Director of Public Prosecutions v Page and Halligan
[2013] VCC 2108
•18 December 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-13-01858
CR-13-01722
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DANIELLE LUBRANO PAGE |
| and |
| DALE JAMES WILLIAM HALLIGAN |
JUDGE: | HER HONOUR JUDGE CANNON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 December 2014 | |
DATE OF SENTENCE: | 18 December 2013 | |
CASE MAY BE CITED AS: | DPP v Page and Halligan | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 2108 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – Theft – Criminal damage – Attempted armed robbery – Reckless conduct endangering life – Various summary offences – Long history mental illness, substance abuse and relevant criminal record (Page) – Longstanding substance abuse and anxiety and depression (Halligan)
Legislation Cited: Sentencing Act 1991
Cases Cited: R v Verdins (2007) 16 VR 269
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms C. Boston (Plea) Mr L. Crosbie | Mr C. Hyland, Solicitor for Public Prosecutions |
| For the Accused Page | Ms E. Riddle (Plea) Ms J. Ellis (Sentence) | Melasecca Zayler Kelly |
| For the Accused Halligan | Mr N. Hutton (Plea) Mr T. Magazis (Sentence) | Theo Magazis Lawyers |
HER HONOUR:
1 Danielle Lubrano Page, you have pleaded guilty to two charges of theft, one charge of criminal damage, one charge of attempted armed robbery as well as a summary charge of unlawful assault.
2 Dale James William Halligan, you have pleaded guilty to three charges of theft, one charge of criminal damage, one charge of reckless conduct endangering life, as well as two summary charges of continuing to drive a motor vehicle, after being directed to stop by police, otherwise known as evading police.
3 Mr Halligan, had pleaded guilty to one charge of handling stolen goods also. However, after discussion with the Crown, I gave you leave to change your plea in relation to this matter and no evidence was led, which led to a dismissal of this charge.
4 The maximum penalty for the offences are as follows:
5 Theft, criminal damage and reckless conduct endangering life all have maximum penalties of 10 years' imprisonment.
6 Attempted armed robbery – 20 years' imprisonment.
7 Unlawful assault – 3 months' imprisonment, or 15 penalty units.
8 Evade police – 60 penalty units or six months' imprisonment or both. Further, upon conviction for these offences, any driving licences must be cancelled with a minimum driving disqualification period of at least six months.
9 The offending was opened as follows.
10 I was told that you, Danielle Page, were 22 years old at the time you committed the offences and you are now 23 years old.
11 You, Dale Halligan, were 30 years old at the time you committed the offences and you are now 31 years old.
12 At the time you committed the offences, you had been in a romantic relationship for about six months. You were renting a caravan at a caravan park in Brooklyn.
13 On an unknown date between 1 January 2013 and 29 May 2013, you stole the oven from the caravan you were renting, cutting a metal wire which secured it. This gives rise to Charge 1 – theft. The oven was valued at $100. You both attended Cash Converters in Glenroy on 29 May 2013. You, Mr Halligan, produced your driver’s licence and sold the oven for $30.
14 On Sunday 9 June 2013 at about 5 p.m., a neighbour saw both of you damaging property in the caravan park. A neighbour told the caravan park manager, a Colin Chamings, who spoke to you on the phone Ms Page, and ordered you both to leave the caravan park.
15 At about 5.48 p.m. that day, Mr Chamings arrived at the caravan park and called police to assist in evicting you. At about 6.30 p.m., as you were both packing to leave, you smashed two external windows on the caravan, giving rise to Charge 2 – criminal damage. You then left.
16 Mr Chamings inspected the caravan and saw the two smashed windows, the cut wire and missing oven. The damage to the windows cost $400 to repair. The stolen oven has since been returned to the caravan park.
17 Between 7 and 10 June 2013, you, Mr Halligan, stole Queensland registration plates from a vehicle parked outside an industrial address in Brooklyn. This gives rise to Charge 5 – theft, which concerns only you, Mr Halligan.
