Director of Public Prosecutions v Page
[2019] VCC 618
•3 May 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR-18-01727
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JONOTHAN PAGE |
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| JUDGE: | HIS HONOUR JUDGE TINNEY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 12 April 2019 |
| DATE OF SENTENCE: | 3 May 2019 |
| CASE MAY BE CITED AS: | DPP v Page |
| MEDIUM NEUTRAL CITATION: | [2019] VCC 618 |
REASONS FOR SENTENCE
---Subject: Armed robbery x2, theft x2, 26 year old offender, very limited prior history
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms K. Farrell | Office of Public Prosecutions |
| For the Accused | Ms A. Wong | Victoria Legal Aid |
HIS HONOUR:
1Jonothan Page, you have pleaded guilty to four charges on the indictment that has been filed before me, being two charges of armed robbery and two charges of theft. The thefts have 10-year maximum terms of imprisonment, the armed robbery offences each carry a 25 year maximum term of imprisonment.
2You were born on 22 May 1992 and you are 26 years old now and you are soon to be 27. You have admitted a criminal history which your counsel conceded had some relevance to my task. On the day of the plea, which was Friday 12 April, the matter was opened to me by Ms Farrell, who appeared on behalf of the Director of Public Prosecutions of this State. A written opening dated 29 March was tendered on the plea and marked as Exhibit A. Your counsel, Ms Wong, informed me that this was an agreed summary.
3There was also some CCTV footage which was tendered and marked as Exhibit C. Some of that footage was played in open court. I viewed the entirety, as I said I would. The written opening, Exhibit A, was an agreed summary and so it is unnecessary for me in these reasons, to descend to the full factual detail of the offending. I sentence in accordance with the agreed summary and I will not stray beyond those agreed facts in this case. These were soft target offences. It is instructive that you went back to one premises, being the BWS outlet on three occasions.
4The victim of the first armed robbery on 20 May was also the person who observed the theft at that same shop seven days later. The day after that first armed robbery, you were back, back the very next day with others, committing a most brazen theft within metres of the female staff member who was on duty. All she could really do was push the duress button, as you and your off-siders simply loaded up bags. This was undoubtedly serious offending, as your counsel correctly concedes.
5It was not sophisticated, I accept that. But it is no comfort to any of the victims of the armed robbery offences, that the particular offence might be described in court after the event, as being a low-level example of the offence of armed robbery. No doubt it was in each case, an unsophisticated and low-level offence, but it is certainly not at the lowest level. It is plain that there was some level of planning. You did not just happen upon the metal bar, or the scissors or these premises. In fact, as you know, the metal bar was produced from up your sleeve, as the footage makes plain. You had it and you had it for a reason.
6You told Mr Cummins that you had found it laying around at home. Well that might be so, but you had it with you and you produced it in the shop and did so for a reason and that reason was to instil fear and to achieve compliance and it worked. There is a brazen aspect to the offending at the BWS outlet, which is disclosed in the footage. Just walking in and helping yourself and when disturbed, or questioned, just batting on or on the one occasion, escalating what was a brazen theft, into an armed robbery by the production of the bar. As I say, it was no accident that you produced it. The threat was plain. It was then reinforced by your words, 'Let it happen'.
7We have become so used to soft target armed robberies in these courts. We see so many of them. We should not lose sight and must not lose sight, of how serious they actually can be. You chose the Subway outlet. The counter was occupied by a lone, female attendant. You produced the scissors. We see in the footage the frightened way in which the female attendant runs from the shop, out into the back room and her movements in that back area. This was frightening stuff.
8Well, we as judges must not lose sight of the way in which crimes, such as these armed robbery offences, impact upon those who have the misfortune to be caught up in them. All of these victims here were working, probably not in particularly well-paid jobs, when you think about it. They were going about their lawful occupation and were exposed as a result of that, to the likes of you. They were entitled to feel safe in their workplace and you have altered that sense of security in the case of the first armed robbery, without any shadow of a doubt. Armed robbery is by its very nature, a serious criminal offence. The 25-year maximum says as much.
