Director of Public Prosecutions v O'Blein
[2013] VCC 1022
•18 June 2013
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-13-00838
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DAVID O'BLEIN |
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JUDGE: | HIS HONOUR JUDGE LACAVA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 18 June 2013 | |
CASE MAY BE CITED AS: | DPP v O'Blein | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1022 | |
REASONS FOR SENTENCE
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Subject: Armed Robbery
Catchwords:
Legislation Cited:
Cases Cited:
Sentence: 4 years imprisonment with 2 non parole.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms F. Cockram | |
| For the Accused | Ms D. Lamovie |
HIS HONOUR:
1 David O'Blein you have pleaded guilty to one charge of armed robbery. The offence occurred on the 9 February 2013.
2 In passing sentence upon you I must have regard to the maximum sentence prescribed by the parliament for the offence that you have pleaded guilty to. The maximum sentence for armed robbery is 25 years imprisonment.
3 At the time that you pleaded guilty to the charge you also admitted a lengthy criminal history. When you committed this offence you were on parole release from earlier offending. That is an aggravating factor in your offending and is also relevant because, absent exceptional circumstances, any sentence I impose for this offence must be served cumulatively upon the sentence that you are presently serving. (See s.13(3B) of the Sentencing Act 1991 (“the Act”)).
4 In arriving at a sentence in such circumstances I must also have regard to the principle of totality in sentencing. See, C A v. The Queen [2012] VSCA 199, Hunter v. R (2006) 14 VR 336 at 341.
5 Ms Woodward who appeared as counsel on your behalf conceded on the plea that exceptional circumstances do not exist here.
6 You had been re-released on parole on 6 December 2012, about 8 weeks prior to this offending. That release on parole was from a sentence imposed in this court by Judge Tinney on 4 November 2010. On that occasion His Honour sentenced you to a total effective sentence of four (4) years and three (3) months for offences involving theft of a car and petrol, armed robbery and possession for controlled weapons. His Honour fixed a period of two and a half years during which you were not to be released on parole and declared 192 days of pre-sentence detention.
7 When he sentenced you Judge Tinney expressed the hope that you may be able to take some steps towards reforming your life on release. Unfortunately you did not heed what His Honour said and you committed this offence soon after your release on parole.
8 You were remanded in custody on 14 February 2013 and your parole was cancelled on 20 February 2013. At that date you still had one (1) year seven (7) months and twenty (20) days to serve under the sentence imposed by Judge Tinney.
9 It is agreed that you have served eleven (11) days pre-sentence detention for the offence that I must sentence you for.
10 The circumstances of your offending are summarised in a prosecution opening which was tendered and marked as Exhibit A. It was read in open court by the learned prosecutor Ms Cockram and accepted by your counsel as forming a proper basis upon which I can proceed to sentence you. It is not necessary that I repeat what is contained in the prosecution opening except in summary form.
11 On the day of the offence you had left a friends’ house armed with a syringe intending to rob the Caltex service Station in Preston. You waited outside the service station observing the scene for about 10 minutes before entering. You covered your head with a pillow case and approached the attendant who was working alone. You lifted the syringe from which you had taken the needle towards the attendant and said to him:
12 "I need money, I need money for drugs”.
13 The attendant took $20.00 from the till and handed it to you. You asked for more but the attendant refused and reached for a box cutter located behind the counter. At this point you started to leave yelling at the attendant as you left. As you approached the door you removed the pillow case from your face. The robbery was filmed on CCTV. You fled the service station but were located and arrested a short time later. You participated in a record of interview and made full admissions.
14 Offending of this kind is prevalent and serious. The threat of violence to those such as shop assistants and petrol station attendants who are unarmed and soft targets is real and prevalent. Although you made no specific threat to the petrol station attendant you confronted he none the less felt shocked by what you did. It is for these reasons that in sentencing for offending of this kind a sentencing court must have regard to proper application of the principle of general deterrence. Those who seek to offend as you have must be deterred by the sentence imposed. The sentence imposed must also properly reflect denunciation of your offending. A court must also have due regard to protection of the public from the likes of you. In your case, having regard to your extensive criminal history, in arriving at an appropriate sentence I must have regard to proper application of the principles of specific deterrence. In short the sentence I impose must deter you and others against offending in this way.