18 On Monday 10 June 2013 at about 1.15 a.m., both of you went to Argyle Street, Footscray in your campervan. You, Mr Halligan, unsuccessfully attempted to gain entry to a Mitsubishi Lancer which was parked in the street, by forcing open the door and boot locks. You then resorted to smashing a window, before taking about 20 compact discs valued at about $150. This gives rise to Charge 3, a charge of theft to which you have both pleaded guilty. The CDs have not been recovered.
19 As you were committing this offence, a Sam Crowther left his house and saw you, Mr Halligan, reaching through the front passenger window of the car which was owned by his partner. He yelled out to you, and you ran away. However, you, Ms Page, then got out of the campervan and approached Mr Crowther. You began yelling and screaming at him. Mr Crowther turned to walk away, at which point you, Ms Page, came up behind him and hit him on the shoulder with a stick-like object. This gives rise to the summary offence of unlawful assault, to which you alone have pleaded guilty, Ms Page. Fortunately, Mr Crowther was not injured. He went inside his home and called for police assistance. You, Ms Page, then returned to the campervan, which was then driven away from the scene.
20 Very soon after this, two police officers were advised of this offending. They drove into Argyle Street and saw your campervan which had no registration plates on it. Police activated their emergency lights just before the intersection of Essex Street and Ashley Street. You, Mr Halligan, were driving and failed to pull over. A pursuit commenced. The pursuit continued in a westerly direction along Essex Street, then south on Ashley Street. You, Mr Halligan, were driving the campervan at about 40 kilometres per hour in a 60 kilometres per hour zone. You drove the van through a red light at the intersection of Ashley and Barkley Streets, causing police to end the pursuit for safety reasons. They then lost sight of your campervan. This gives rise to the first summary charge of evading police in your case.
21 At 3.53 a.m., you, Ms Page, booked a taxi using Mr Halligan’s mobile phone. You gave a false name of ‘Georgina’ when booking the taxi, arranging for it to collect you at a location in Footscray. This taxi did not arrive so you ordered another one. At about 4.30 a.m., taxi driver Kawaljit Chhabra pulled up and you walked from the campervan, which was parked about 30 metres from the intersection. You flagged down the taxi. You said to the taxi driver that your name was Georgina and you wanted to go to Brooklyn. You then sat in the front passenger seat of the car.
22 Mr Chhabra began driving you towards Brooklyn and after travelling a short distance he asked that you prepay $15 of the fare. You refused and said that you would pay once you had arrived. Mr Chhabra refused to take you, Ms Page, any further. You then asked to be taken back to where you had been picked up and Mr Chhabra did this.
23 Once the taxi pulled up to this location, you, Ms Page, took a 15 centimetre handle-less blade from your jacket pocket and held it to Mr Chhabra’s throat, saying “Whatever you have, give it to me.” This gives rise to Charge 4, attempted armed robbery. Mr Chhabra was shocked and afraid that you would cut him. He grabbed the blade and pulled it away from his neck, then pulled it free from your hand. You then left the taxi, leaving the blade inside. You yelled out to Mr Halligan to help you. A photograph of this blade was tendered at the plea hearing.
24 Mr Chhabra drove off and called police. He was very shaken by the attack and fortunately, received no physical injuries.
25 About five minutes later, police, who were travelling in a marked police car, saw the campervan travelling south in Nicholson Street, Footscray. You, Mr Halligan, were driving the campervan which had the stolen Queensland plates attached to it. Police activated their lights and sirens, but you failed to pull over, Mr Halligan. A second pursuit was initiated. A second police car joined the pursuit which continued east on Napier Street and onto Footscray Road, with the campervan reaching speeds of 90 kilometres per hour in a 60 kilometres per hour zone. The pursuit continued for about 1.6 kilometres. As the campervan approached the CityLink onramp, it swerved onto the wrong side of the road into oncoming traffic and continued travelling on the wrong side of the road for between 200 and 300 metres. This piece of driving, where you travelled onto the wrong side of the road, gives rise to Charge 7, reckless conduct endangering life. The traffic was light. Police ended this pursuit due to public safety concerns. Your refusal to pull over on this second occasion gives rise to the second summary offence of evading police.