9Charge 2, the theft, was a joint offence and a brazen one at that. What was the female attendant to do? Intervene? She was helpless and you knew it. Of that I have no doubt at all. Now this was not some spiriting away of items in the hope of the theft not being detected. It was brazen theft. You just charged in, in company and went to work. So much then, for my short summary of the summary. That is all it is. I will sentence in accordance with the full factual statement set out in Exhibit A, supplemented of course by what is observable on the footage.
10You were arrested on 1 June of last year and you were interviewed on that day. You were not honest with the police and claimed not to recognise who was shown in the CCTV footage. The less said about your interview, probably the better but I do not hold it against you. To your credit, the matter settled at the earliest opportunity at the committal mention on 24 August of last year. It was listed for plea in November of last year but was adjourned off on your application, to obtain an expert report. You have been continuously in custody from the day of your arrest. It was a period of 315 days as of the plea date. Of course, that has risen since.
11I ordinarily sentence within days and I would have done so here, I can tell you, but the plea was conducted on Friday 12 April and there was then a judicial conference the following week, which then ran into, in my case, an extended break from which I resumed only on Monday of this week, being 29 April. Hence the delay in sentencing you.
Victim Impact
12There is a victim impact statement from one of your victims, being the subject of the first armed robbery charge, Mr Tynan. It was read aloud by the prosecutor and it demonstrates how significant the impact can be. Your victim was a young uni student and was left feeling angry, dismayed, saddened and helpless and these sentiments pervaded his thoughts both at work and at play. He relived the event, and your crime, as unsophisticated as it was, has totally altered his feeling about that employment. He does not feel safe at work. The crime has caused significant impact upon him, which I take into account.
13Though there is no victim impact statement from the Subway victim, obviously enough this was a frightening incident. The footage and her reaction speaks for itself. How could it not be frightening? Your production of the scissors was designed to scare her into compliance and it worked.
Plea in mitigation
14Your counsel, Ms Wong, conducted a most thorough plea on your behalf. She prepared some detailed and excellent written submissions marked as Exhibit 1 and tendered also, a report from Mr Cummins. She took me to your background in quite some detail. She relied mainly upon:
·the fact of your pleading guilty and at an early stage;
·the presence of some remorse;
·the absence of any lengthy or particularly relevant or serious criminal history;
·She took me to the particular circumstances of the offences and the absence of some aggravating features;
·She argued that you had reasonable rehabilitative prospects;
15Your counsel argued for a combination type sentence, namely a term of imprisonment with release in the future onto a community corrections order. She conceded the inevitability of a further period in custody, over and above your current pre-sentence detention, but submitted that there was 12 months available. She took me to a number of other instances of sentences imposed by judges of this court, as providing some - as she put it - comparable examples.
Prosecution
16Ms Farrell, who appeared on behalf of the Director of Public Prosecutions argued against the availability of such a disposition. The Director submitted that the only available disposition was a term of imprisonment and one requiring the fixing of a non-parole period. Ms Farrell took me to those cases discussed by Ms Wong and raised some critical differences in the factual settings. She also took me to three other instances of sentences being imposed by single judges of this court, also as indicative of current sentencing practices. If I may say so, I found that to be of the same level of assistance as being taken to the cases by Ms Wong, virtually none.
17I have been a judge for over nine years. I have more than a fair understanding of sentencing practices for these crimes. This process of taking a judge to other instances of other judges passing other sentences upon other offenders for other crimes, has virtually no value at all. None of the cases, in fact, were truly comparable nor the personal circumstances. So, I had others who had strong Verdins claims, and no or little weight to be given to general deterrence. One, who had even handed himself in to the authorities. One, where it was a different offence with a lesser maximum, being the maximum for an attempt.
18So, Ms Wong took me to cases where a combination disposition had been imposed by the court. Ms Farrell took me to cases where a combination sentence was not employed. I really need no illustration of the ability to deal with serious offences by way of a combination type disposition, or even a straight community corrections order. I have done it often enough myself. But the vice in this approach lies in trying to raise these matters as virtual sentencing precedents. Offender X got sentence Y and therefore so should we. They are not precedents at all. They are other sentences imposed by other Judges. That is all.