15 Whilst your offending is serious it was relatively unsophisticated. It was clearly motivated by the need for money to buy drugs for yourself. Whilst you were armed with a syringe without a needle to intimidate your victim your offending was not otherwise accompanied by violence or direct threats of violence or harm. That in my view reduces the level of seriousness of the offending. I admitted into evidence a Victim Impact Statement from the attendant at the service station which I have taken into account in passing sentence. Your offending understandably left him scared. As an example of the offence of armed robbery in my opinion this offence falls towards the lower end but because offending in such circumstances almost always scares and intimidates the victim it always remains a serious offence.
16 On my calculations you have made 13 separate court appearances up until the time of this offending commencing in the Children's Court on 24 June 2003 when you were aged 14. However, you have two prior convictions for the offence of armed robbery. The first was in this court on 8 April 2009. After a successful appeal the Court of Appeal imposed a sentence of 30 months imprisonment to be served in a Youth Justice Centre. At that time you were also convicted of possession of a prohibited weapon.
17 The Court of Appeal dealt with you on 10 of June 2009. On 4 February 2010 you appeared before the Swan Hill Magistrates’ Court charged with recklessly causing injury and other offences. You were sentenced to 56 days imprisonment which amounted to time served and you were released on a Community Based Order for 12 months. There were conditions that you undergo treatment for addiction to drugs.
18 But you breached the Community Based Order in April 2010 when you committed the second Armed Robbery Offence for which Judge Tinney sentenced you on 4 November 2010.
19 This is therefore the third time you have committed this offence and in the past the courts have recognised your personal circumstances and the difficulties which you face in life and have given you the opportunity to change your life and to rehabilitate yourself. Unfortunately you have been either unwilling or unable to do so. I have read Judge Tinney’s sentencing remarks. Much of what His Honour said at that time has remained unchanged.
20 Your life I think can be best described as tragic. You are aged 24 and were taken into care as a child due to abuse. Instead of being cared for and protected you were subjected to further abuse both sexually and emotionally. You were moved repeatedly to different foster homes.
21 You were born in Penrith in NSW and your parents separated when you were a baby. At age 5 you were placed in foster care due to protective concerns. There are allegations you were sexually abused by your step father and maternal grandfather. Over 13 years you were moved from one carer to the next. By aged 10 you had experienced 30 different foster care placements. In consequence you schooling was constantly interrupted and you struggled for a proper identity and to form proper attachment to anyone. In foster care you were subjected to physical, sexual and emotional abuse over time. You have had no real contact with your biological father and minimal contact with your mother and step-sister.
22 Your schooling has been limited. You passed Year 8 but left school half way through Year 9. You enrolled and completed a TAFE course in cooking and food preparation. You have had limited employment as a farm hand and labouring.
23 You have had one long term relationship of 5 years with Rhiannon which produced a child when you were aged just 17. Sadly that child died soon after birth.
24 You are a drug addict. By aged 12 years you were experimenting with alcohol and cannabis. By aged 13 you had moved to amphetamines which you were using regularly by age 17. For you I accept drugs have been a coping mechanism.
25 I admitted into evidence a psychological report of Dr Nicholas Owens dated 13 May 2013. He has opined inter alia as follows:
26 "It is clear that Mr O'Blein was intoxicated with methamphetamine, cannabis and benzodiazepines at the material time which has resulted in some degree of amnesia for the events. It is highly likely that as a result of his intoxication with these substances he was disinhibited, and was not able to make calm and rational choices. Although he reported onset of paranoid ideas within a couple of days of starting to use drugs with his mate, I do not think that there was any clear connection between his paranoid thinking and the commission of the offence. His motivation for committing the offence was to obtain money with which to buy more drugs. Mr O'Blein's diagnosis has been unclear, judging by the previous reports you have supplied. This is often the case in situations, particularly with younger people, where psychotic symptoms have occurred in the context of drug intoxication.
27 Nevertheless from my understanding Mr O'Blein was not prescribed medication while he was in the community prior to the current offending, and was not suffering from paranoid ideation at this time. His paranoid thoughts started after commencement of drug use, and have persisted for three months. Even after stopping drug use, although he is currently prescribed antipsychotic treatment, he is not taking it. To my mind this is suggestive of psychosis induced by multiple drugs, predominantly delusional.
28 Mr O'Blein also suffers from significant depressive symptoms at present. Again these are not present - I beg your pardon. Again there were not present prior to his current incarceration. These include pervasive low mood, loss of interest, sleep disturbance, and suicidal ideation, as well as tearfulness. It is likely that he also fulfils criteria for a moderate depressive episode. I have advised Mr O'Blein to take the medication he is being prescribed, as it will most likely improve his paranoid thoughts, and may also lift his mood to some degree. It may also improve with antidepressant treatment. However at present I do not think that Mr O'Blein is so mentally unwell that he requires involuntary treatment, or that he is unable to determine the reality of his situation pursuant - situation or to make choices about his treatment, or his legal situation.