Re: Arrest and Record of Interview
26 At 4.48 a.m., police saw the campervan parked in a street in Docklands. They told you, Ms Page, not to move. You ran back towards the campervan, yelling “Start the car up”. Police chased after you and arrested you, Ms Page. Police arrested you also, Mr Halligan. You were sitting in the driver’s seat of the campervan at this stage. Both of you were taken to the Footscray Police Station and interviewed.
27 You, Mr Halligan, admitted to having been the only driver of the campervan that night and morning. You said that you had seen the police cars following you, but had not stopped because Ms Page had told you not to. You said you swerved onto the wrong side of the road to cause police to end the pursuit due to safety reasons. You did not make admissions regarding the other offences.
28 You, Ms Page, did not make any admissions regarding any of the offences. You said that you had been in the campervan with Mr Halligan that morning. You said that your twin sister, had committed the attempted armed robbery and made you swap clothes with her.
29 A Victim Impact Statement was made by Kawaljit Chhabra in relation to the attempted armed robbery committed by you, Ms Page. He said that he has suffered financially because of time lost on the day of the attack and time that he lost in the police station and at court. He could not work these days. As your matter did not go beyond committal mention, I am unsure as to what time the victim would have lost at court, but I put that to one side. In relation to the other days to which he has referred, he could not work on those days and so has suffered a loss of income for these. He said that he was in trauma after the incident for a few hours. Fortunately for him and for you, he appears to have been a person of some stoicism in what was a nasty attack. In assessing the impact upon him, I also take into account what he said in his police statement which was referred to in the Crown opening.
30 Needless to say, the offences which each of you have committed are dreadful. The most serious offence by you, Ms Page, is the attempted armed robbery and the most serious offence committed by you, Mr Halligan, is the reckless conduct endangering life. However, the wanton way in which you conducted yourselves in relation to other people’s property, both at the caravan park and in respect of the motor car you broke into, bespeaks a contemptuous disregard for others. No doubt, your gratuitous actions have caused upset, inconvenience and expense to the owners of the property in question.
Just punishment, General deterrence and Denunciation
31 In each of your cases, your offending is deserving of just punishment and denunciation in all of the circumstances. Further, in relation to the offences which each of you have committed, I must place significant weight on the principle of general deterrence in a bid to deter others from behaving as you have.
32 I will now deal with your individual situation, Ms Page.
33 You have the following prior convictions:
(1)On 1 October 2010, at the Sunshine Magistrates’ Court, you were dealt with for one charge of theft of a motor vehicle, one charge of recklessly causing injury, five charges of theft from a shop, one charge of dealing with property suspected of being proceeds of crime, one charge of assault with a weapon, two charges of shop theft for goods less than $600, one charge of unlawful assault, one charge of handling or receiving stolen goods, assault police, theft from a motor vehicle, three charges of state false name, one charge of wilfully damaging property and one charge of failing to have a valid ticket. In relation to all matters, save the state false name and failing to have a valid ticket, you were sentenced to an aggregate of 12 months' imprisonment with a non-parole period of six months imprisonment.
(2)On 29 October 2010, you were convicted of theft from a shop and fined $400.
(3)On 22 July 2011, you were convicted and discharged for resist police.
(4)On 22 July 2011 at Geelong Magistrates’ Court, you were convicted and sentenced to an aggregate of five months' imprisonment for robbery and attempted robbery.