19Nor are they even the only sentences available in those other cases, there being no such thing as one correct sentence. Another judge may have passed a more severe or less severe sentence and not been in error. There are also countless examples in the Judicial College of Victoria materials, of sentences for armed robbery which span custodial and non-custodial options.
20My job is to consider the particular circumstances before me. The actual crimes committed by you and to exercise my discretion in your case. To introduce into the equation, as so often happens in this day and age, other crimes committed by others with sentences imposed by other judges and then to conduct a close examination of those other crimes and the other offender's personal circumstances, is virtually worthless. My task in sentencing is difficult enough without introducing this sort of nonsense into it. It is a great shame that it does occur but it frequently enough does.
21Having said all of that though, of course I do take into account everything that has been raised before me and I do take into account current sentencing practise here.
Background
22I turn to your background. Your background was raised in oral submissions made on the plea, also in the written submissions and also in the report of Mr Cummins. There is therefore much before me as to your background and no reason at all for me not to accept it. So I do accept what I have been told about you. By the way, there is nothing in your background that explains this offending. No doubt it is more connected up with your heroin use, but as you know that is not mitigatory. I am not going to waste your time or mine setting out in these reasons, all that I have been told about you.
23Very, very briefly you are 26 years of age. You were born on 22 May 1992, so almost 27 now. You were one of four children. It would seem that family life was unstable and your parents separated when you were quite young. You lived mainly with your mother and there were many moves and hence many schools, so there was that level of disruption. In your early teens you had a falling out with your father in relation to his lack of response to an incident described in the expert report. You left home when you were 16 and had left school halfway through Year 11. You had ADHD which required medication.
24You have worked in a number of jobs but settled upon bricklaying in more recent times, leading into the remand last year. You have contact with your mother and sister but seemingly none with your brothers or your father. Your mother and your partner had travelled down from the country for the plea, when it was heard, which is encouraging. So there is still family support. You have had some intimate relationships and some of those have obviously been problematic, with drugs a sizeable issue. You have a six-year-old daughter who you have not seen for some years and it is plain that drugs have been a major problem for years, whether you recognise it or not.
25Alcohol, then cannabis, then methamphetamine and heroin. There have been some periods of abstinence but you have never had any residential rehabilitation. You did well, it would seem, on a CISP bail program some years ago. The offending coincided with the relapse into heavy drug use. That relapse affected your ability to turn up to work as a bricklayer and you were at the time, in a relationship with a drug user and living with others, who used drugs. So the whole aspect of that part of your life was a recipe for disaster, really.
26You have a criminal history but I accept the submission that your past appearances are for far less serious offending. It is in fact a very brief history indeed, so it does not trouble me at all. It is of no significance to my task.
27You have been in custody now for the longest period you have ever served. In the past, up in Queensland you had served, I think, something like 78 days in prison. Well now you have been held for well over 300 days in this State and you are working in custody and I am told not using drugs. You have stopped using methadone which you are evidently proud of.
Expert Report
28I have read and I take into account the report of Mr Cummins. Truthfully, there is little in the report by way of mitigation. You do not suffer from any mental illnesses or disorders and I suppose that is the main purpose of that report. In the sense that you do not have some of the intractable mental health issues that might otherwise impede rehabilitation. The report sets out your background in some detail, which of course is useful. Your counsel concedes that there is no reduction in your culpability to be found in your background or in that report. Nor any suggestion of any increased custodial burden.
29So, there are no Verdins features relied upon here, at all. There are some concerning aspects in the report as to the limits of remorse here. Also, your relatively casual attitude to the seriousness of the offending, which is a bit hard actually to understand.
Guilty Plea
30I turn then to some of the matters that have been raised in mitigation and the first of those is the fact of your guilty plea. You have pleaded guilty and at the earliest stage and I must reward you for your guilty plea and the stage at which that plea was entered. You have facilitated the course of justice. You have taken responsibility for your crimes and at that earliest stage. It follows then, that the victims in this case have all been spared the experience of actually giving evidence in this case.