29 He could be assisted by support and gentle psycho education about the connection between drug use and his current mental state, as well as about the beneficial effect of antipsychotic medication which can be provided by prison mental health staff. Should his condition deteriorate, for example if he stops eating or drinking, or he withdraws to himself for long periods, or engages in deliberate harm, I recommend transfer to the acute assessment unit at Melbourne Assessment Prison for more thorough evaluation.
30 Mr O'Blein's childhood history of tragic, and it is abundantly clear that he has never had the chance to form lasting attachments to others. Has been emotionally, physically and sexually abused, and has likely never developed any healthy sense of identity. He has turned to drugs from a very early age in order to cope with life, and his criminal history has closely tracked his history of drug use.
31 He remains isolated from family, and has little support from anyone. His one experience of an intimate relationship with a woman seems to have been characterised by exploitation followed by rejection, a pattern which has been all too familiar to him throughout his childhood. He is not without insight into the cyclic nature of his troubles, and at interview with me it was apparent that he feels trapped in a repetitive loop of drug abuse and offending, for which he blames himself. It is likely that he has emerged into adult life with a personality disorder preceded by conduct disorder as an adolescent, which self predisposes him to develop problems with mood and ongoing drug use. However I am unable to diagnose this specifically without further assessment.
32 There are features to suggest that he has developed a degree of institutionalisation. Example his responses to the police interview, and has no coping skills for living in the community, other than drug use and engagement in criminal acts to finance his drug use. This will be an ongoing problem, and I would recommend that he engage in programs aimed at improving his coping skills and assisting him with practical living skills, social skills and engaging him in some form of purposeful activity. Example supported employment or training. It is clear that he needs ongoing drug and alcohol counselling, and psycho education."
33 I accept the opinions of Dr Owens.
34 I also admitted into evidence a psychiatric report from Dr Anthony Cidoni. He opined inter alia as follows:
35 "Mr O'Blein has suffered from significant psychotic symptoms, and as raised by both Drs Deakin and Reid, the main issue is whether these symptoms are purely drug induced, particularly due to amphetamine and cannabis, or whether he has an underlying enduring psychotic illness such as schizophrenia. The persistence of Mr O'Blein's symptoms in the setting of reduced substance use, raises the prospect that he does have schizophrenia and he should be monitored further to clarify this issue.
36 I recommend that his treatment with antipsychotic medication continue, if the symptoms are purely drug induced the condition will last as long as the substance use does. The substance use is a trigger for symptoms in any event. Mr O'Blein also has a history of polysubstance abuse, which appears to be a significant driver of his offending. It would be important in reducing the risk of re-offending that Mr O'Blein enter a residential drug rehabilitation placement after he is released from custody. Mr O'Blein has a history of panic disorder, which would benefit from cognitive behavioural therapy.
37
He has had periods of depressed mood that do not clearly meet the threshold of a depressive disorder diagnosis.
Mr O'Blein's offending reflects impulsivity, likely to be part of his personality, and his substance abuse. Both the effects of intoxication and the need to support his habit. The risk of re-offending is intimately linked to his ability to curtail his substance abuse.
38 In relation to the current offending it is likely that the excessive alprazolam and methamphetamine usage has resulted in a degree of disinhibition of behaviour, and disturbance of judgment. In short it is the effect of substances rather than the psychotic disorder to which the offences are connected.
39 Mr O'Blein is likely to find imprisonment more difficult than if he was not suffering from the psychotic condition. It would be critical for Mr O'Blein to reengage with community mental heath services from his release from prison, and he may benefit from referral to the community integration program at Forensicare, to assist with liaison and coordination of care."
40 I also accept the opinions of Dr Cidoni.
41
I also admitted into evidence a psychiatric report of Dr John Reid dated
19 August 2010and a letter from Elizabeth Adams a support worker from VACRO dated 26 April 2013. In passing sentence I have taken all of these matters into account.
42 A couple of matters become clear when all of this evidence is taken into account. Although there is much evidence that you want to rid yourself of addiction to drugs having regard to your tragic background that will prove difficult. Almost all of your offending is linked to your drug use and until such time as you are able to rid yourself of drugs your risk of re-offending remains high.