(5)On 17 October 2011, you were dealt with for two charges of dealing with property suspected to be proceeds of crime, one charge of shop theft for goods less than $600, two charges of theft, six charges of obtaining property by deception, eight charges of attempting to obtain property by deception, two charges of possess controlled weapon without excuse. In relation to all of these matters, they were adjourned without conviction for a period of 12 months.
34 You also have a number of appearances in the Hobart Court of Petty Sessions dating from 28 July 2005 until 27 August 2009. The matters for which you have been dealt with are in the nature of assaults, theft and there are three charges of aggravated burglary. In relation to all of these matters, you pleaded guilty and you received the benefit of Youth Justice dispositions in relation to a number of offences. In 2009, you were sentenced to a period of imprisonment together with a probation order with conditions that you undergo assessment and treatment for alcohol or drug dependency as directed and to submit to psychological or psychiatric assessment and treatment as directed by your probation officer.
35 As at the time of the plea hearing, you had a pending plea hearing for a burglary and theft which you committed on 8 June 2013, which as I understand it was to be dealt with today. That concerned you breaking into a garage of a house and stealing some alcohol and breaking into the house itself, stealing a computer. I take into account that these matters occurred during the same period of offending for which I now sentence you.
36 I was told that you committed the spate of offences for which I now sentence you whilst being heavily intoxicated by heroin and Xanax.
37 The fact that you were heavily intoxicated by these substances heightens the dangerousness of your conduct. If you have not realised this by now, Ms Page, there is a definite connection between your drug use and committing offences; and I put you on notice that if you continue to abuse drugs in the future, and commit offences whilst affected, your decision to take drugs may well be treated as an aggravating feature of any offending in the future. The unlawful assault which you committed against Mr Crowther was gratuitous and also nasty in circumstances where he was doing no more than challenging your unlawful actions and was in fact walking away when you struck him. Whilst he was not injured, you conducted yourself in an aggressive fashion when it was you and Mr Halligan who were entirely in the wrong.
38 In relation to your answers in the record of interview, I was told that you were heavily intoxicated when you gave what your counsel referred to as a “bizarre account”. It is surprising that you were still heavily intoxicated at that time as ordinarily police are required to check the sobriety of an individual before conducting a record of interview. In any event, the account that you gave and your denials at that time indicate that as at that stage, you had no remorse for your actions. While I suspect that there was a level of calculation in committing the attempted armed robbery, in that you already had the means to travel in a motor vehicle, being the campervan, and you had no money, I am not satisfied of this planning beyond reasonable doubt and therefore I will not sentence you on that basis. However, it is an aggravating feature of this offence that you offended against a most vulnerable soft target, subjecting him to this frightening attack in the early hours of the morning.
39 I take into account your background. You were born in Jacksonville, Florida but you were removed from the care of your mother when you were one, because of allegations of molestation by your mother’s boyfriend. I was told that her boyfriend was charged as a result of these allegations. You were returned to your mother’s care when you were four years old, having lived with a foster family in the meantime. When you were six, you moved with your mother to Tasmania, as she had married an Australian whom she met through the internet.
40 Sadly, you entered the mental health system when you were only ten years old. You started to run away from home when you were 12 and left permanently when you were fourteen. I understand that your relationship with your Australian step father was a damaged one, with him telling you that he did not want you in the household. This led to counselling when you were 10 years old. Subsequently you were diagnosed as suffering a borderline personality disorder. There was no documentation in relation to the diagnosis at that time, however, your counsel referred to the letter of Dr Ramsay, who does refer to a history obtained from your previous general practitioner who confirmed a history of bipolar illness or personality disorder and substance abuse.
41 As a child, you commenced taking medication for your mental illness which was one of the reasons you ran away from home.
42 You attended a private secondary school until you were 15 years old, which is when you became pregnant with your first child. Even though you had left home, your mother continued to pay for your education until this time.