31Of course, that is a big positive. Reliving the matter whilst giving evidence can be stressful and has been entirely averted here. The community has been saved the time and the cost and the effort associated with a contested hearing in the court below, or up in this court. So I take those various matters into account in mitigation, as I am required to.
Remorse
32I turn now then to the issue of remorse. A guilty plea is often but not always indicative of some level of remorse. As I have said, your guilty plea was entered at the earliest stage. Mr Cummins' report suggests there are some limits to remorse here. I note that you also, for whatever reason, have misrepresented to him the nature of the weapon used in the second armed robbery. You now retreat from that account of using a pencil, of course. I do not want to get too caught up in those negatives, though. I am prepared to find ultimately, as your counsel suggests I should, that you do have some remorse here and I do take that into account in your favour.
Rehabilitation
33As to your prospects of rehabilitation, well it is never easy to sit up here and somehow try and predict the future. It is notoriously difficult to make any forecast, especially when dealing with someone who has been using drugs in the way that you have for many years. The truth is, you probably cannot know yourself what lies ahead. You were arrested back in June of last year and have been in custody since. That is the longest time you have spent in custody, by far and it operates as something of a circuit breaker here. You have pleaded guilty at the earliest stage and as I say, I am prepared to accept that there is some remorse on display here.
34You have had plenty of time to reflect upon your crimes and you will have more still, following the sentence I will shortly impose. I do not have a sense that you are revelling in any of this offending, by the way. You have held down jobs in the past. I am told you are drug free, though I note there is nothing before me supporting that at all. You are still relatively young and with a criminal history that is neither lengthy nor serious.
35Drugs have been a major problem for many years and no doubt have a very strong role to play in this particular offending. That is not mitigatory. If you continue to use drugs, you will have no prospects of rehabilitation at all. None. You express a willingness for treatment but that is easy enough to express from your current position. The test will come as it always does, upon your release. But really, you must work towards that day, not just wait for it. You need to do what you can do in custody, to maximise your chances upon your ultimate release.
36As I have already said, your criminal history is very short indeed. It does not involve any serious past offending. It does not suggest to me that you are beyond hope, quite the opposite, actually. You still have family support which is of course, a positive. And from the email that was placed before me from Mr Currow, it seems likely you will have a job to go to upon your release. But even if that opportunity is not then in existence, finding work and holding down employment has not been a problem for you. It is for many, but it has not been for you.
37So, I am prepared to conclude as your counsel suggests I should, that you have reasonable prospects of rehabilitation into the future. They will be entirely conditional upon you remaining drug free. If you use drugs, your life will be ruined. I take into account all of the submissions made, as well as all of the materials placed before me.
General remarks
38I turn then to make some general remarks about your offending. I must have regard to the nature and the seriousness of the offences before the court. Your counsel concedes that this was serious offending. After all, two of the offences were completed armed robberies. She concedes the vulnerable status of the two victims, the subject of those armed robberies. They were defenceless and at work. It is not that profitable to express a view as to where this particular offending fits, on the spectrum of offence seriousness. The Court of Appeal says that there is not much benefit in doing so (see DPP v Weybury [2018] VSCA 120).
39However, Ms Wong suggested that the offending, the subject of the armed robbery offences, fell at the lower end of offence seriousness. That it was not sophisticated, with little planning and almost inevitable detection owing to the absence of disguise. On that note, it is plain that for the three offences committed at the BWS outlet, you were endeavouring to hide your appearance with a baseball cap covered by a hoodie. A baseball cap was worn for the Subway offence. Inevitably there was going to be CCTV footage, but it seems to me your actual capture was far from inevitable.
40It is equally plain that you carried and produced weapons. Hence they are armed robberies, but the weapons did not just fall into your hands, you took them to the scene. And as I say, you described as much to Mr Cummins in relation to the metal bar but had some quibble as to the weapon carried in the Subway offence. You now accept the prosecution assertion of scissors being produced. The metal bar was in your sleeve, for the earlier armed robbery and was readily produced when the occasion arose. And that occasion was when it looked like there might be some interference.