43 When you are released from prison you will need a high level of support and treatment for your mental health problems and for your drug addiction. There will be little point in you being granted parole without the Parole Board bending over backwards to ensure you have proper and adequate support and a means of obtaining treatment for your various problems. I sincerely hope that care is taken to make sure you get this help and support upon your eventual release from prison, because without it you have little chance of turning your life around and making a worthwhile contribution to society. You are still young and I believe it is not too late for you, and that you can achieve this goal but you will need a lot of help, and you will need to decide yourself that it is a goal that you yourself are determined to achieve.
44 You pleaded guilty to this charge at committal mention on 2 May 2013 and at the earliest opportunity. You cooperated with the police and made relevant admissions. In passing sentence I have taken all this into account as I must. Your plea has saved the time and cost of a committal and trial and in my opinion evidences real remorse on your part for your offending. I have therefore reduced the sentence I would have otherwise imposed had you fallen to be sentenced after a trial.
45 Having regard to the seriousness of your offending and your prior convictions and the fact your offending occurred whilst on parole there is no sentence other than a term of imprisonment that can properly be imposed here and it has not been suggested otherwise. In passing sentence I have had full regard to the mitigating factors urged by your counsel on your plea.
46 Ms Cockram submitted an appropriate sentencing range was a head sentence of three and a half years to six years imprisonment with a non parole period of 2 to 5 years. Ms Woodward did not necessarily disagree with the range submitted by the prosecution but urged that any sentence be moderated by the factors in mitigation and proper application of the totality principle. In passing sentence I have had regard to these matters. Would you please stand Mr O'Blein.
47 On the charge of armed robbery you are convicted and sentenced to a term of imprisonment of four (4) years.
48 Pursuant to s.16(3B) of the Act I direct that the sentence I have imposed this day be served cumulatively upon any sentence of imprisonment which you may be presently serving upon cancellation of any parole order. That sentence will have been served on 10 October 2014.
49 I direct that you serve a minimum term of two (2) years imprisonment before being eligible for release on parole.
50 For the purposes of s.18(4) Sentencing Act 1991 I declare that there has been 11 days pre-sentence detention and that 11 days be reckoned as having been already served of the sentence imposed this day, and be entered in the records of the court and deducted administratively.
51 Lest there be any doubt my understanding in passing this sentence is that your earliest possible release date will now be on or about 29 September 2016. I have reduced the non parole period relative to the head sentence having regard to the principle of totality. From the time of your arrest and cancellation of your parole until your earliest release date you will have served approximately a further three years and seven months after this offence.
52 For the purposes of section 6AAA of the Sentencing Act 1991 I state I have imposed a sentence being a term of imprisonment in respect of the charge in the indictment, and I have reduced the sentence I would have imposed but for your plea of guilty. Had it not been for your plea of guilty to the charge I would have imposed an effective term of imprisonment of five (5) years, and I would have directed that you serve at least three years and four months of that sentence before being eligible for release on parole.
53 I have signed a disposal order for disposal of the syringe you used and the pillow case. That order was not opposed.
54 Are there any matters arising out of that Ms Cockram?
55 MS COCKRAM: Just the order of the sentence Your Honour, the order of what's to be served first.
56 HIS HONOUR: The Act takes care of that, s.16(3B).
57 MS COCKRAM: Yes Your Honour.
58 HIS HONOUR: In compliance with that I've directed that that sentence be served first, this sentence must cumulate upon it.
59 MS COCKRAM: But your non-parole period is the one that comes first then Your Honour, your non-parole period of the two years.
60 HIS HONOUR: No.
61 MS COCKRAM: Then the balance of the - - -
62 HIS HONOUR: No.
63
MS COCKRAM: All right so Your Honour is saying the balance of the
parole - - -
64 HIS HONOUR: I disagree with what you and other counsel put to me on the plea, it's not the law.
65 MS COCKRAM: All right Your Honour. All right Your Honour, so your order is the remainder of the parole sentence, then Your Honour's non-parole period.
66 HIS HONOUR: Correct.
67 MS COCKRAM: Very well Your Honour.
68 HIS HONOUR: That's my understanding of the law, s.16(3B) of the Sentencing Act. Have you got it there?
69 MS COCKRAM: Yes Your Honour I do.
70 HIS HONOUR: "Every term of imprisonment imposed on a person from an offence committed while released under a parole order made in respect of another sentence of imprisonment, the parole sentence must, unless otherwise directed by the court, because of the existence of exceptional circumstances, be served cumulatively on any period of imprisonment which he or she may be required to serve in custody in a prison on cancellation of the parole order."
