accept that, when looked at globally, such represents extra-curial punishment, which I take into account by way of mitigation of your sentence.

46I accept Mr Tom’s submission as to parsimony[7] and sentencing purposes.[8]

[7]Outline of Submissions on behalf of Russell John NORTHE at paragraph [64]

[8](Ibid) at paragraph [62]

Comparable cases

47The prosecution handed to the Court a number of cases set out in Exhibit 20, which were discussed during the hearing.  While of some assistance in the instinctive synthesis process that one must undertake in sentencing, all relate to their own circumstances and facts.  As was said in Hudson v R:[9]

“‘Like’ cases can only, at best, provide a general guide or impression as to the appropriate range of sentences.  In that context it has been said on many occasions that ‘comparable cases’ can only provide limited assistance to this Court.  They may however be used in search of unifying principles.”

(Footnotes omitted.)

[9][2010] VSCA 332 at paragraph [29]

And, further, as said by the High Court in R v Vu Lang Pham, that they may be used as:[10]

“… ‘yardsticks’ that may serve to illustrate … the possible range of sentences available.”

[10](2015) 256 CLR 550 at [29]

48As I have already referred to, there is comparison with the Borg case, for example, as to the “fall from grace” suffered by you.  However, in that case, there were exceptional circumstances taken into account related to Ms Borg’s young child.

49In the matter of DPP v Johnson, a decision of this Court,[11] such concerned a police officer who had breached his obligations in regard to LEAP records.  Again, there was some commonality, insofar as extra-curial punishment was concerned and loss of capacity for employment.

[11][2023] VCC 810

50In Gopinath v R,[12] the case really related essentially on appeal to a mistake made as to the maximum penalty relative to the major charge.  There was no real issue before the Court as to a community correction order being passed in the lower court on the misconduct charge, in the circumstances relevant to the police officer in that case. I have also considered DPP v McGovern[13] and DPP v Faure[14].

[12][2019[ VSCA 172

[13] [2019] VCC 2100

[14] [2022] VCC 613

51I have also looked at the cases referred to by Mr Tom, insofar as to extra-curial punishment, and I have advised counsel since the hearing that I have also considered, generally, the sentences imposed in this Court by the Chief Judge in DPP v Roache[15] and by Judge O’Connell in DPP v Beitner,[16] which was handed down on 17 October 2023.  Primarily, these cases were of assistance in dealing with the question of serious mental health issues and sentencing, both involved issues as to Alzheimer’s Disease and/or dementia, and aged and affirmed accused. In addition last night Mr Tom forwarded me the decision in Vardouniotis and has referred to same in his submission today.

[15][2023] VCC 1034

[16][2023] VCC 1893

52If I may quote, as a summary of the matters I have referred to as presented by Mr Tom on your behalf, Mr Northe, from Judge O’Connell’s sentence in Beitner[17]  “I am confronted by a constellation of mitigating factors”. It is to be noted that, in that case, his Honour found such factors to be quite exceptional.

[17]At paragraph [49]

53This sentence, insofar as the balancing process is required, has been exceptionally demanding.

54Given the constellation of mitigating factors relied upon, which I have accepted as powerful factors in your favour, the balancing process with the other important factors in this sentence being the role of general deterrence, just punishment and denunciation, has been exquisite.

55I, of course, must steadily bear in mind that the maximum penalty for each offence to which you have pleaded guilty is ten years’ imprisonment.  In that regard, I also bear in mind my assessment of your culpability, as to both charges, as being in the upper level. 

56In particular, in my consideration has been the factor of the consequences of a sentence of imprisonment for you in regard to your mental health condition globally, which is of powerful mitigation in your case, the hardship you will experience in prison by way of your mental health issues, and not the least the issue of the increased risk of suicide, which were very weighty factors in mitigation.

57I must, however, rely on Corrections to provide appropriate care for you in jail.  As I comprehend the situation, you will continue to be able to access your psychologist remotely and/or in person in accordance with the Parliamentary EAP Scheme and/or the Worker’s Compensation Scheme.  For like reason, I would also consider that Dr Emmanuel would be able to attend upon you, in particular as to your medication, and in regard to any exacerbations you may suffer.