43 You met the father of your first child in police cells. He introduced you to marijuana, speed and benzodiazepines. You became severely addicted and spent most of your teenage years on these substances. As you were a teenager and drug addict, your child, Samuel, was removed from you and lived with foster parents. Samuel suffers from autism. Recently, you consented to Samuel’s foster parents adopting him. A condition of the adoption is that you have access to Samuel and the adoptive parents have been very willing to have you included in Samuel’s life. To this end, they arrange for phone calls with him, and provide you with photographs and updates in respect of his progress. Whilst you had limited or no contact with Samuel and his foster family when you were a teenager, the situation changed when you moved to Melbourne and became pregnant with your second child.
44 Whilst you were living on the streets, you returned to school and completed the equivalent of a Year 12 certificate, which is to your credit. You had been hoping to go to university and study zoology as you love animals. However, I was told that this aspiration came to an end when you were required to serve a term of imprisonment in Hobart.
45 By the time you were 18, you became addicted to ice and things went downhill dramatically from there, which is reflected in your criminal record.
46 Ms Ruddle, who appeared on your behalf at the plea hearing, told me that your offending in the past has occurred whilst you were affected by drugs or offences were committed in order to obtain drugs. The exception to this is a prior matter for breaching a family violence order which involved you having a fight with Mr Marshall, the father of Samuel.
47 I was told that in your teenage years, you had a relationship with a Shane Jeffs. In 2010, I was told he was shot dead by two men and this was witnessed by you. No one has been charged in relation to this matter. Again, I was not provided with any documentation in relation to this incident. However, the Crown has not challenged this aspect and so I accept that this incident did occur and must have been a traumatic event for you.
48 Upon moving to Melbourne from Tasmania, you continued on the same path, committing further offences and spending time in gaol. You were last released in December 2011 and in early 2012, you became pregnant with your second child, Rafael. The father of that child was at Court to support you, although you are no longer in a relationship with him. When you became aware of this pregnancy, you were determined to have a different outcome for Rafael, than for Samuel. You immediately took steps to abstain from drugs and alcohol and you did not take your prescribed medication throughout the pregnancy. You did not take the prescribed medication for your mental health as each of these was potentially harmful to your unborn child. Notwithstanding your abstinence from these medications, you did not commit any offences during this time. You did experience extreme anxiety and it was a difficult struggle to stay away from drugs. However, to your credit you were able to achieve this in the interests of your unborn child.
49 On 4 November 2012, Rafael was born. Initially, you and the father took care of Rafael. However, the Department of Human Services removed him due to the father subjecting you to violence and also due to a deterioration in your mental health which was not being medicated. You decided to stay off the medication as you were concerned that it would negatively impact on your ability to breastfeed Rafael. Before you were remanded for these offences, you had access to Rafael four times a week.
50 After you lost custody of Rafael, your life fell apart and you returned to drug abuse. However, to your credit, for a significant period of 18 months, you remained drug free. When you relapsed to drug abuse, you commenced to take heroin, which was at a time when you were living with Mr Halligan, your co-offender.
51 When 17 years old you had a car accident which causes you to have seizures three or four times a week. These are generally kept under control by Epilim which is one of the medications that you have been taking to deal with your mental health issues.
52 Needless to say, you have a lengthy mental health history, commencing when you were 10 or perhaps 11 years old. I take into account the report of Dr Ramsay dated 7 December 2013 which indicates that you attended his clinic in May 2013, after you were assaulted and developed a chest infection. As I said earlier on, he obtained a history from your previous general practitioner confirming your mental illness and substance abuse. During the time that he saw you, your mental state was “very labile”. He says that you had labiality of mood, poor judgment and concentration, with irritability and extreme anxiety. He said that you also had “a number of seizures consistent with pseudo-seizures due to high anxiety levels”.
53 Dr Ramsay was of the view that you were suffering severe anxiety and depression with intermittent substance abuse during the time of your offending which caused profound disturbance in your mood, judgment, concentration and ability to make sensible decisions. No doubt, your severe dependency on drugs and the fact that you were intoxicated with these at the time of your offending had a significant impact on you and I note that Ms Ruddle, most properly, did not submit that a reduction in your moral culpability or in the weight that I would otherwise give to specific and general deterrence was warranted because of any impairment of mental function.