71 MS COCKRAM: Yes Your Honour, did you have the benefit of those cases Waegh and Dixon that we spoke about on the last occasion? I do apologise Your Honour, and without my learned friend here - our understanding was that Your Honour's non-parole period was the first portion of the sentence to be served, then there was the remainder of the parole sentence.
72 HIS HONOUR: I don't think it works that way, why would it work that way. How could - that would have the parole sentence cumulating upon the sentence I imposed.
73 MS COCKRAM: Once - yes, on the cancelled - - -
74 HIS HONOUR: What's the case you're telling me about?
75 MS COCKRAM: It was a case of Waegh, W-a-e-g-h, and a case of Dixon.
76 HIS HONOUR: What do they say?
77 MS COCKRAM: "The non-parole period to be imposed by me will be served first, followed by the balance of the non-parole sentence." This is in a situation of a parole period being cancelled Your Honour, of a parole being cancelled by the commission of further offences as in in this case.
78 HIS HONOUR: Can I see the case that you are referring to?
79 MS COCKRAM: Yes, there's Dixon and Waegh.
80 HIS HONOUR: Well I've looked at Waegh, I can't see the point that you make.
81 MS COCKRAM: Your Honour, I'm not going to press it Your Honour, my learned friend isn't here to - - -
82 HIS HONOUR: I'm sorry?
83 MS COCKRAM: My learned friend in the last occasion, Ms Woodward isn't here for us to - I'm not going to press it.
84 MS LAMOVIE: Your Honour I'm not in a position to assist, I wasn't provide with that material.
85 HIS HONOUR: Well it's a matter of what the law is.
86 MS COCKRAM: Yes Your Honour.
87 HIS HONOUR: And the law seems quite clear does it not. The sentence imposed for an offence committed whilst on parole must cumulate on the unserved part - unserved parole sentence. That's always been my understanding of it.
88 MS COCKRAM: Yes Your Honour.
89 HIS HONOUR: Why - just when you think about it logically, if a prisoner is undergoing a sentence, that is serving - his parole has been cancelled as here, and is currently serving the sentence previously imposed by Judge Tinney, why would that stop, and this sentence start - - -
90 MS COCKRAM: (Indistinct) have to interfere with it, so I agree.
91 HIS HONOUR: The point that you make with respect does not make sense.
92 MS LAMOVIE: Your Honour is - and I come into this late, so I'm not meaning to muddy the water, but is it the problem that once the parole is cancelled he's served the non-parole period, the rest becomes at the discretion - isn't in terms of certainty it much more clear if your sentence does proceed first in that case, and the rest is at the discretion of the parole board, because it's already a given - - -
93 HIS HONOUR: No.
94 MS LAMOVIE: - - - that he had that minimum parole, that's been revoked, and then it's now a matter of discretion as to when and if he's paroled again? That's simply - I'm just thinking in terms of clarity, that (indistinct) would make it clearer.
95 HIS HONOUR: Well if you can point me to some authority on the point, well then if you can show me where it is in this case of Waegh that you say that that is what happens, it's not what happens in my previous number of sentences that I've passed.
96 MS COCKRAM: No, I don't want to - I don't want to prolong today's proceeding at all for Mr O'Blein Your Honour, perhaps I could get some instructions.
97 HIS HONOUR: By all means if you take instructions and you think that I've fallen into error you should come back quickly.
98 MS COCKRAM: If I may Your Honour.
99 HIS HONOUR: And I will correct it under s.104.
100 MS COCKRAM: Thank you.
101 HIS HONOUR: But the section seems clear: "must leave out the exception, be served cumulatively on any period of imprisonment which he or she may be required to serve in custody in a prison on cancellation of the parole order."
102 MS COCKRAM: That is clear Your Honour, and that is as Your Honour has done.
103 HIS HONOUR: And I've fixed a non-parole period.
104 MS COCKRAM: Yes, we were directed to those cases as the most recent cases on the orders.
105 HIS HONOUR: But what do they say? Apart from telling me about the cases, tell me where in the cases they say that I should take a contrary view to what the Act says, tell me what - I'll hand the case back to you, you take me to the part - don’t come forward, just let my tipstaff bring it to you, just tell me where it is that the principle as you stated is enunciated.