41Ms Wong raised the absence of actual physical force, the less severe nature of the weapons employed and less potential for causing harm and the manner of the carriage and the use of the weapons being less extravagant, than might sometimes be the case. Well I am sure all of that is correct, but if I may say so, this approach descends really to a level of detail which in a way, is artificial.
42As though the cashier, the subject of the Subway offence, would discern the difference between scissors being pointed at the cash register, as opposed to her standing, behind the register. Or that the attendant in relation to Charge 1, would do anything other than focus on the bar that was produced and the implied threat backed up by the words used at the time. The fact is, in each case the weapon was produced. The production was designed to imply the threat of force, in the event that there was non-compliance or resistance. The pipe was shown for a reason.
43And unlike an imitation weapon that cannot actually harm physically, a metal pipe and/or scissors, they are not imitations. They can be pressed into action. I accept it is true, they are less dreadful to view and likely to create less fear of imminent harm than, for instance a firearm, or even an imitation firearm. It is clear that you did not hold the scissors to the throat or the body of the victim, or use the bar in any way other than as depicted. Had you done so, no doubt it would have been a worse example of the particular offence. What I have got to do is sentence for what you actually did do.
44As to the absence of actual force, well very many soft-target armed robberies, do not descend to actual force being employed. The absence of aggravating features is not actually a matter in mitigation. It does not alter the actual facts that I have to sentence upon. These were serious offences. They are obviously a very long way removed from the most serious examples of armed robbery, but in my assessment they are removed from the least serious examples. Where for instance, there may be an unplanned meeting of groups out on the street and a spontaneous demand made, with perhaps even the use of a weapon found at the scene and used opportunistically.
45Well of course, that is not what I am dealing with here. These were targeted offences and obviously some with some pre-planning, not much but some. Look at the bags that you produced in the first offence and the attendance with another person and the positioning of the bar. The thefts as I have said, were incredibly brazen. You walked on in to the outlet, in company for Charge 2, or alone Charge 3, opened your bags, no doubt taken for the purposes of the theft and loaded up right under the nose of the employee. This was serious offending.
Current Sentencing Practice and Offence Gravity
46I take into account, as I must, current sentencing practices. It is not a single controlling factor. I have considered the Sentencing Advisory Council snapshot 212 of 2018, relating to the offence of armed robbery. The median sentence of imprisonment where a person was imprisoned for this crime was two years and 10 months' imprisonment. Now a median is just a statistical measure. It does not dictate the sentence required in any given case. All it means is half sent to prison got longer than that and half got less than that. The most common sentence of imprisonment where imprisonment was selected for this offence, was between three years to less than four years.
47I have considered the Judicial College of Victoria Sentencing Manual which has an overview of sentences imposed for this crime. I have selected the portions of that Manual, dealing with what are said to be low-range, armed robbery sentences, see 32.15, 2.2 and 4.
48I have already dealt with the submissions made as to the six sentences imposed by single judges of this court. The defence “relied” upon the cases of Brooks [2017] VCC 1236, Livingston [2019] VCC 1257 and Mark [2016] VCC 523, whilst the prosecution “relied” upon Fantani [2019] VCC 639, Smith [2017] VCC 882 and Pujara [2018] VCC 380. The citations are referred to in my written reasons. I say “relied” and I have said enough already about my views as to that approach. I regard that process as providing no value at all to me and I will not now descend in these reasons to any closer examination of any of those matters. I have read those cases, all of them and my prediction that there would be no utility in my doing so has proved well justified.
49The outcome in other cases does not dictate the actual sentence to be imposed in this case. That is because other sentencing decisions are not precedents. Every case is very different and so too is every offender. Statistical material always has inherent limitations. I am not operating as a statistician up here. I am a judge exercising a discretion. I have to pass an appropriate sentence in your case and it is not a mathematical or statistical exercise.