54 Unfortunately, you have a history of suicide attempts, which is well documented in the material which was tendered at the plea hearing. The first attempt occurred just after you were remanded for these offences when you were told you could not see Rafael at that time. You very nearly succeeded in respect of that attempt in particular and you only regained consciousness after extensive efforts were made to resuscitate you.
55 You made a second attempt on your life on 24 July 2013 and a third attempt on 17 October 2013. You are regarded by the prison authorities as a chronic self-harm risk and maximum effort has now been made to ensure that you do not harm yourself any further. Although examination has confirmed that you have suffered no significant brain injury from your suicide attempts, I was told that you now suffer hearing impairment in one of your ears, which is probably due to nerve damage because of your attempts to strange yourself.
56 I take into account, in a general way, your mental health issues and impulses to commit suicide. I make allowance in your favour for the fact that time in gaol will be harder for you than for someone without these difficulties and I further allow for the hardship that you will suffer, because of lack of contact with Rafael and Samuel, albeit that neither were in your daily care before you were remanded in custody. Further, I take into account that these hardships have endured for the period that you have already been in gaol.
57 As I said previously, significant weight must be placed on general deterrence in a bid to deter others from offending as you have – especially in respect of the attempted armed robbery.
58 I must also place fairly substantial weight on specific deterrence because of your prior convictions, your mental health difficulties and substance abuse. Whilst I have factored in that you were able to remain drug free for a significant period of 18 months, and that you have spent a long six months in gaol already, apart from your strong wish to rehabilitate, in a bid to have Rafael returned to you, there is a substantial risk that you will resort to drug abuse and offending when you are released; this is especially so if things do not go your way in reclaiming your son. I sincerely hope that you do make a go of things and that you are able to take Rafael back into your care. In this respect, I was told that you have no intention of resuming your relationship with Mr Halligan, which is a matter of which he learned only recently. I was told that you are now in a relationship with a gentleman with whom you have corresponded whilst in prison. He attended the plea hearing for a time and I was told that he works as a carpenter.
59 Taking all relevant matters into account, I rate of prospects of rehabilitation as being fair, at best, but I do hope that you go on to lead a happy and law abiding life and be in a position to care for your child or children.
60 I also take into account your early pleas of guilty, which has saved the witnesses, especially the victims, the time and trauma of giving evidence and you have saved the community the time and expense of running contested proceedings. I have taken into account your pleas of guilty when assessing the weight I need give to specific deterrence and your prospects of rehabilitation. I have also taken into account the letter from your mother who speaks most highly of you, but who confirms that your capacity to rehabilitate depends on you maintaining your prescribed medication regime and staying away from illicit substances.
61 In sentencing you, I have also taken into account your youthfulness and the desirability of having you reform, although that factor does not achieve the prominence that it would otherwise, if you were a first offender.
62 Your counsel submitted that I ought have you assessed for a community corrections order and impose a sentence of three months in combination with a community corrections order, which would effectively result in a sentence of nine months' imprisonment, considering the time you had already served.
63 The learned prosecutor submitted that a sentence of between two and three years' imprisonment with a non-parole period of between nine months and two years was appropriate in your case. She referred me to a number of decisions which I shall not recite. Whilst I have had regard to the attempted armed robbery cases provided, I also factor in the differences as between these cases and yours and have had regard to current sentence practice in relation to this offence, more generally, in sentencing you.
64 I have come to the view that I cannot do justice to all relevant sentencing considerations, even allowing for mitigating factors, by accepting to your counsel’s submission. I shall return to your case in due course.