106 MS COCKRAM: No Your Honour I think it's better if I may have - - -
107 HIS HONOUR: I’m quite - look I'm quite prepared to accept that I may have fallen into error, but you'll have to tell me, that's my understanding of it.
108 MS COCKRAM: Thank you Your Honour, I think it's better if I take instructions and then come back if need be, and I would do that promptly. Thank you Your Honour.
109 HIS HONOUR: Very well, thank you. Thank you would you take Mr O'Blein into custody please.
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WEDNESDAY 19 JUNE 2013
110 MS COCKRAM: Good morning Your Honour, I appear for the Crown in that matter.
111 HIS HONOUR: Just wait till we get Mr O'Blein on the video, thank you.
112 MS LAMOVIE: Your Honour I appear on behalf of Mr O'Blein.
113 HIS HONOUR: Good morning Mr O'Blein can you hear me?
114 OFFENDER: Yes.
115 HIS HONOUR: Thank you, yes Ms Cockram.
116 MS COCKRAM: Your Honour there was consultation yesterday at my instructors office.
117 HIS HONOUR: That's good.
118 MS COCKRAM: I have been instructed to - that those are my instructions, confirmed on the order of sentencing. To that end Your Honour I drafted some submissions which - - -
119 HIS HONOUR: I've read those.
120 MS COCKRAM: And in summary Your Honour it seems that s.15 on the order of service of sentences prevails.
121 HIS HONOUR: Which you did not take me to. Which you did not direct me to.
122 MS COCKRAM: Yes Your Honour, and 163B) takes a back seat to s.15. So on section - - -
123 HIS HONOUR: It doesn't take a back seat.
124 MS COCKRAM: In that s.15 order of sentences finds that the non-parole
period of Your Honour's sentence would be served first.
125 HIS HONOUR: Why are we having this discussion, did I make any orders about the order of sentences?
126 MS LAMOVIE: Your Honour - - -
127 HIS HONOUR: Just a moment, let Ms Cockram finish if you would. I did not make any orders about the order of sentences to be served. I passed a sentence being a period of four years for the offence of armed robbery. I fixed a non-parole period of two years.
128 MS COCKRAM: Yes Your Honour.
129 HIS HONOUR: I've had full regard to the fact that s.16(3B) must operate.
130 MS COCKRAM: Yes Your Honour.
131 HIS HONOUR: And the sentence I impose must cumulate upon the sentence already being served.
132 MS COCKRAM: Yes Your Honour.
133 HIS HONOUR: I've had full regard to the operation of the principle of totality.
134 MS COCKRAM: Yes Your Honour.
135 HIS HONOUR: Now I did say in my sentencing remarks, something which perhaps I should not have said, with the great benefit of hindsight, when I said lest there be any doubt et cetera, that the earliest possible release date will now be 29 September 2016. Of course if the parole board in its discretion determines that Mr O'Blein not serve the whole of the time that is presently owed to it, then he may be released on parole earlier than that. But it's not my job to order - make any orders as to which order the sentences will be served in, nor did I make any such order, that is a function of the act.
136 MS COCKRAM: Then it is our misunderstanding Your Honour and I apologise.
137 HIS HONOUR: So why are we having the discussion?
138 MS COCKRAM: I apologise Your Honour, we - - -
139 HIS HONOUR: I couldn't understand why we were having the discussion during the course of the plea.
140 MS LAMOVIE: Your Honour my notes of that were that there is an ambiguity as to whether you were seeking - and obviously you weren't.
141 HIS HONOUR: Yes.
142 MS LAMOVIE: My concern was the way the misunderstanding could be construed that there was an intention to cumulate the minimum term on the non-parole period which had already been served, which would've been - you would've been led into error if that was the case.
143 HIS HONOUR: Yes.
144 MS LAMOVIE: But with that clarification all that is required is that you cumulate the head sentence and impose a minimum term today, and the rest is for the parole board at the expiry of that minimum term.
145 HIS HONOUR: Yes, however - - -
146 MS LAMOVIE: I think we're all really universally agreed.
147 HIS HONOUR: However can I say that I'm grateful for the discussion. I thank you for your time and effort Ms Cockram that you put into the written submissions, there were very helpful and I thank you for them, but I don't change any of the orders that I made yesterday.
148 MS COCKRAM: No, as Your Honour pleases. I apologise that we
misunderstood.
149 HIS HONOUR: Is that clear to you Mr O'Blein?
150 OFFENDER: Yes.
151 HIS HONOUR: Very well, thank you.
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