58In this regard, it is to be hoped that Dr Cidoni is correct in his view that the finalisation of the legal process will be to your benefit mentally.

59Ultimately, in effecting the balancing process involved in the instinctive process of sentencing, your sentence must still have a denunciating and deterrent effect.  This consideration, which reflects the gravity of your offending, must be balanced against the “constellation of factors” in personal mitigation which I have referred to.

60You are entitled, as said by the High Court in Director of Public Prosecutions (DPP) v Dalgleish (Pseudonym),[18] to a just sentence based upon the facts of your offending, which I hope to render to you. 

[18](2017) 262 CLR 428 at [49]

61Having regard to the gravity of your offending, I have decided that the only appropriate sentence, making full allowance for the principle of parsimony, is that of imprisonment, involving a head sentence and a non-parole sentence.  In my view, no other sentence would be appropriate.

62I have also perused the sentencing statistics provided, being Exhibit “F”, being for the period 1 July 2016 to 30 June 2021.

63In regard to my conclusion, I note that, during the hearing, the prosecution submitted that a combined sentence was within range and, indeed, you had a positive report from Community Corrections, which has been filed as Exhibit “G”.  In so far as a Community Corrections Order is concerned, I think that the words of Priest JA in Hutchinson v R[19] are apposite: -

“Acknowledging that a CCO might be appropriate ‘even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment’, it should not be thought that Boulton offers a ‘Get Out of Jail Free card’ in situations where a sentence of imprisonment is necessary in a given case to satisfy the various purposes for which a sentence may be imposed. One of the purposes for which a sentence may be imposed is, of course ‘to punish the offender to an extent and in a manner which is just in all of the circumstances’.[20] There will be cases – indeed many cases – where, having regard to the seriousness of the offending, a CCO will be insufficiently punitive to satisfy the need to punish the offender in a manner which, in all of the circumstances, is just. At the risk of again traversing well-trodden ground, it is axiomatic that in every case the sentence imposed must depend on its own facts, including the circumstances of the offending and the offender, and the circumstances of aggravation and mitigation.”

[19] [2015] VSCA 115 at [17]

[20]        Sentencing Act 1991, s5(1)(a)

64My assessment of your skills and abilities is that, once you have served your sentence and been admitted to parole, you will be able to adapt to your new life.  I see no need for supervision.  My assessment of you, based upon the strong character evidence presented to this Court, is that you will soon obtain appropriate employment and resume your voluntary community contributions without any compunction.

65As I have said, once you have served your sentence, I am sure you will continue to effect rehabilitation and not be likely to offend again.

66I therefore come to your sentence.  In circumstances you may remain seated.

(a)   In regard to Charge 1, you will be sentenced to imprisonment for ten months’;

(b)   In regard to Charge 2, you will be sentenced to imprisonment for eighteen months’.

67I order that three months of the sentence on Charge 1 be served cumulatively with the sentence on Charge 2, making a total effective sentence of twenty-one months. 

68Pursuant to s18, I order that you be eligible for parole after the service of twelve months’ jail. 

69I am required by Parliament to indicate to you the effect of you pleading guilty pursuant to s6AAA of the Sentencing Act 1991 and, in that regard, I indicate to you that, had you not pleaded guilty, the sentence I would have pronounced in regard to Charge 1 would have been one of fifteen months and, Charge 2, twenty-six months. I would have cumulated ten months’ of the sentence on Charge 1 with the sentence on Charge 2, making a total effective sentence of thirty-six months and I would have imposed, in regard to that total effective sentence, a non-parole period of twenty-two months.

70I direct that all medical reports tendered in this hearing, being Exhibits 2 – 7, and Exhibit 20 - 22 be provided to Corrections, and that Mr Northe be put on suicide alert from this moment. Corrections Officers, I especially express this to you, and ask that you immediately report this to your superior as to the lock-up in this Court, the journey to the Remand Centre and to the officer in charge at the Remand Centre.

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