65 I now turn to you, Mr Halligan.
66 You have a lengthier criminal history than that of Ms Page, but in the context of the most serious offence you have committed on this occasion, there is no prior offence of this nature, albeit that in 2010, you committed various driving offences including failing to ensure that a child between seven and 16 years was restrained, and using a vehicle in an unsafe un-roadworthy condition. That being said, you have a significant number of prior convictions for theft and burglary, attempted armed robbery and armed robbery. Your prior convictions date back to August 2000 and endure over the years (although have not occurred every year) until November 2010. Notwithstanding that you have not committed an offence which is overly relevant to the most serious offence for which I now sentence you, your criminal history reflects an enduring disregard for the law, and that gives me concern for your prospects of rehabilitation.
67 Further, I was told by your counsel that you are also to plead guilty to at least a charge of burglary which appears to be the same occasion that your co‑offender has admitted to, that is breaking into a garage to steal alcohol. In your case I also factor in that this particular incident occurred during the spate of offences for which I now sentence you.
68 Your counsel characterised the other offences which you committed as nuisance offences and at the minor end of the scale. As I said previously, whilst such offending may be at the lower end of the scale, you have caused others loss and damage in complete disregard for their property and contempt for them. You committed these offences when affected by drugs; your counsel indicated that you had been affected by a number of illicit substances. Again, the fact that you were so affected heightens the dangerousness of your conduct – in particular, the car pursuits which you initiated. However, you were not so drug-affected that you were unable to deliberately create a situation whereby police might be forced to stop you for fear of endangering others. In your case, I warn you, that in the future if you take drugs and commit offences, there is a risk and a significant risk that a Judge in the future will treat your choice to take, or your decision to take drugs as an aggravating feature of any future offending, as there is a definite connection between you taking drugs and committing offences.
69 For the purposes of sentencing you in relation to the reckless conduct charge, I do so on the basis that the reckless conduct alleged involves you travelling on the wrong side of the road, for a fairly significant distance, and in circumstances where you placed oncoming road users in danger of death. However, I also take into account that it was you who swerved back onto the correct side of the road in order to avoid collision and the fairly short duration of your reckless conduct compared with other cases this court has seen.
70 Your background parallels with that of Ms Page’s in some respects. Your parents separated when you were six years old. You have a younger sister who is married; however, you do not have much to do with her. You are essentially disconnected from your family, although it appears that your brother-in‑law has provided you with work in the past as a painter. When your parents separated, you eventually went to live with your father and his new partner in Echuca; however, you did not fit in too well with this family unit. You told Mr Mackinnon, psychologist, that your father had more time for his new wife’s children than for you and your sister. Consequently, you did not have a good relationship with your stepmother or father, and did not enjoy a happy home life with them. It appears that the only positive memory that you had of your childhood was when you trained at taekwondo for three years from when you were five years old.
71 Unfortunately, when you were thirteen years old, you commenced using cannabis, and from here you developed a serious drug problem. When you were fourteen, you were kicked out of home and lived on the streets from that time until you were thirty-one, living in various parts of Australia. As you were addicted to drugs from an early age, you have little in the nature of a work history, save that you worked with your brother-in‑law as a painter in more recent times.
72 Your counsel submitted that you were at a crossroads in your life where, having reached the age thirty-one years, you had to decide to either stand up and live in a responsible way, or else spend ever-increasing periods in gaol. Your counsel took me through your criminal history, indicating that your offending was fairly petty up until 2005. He pointed to the fact that at one stage, you failed to comply with conditions of parole, which meant that you had to serve an entire sentence, and that in respect of the armed robbery, attempted armed robbery and theft matters, you were rejected for parole when you became eligible, which meant that you were required to serve three years’ gaol, being released in December 2012.
73 Mr Hutton submitted on your behalf that you believed that you were rejected for parole because of the tightening-up which was said to have occurred after the Jill Meagher case. However, he also submitted that in light of your history it may well have been that you were not viewed as not being a good risk. The unfortunate aspect of this was that you were released into the community without any supervision or supports, which parole would have afforded you. You had no housing or assistance in relation to getting back on your feet, which is most regrettable. It was shortly after your release from gaol on that occasion that you formed a relationship with Ms Page, and you embarked on the offending for which I now sentence you shortly after this.