50This was serious offending, make no mistake about that. The armed robberies are serious criminal offences and it is not mitigatory that you committed them whilst under the influence of drugs and/or to obtain funds for drugs. That is a very common setting, by the way, for soft-target armed robberies. Offences such as these can escalate out of control, sometimes wildly so. How do you know how the shop assistant may react? Or for that matter, how you may react if there is some resistance?
51They are inherently dangerous offences which can escalate badly out of control. These ones did not, thankfully and I must sentence you for what you did, for what happened, not for what might have happened. But they are still very serious criminal acts with a sizable impact and they must be strongly denounced. I must and I do denounce your conduct. Soft-target armed robberies are common enough and the Judicial College of Victoria material spells out how common they are. People working in these positions within retail outlets, they must be protected and the courts must send a very loud and clear message to the many would-be offenders out there.
52The thefts themselves were, as I have said, incredibly brazen. You just did as you pleased safe in the assumption that you would not be stopped and of course, you were not. Sentencing always involves a balancing of a number of purposes, which are set out in the Sentencing Act. One of those purposes, is the rehabilitation of the offender before the court and I do not ignore that purpose at all. I think there are reasonable prospects for your rehabilitation, but they of course will be determined by your ability to remain drug free, upon your ultimate release.
53Remaining drug free has been a real challenge in the past and given the nature of the offending, rehabilitation must give some ground to other purposes. I have to punish you and that much is plain, you know that. I must do that justly and proportionately. I have to give weight to specific deterrence here, owing to the nature of the offending and the chronology of offending. Your counsel recognises in her submissions the strong grip that people under drugs fall into.
54Well, you have been in that grip over the years. It is not unrealistic to think that you may yet have an ongoing issue with drugs into the future. I hope you do not. But drugs and offending go hand in hand, as they did here. I must deter you from ever committing crimes such as these in the future. And I must also recognise the need for community protection in this sentencing task. It must be given at least some weight here.
55General deterrence is obviously a very important sentencing purpose, especially in connection to the armed robberies before me. The courts have to spell out explicitly to others in the community, that conduct such as yours will be dealt with sternly. Like-minded potential offenders and there are certainly enough of them out there, they must understand that serious conduct such as this will be met with significant punishment. I must pay regard to the offence maximum, 25 years for the armed robbery and 10 years for the thefts. I have to pay regard to the impact of your crimes and it has been sizable in relation to the victim, the subject of Charge 1.
Combination
56Prison is a disposition of last resort for any court. If there is any other option open to the court, then it must be selected. That is the law. It always has been. Your counsel suggests that it is open to ultimately release you onto a community corrections order, that a combination-type sentence is open to me and can achieve all the purposes of sentencing.
57Well plainly, if a suitably conditioned community corrections order in combination with a term of imprisonment of up to 12 months beyond your existing pre-sentence detention could achieve all the needs of sentencing in this case, I would proceed in such a way. But I am entirely confident that it cannot be achieved in this case. This offending is too serious. I must adequately recognise the nature and gravity of your crimes and pay adequate regard to the need to denounce, to punish and to deter you and others and to protect the community.
58I must recognise the separate victims and pay regard to the offence maximum and to victim impact. Such a disposition as that mooted by your counsel, would not in my judgement achieve all the purposes of sentencing, including the need to punish, to denounce, to protect and to deter. I am left in no doubt that it is not open to me to structure sentences such that a community corrections order is even as a matter of law, theoretically available. Your crimes are just too serious.
59It is plain to me that the only appropriate disposition is in each case, a term of imprisonment with an appropriate measure of cumulation. I will provide for your possible release and that is all it is, by fixing a non-parole period. I can make no assumptions as to your being released at that earlier stage. I must act on the basis of your serving every day of the head sentence I pronounce. Whether you are released prior to the lapse of the head sentence, will depend on the decision of the Adult Parole Board. They will be incidentally, in a much better position to assess your prospects and your readiness for release, closer to that point in time.
Totality
60I have taken into account the principle of totality of sentence. I have looked at the sentences and the effect of those sentences that I am about to impose, to guard against the imposition of a crushing outcome and to ensure that it is commensurate with the overall gravity of your crimes. Your culpability is high here. There is no question about that. I moderate the level of cumulation but I must still sufficiently recognise the differing victims and differing offences.
61It is no answer to say that this was just a spree of offending within eight or so days. It was, in the sense of there being a very tight time frame. But you chose to commit each offence, on each day. Each had a separate victim and the two victims, the subject of the armed robberies, were exposed to this frightening offending.
62According to Mr Cummins, you seem not to understand just how serious the offending was. You need to get it into your head that they were not armed robberies upon a corporate entity, such as Subway or BWS. They were armed robberies committed upon actual victims, who had the misfortune to come into contact with you and who will never forget that day. Those victims must not be rendered mere statistics. There must be adequate cumulation.
Ancillary – 464ZF
63Now let me deal with the ancillary order that is sought here that is sought here. There is a (464) application. There is no opposition to the making of this order and pursuant to s.464ZF of the Crimes Act, I order that you undergo a forensic procedure for the taking of a scraping from the mouth, in accordance with the relevant provisions of the Crimes Act, until a sample of sufficient standard is obtained for placement on the database. I am satisfied the order is justified owing to the seriousness of the offending, the existence of the limited prior convictions, the fact that the order is not opposed and that I judge it to be in the public interest to make this order.
64I have to inform you that notwithstanding your present consent to the taking of this mouth scraping and that is what I am authorising, that the authorities may use reasonable force to enable the forensic procedure to be conducted. Now this sampling is not a particularly invasive process. I am authorising the scraping from your mouth, a mouth swab. It will be run around the inside of your mouth by the authorities. They can use reasonable force to do that, but it should not be an issue for you.
65If it presented an issue, no doubt the authorities would be back before me, wanting to have me authorise a blood sample, which I have not authorised today. I have authorised the least invasive procedure which is the scraping from your mouth. But I have signed that order and now pronounced it. Mr Page, then could you stand up please? And I will now pass sentence upon you.
Sentence
66On Charge 1, the armed robbery upon Mr Tynan, I convict and sentence you to two and a half years imprisonment;
67On Charge 2, the theft which is the largest of the two thefts, you are convicted and sentenced to nine months' imprisonment;
68On Charge 3, theft, you are convicted and sentenced to five months' imprisonment;
69On Charge 4, the armed robbery at the Subway upon Ms Lemewah, you also are convicted and sentenced to two and a half years imprisonment.
Cumulation
70I will make the sentence on Charge 1 the base sentence. That is therefore a base sentence of two and a half years. I direct then that nine months of the sentence imposed upon Charge 4; two months of the sentence imposed on Charge 2; and one month of the sentence imposed on Charge 3 are to be served cumulatively, that is on top of the base sentence and upon each other.
Total Effective Sentence
71This produces a total effective sentence of 42 months or 3½ years imprisonment.
Non-Parole Period
72I fix a period of 2 years during which you will not be eligible for release on parole.
Section 18 – pre-sentence detention
73You have already served 336 days by way of pre-sentence detention and that declaration is entered into the records of the court. I have taken into account your guilty plea.
6AAA
74Had you pleaded not guilty and been found guilty of these offences by a jury, I would have convicted and sentenced you to six years' imprisonment. I would have fixed a non-parole period in that setting of four years. That statement also is to be entered into the records of the court. Just grab a seat for a moment, please. I will see if there is anything else that I need to deal with. Ms Farrell, Ms Wong are there any other matters I need to deal with at all, or not?
75MS FARRELL: No, Your Honour.
76HIS HONOUR: No.
77MS WONG: (No audible response.)
78HIS HONOUR: All right. And you will go down and see your client downstairs, Ms Wong?
79MS WONG: Yes, of course.
80HIS HONOUR: All right. Well look, well that completes the matter then, so Mr Page can be removed and Ms Wong will come down and see you downstairs, Mr Page.
81(At this stage the accused left the court.)
82MS FARRELL: As the court pleases.
83MS WONG: As Your Honour pleases.
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