74 Mr Hutton told me that this time around, you had been in contact with the Salvation Army with a view to establishing some supports, including accommodation, upon your release. I was not clear as to where you intended to live following your release, but there seemed to be a deal of confusion about this in circumstances where you had stated to Mr Mackinnon that you wished to move interstate with Ms Page and start a new life together. However, it appears that having been told that Ms Page is not wanting to continue a relationship, that you still wish to move interstate upon your release from gaol. I take these matters into account when sentencing you.
75 I also take into account the report of Mr Mackinnon, who previously assessed you in 2010. He was of the view that you suffered from a mixed anxiety and depressive mood disorder, as well as a substance abuse disorder. He said that you were probably suffering from these disorders at the time of your offending, and that your substance abuse was a means of self-medication to mask the effects of longstanding anxiety and depression. In relation to your substance abuse, you have been dependent on heroin, OxyContin, methadone and other opioid drugs. As an injecting drug user, you are also a carrier of Hepatitis C. I take these conditions into account when sentencing you. Mr Hutton properly conceded that the considerations in R v Verdins[1] did not apply to your case. However, I take into account your mixed anxiety and depressive mood disorder in a general way, and make some allowance for the fact that time in gaol will be harder for you than for someone without these difficulties.
[1](2007) 16 VR 269
76 Notwithstanding your longstanding substance abuse problems, recent testing indicates that you are functioning cognitively within normal ranges. This appears to be due to the fact that you are apparently no longer using drugs, albeit in a controlled environment. Since you have been in gaol, you have undergone various substance-abuse programs. Whilst you have done such programs when you have been in gaol on previous occasions, you have apparently embraced these in a more mature fashion and are now drug-free. Whilst I was not provided with any urine screens to confirm this, on balance, I accept that this is the case.
77 Mr Mackinnon was of the view that you have appeared to mature significantly since he first saw you in March 2010, and that you appeared to be genuinely distressed that you had ended up in gaol once again. He said that your relationship with Ms Page appeared to give you extra motivation to make genuine rehabilitative efforts, and acknowledged that “securing reasonable accommodation and obtaining employment were absolutely vital goals for [you]”. Notwithstanding the very recent news that your relationship with Ms Page is at an end, you still wish to embark on a path of rehabilitation, and return interstate in order to seek stable accommodation and employment. It is important that you have this realisation that those matters are key in your rehabilitation, as well of course as you remaining away from drug use.
78 Your counsel submitted that in light of your history of failing to comply with an intensive correction order, or having been breached for parole or refused this, there was a danger that in the current climate, especially you would be unlikely to be granted parole at the earliest opportunity. Mr Mackinnon echoed the sentiments, saying that you would struggle to comply with a parole order – by this, I understand that the failure to comply with a parole order would be in the nature of failing to observe its conditions, rather than committing further offences. In such circumstances, your counsel submitted that a partially-suspended sentence would be more appropriate, leaving it up to you, as to whether you breached this or not. Your counsel submitted that the alternative may well lead you to be cast into the community once more without any supervision or support from the Parole Board, having been required to serve a full term.
79 Whilst I do understand your counsel’s concerns, I am not sure that it is appropriate to speculate as to what might occur in the future, in so far as the Parole Board is concerned and so I do not do so. Certainly, it is in your interests, and the interests of the community that you are supervised in some way, and supported in the community upon your release from gaol, rather than being left entirely to your own devices. I fully appreciate that there is a danger of you being caught in a cycle of drug abuse and criminal offending, if you are not supported in the community. I accept that you genuinely wish to rehabilitate yourself and have been able to remain drug-free for a period of six months.
80 I understand that you conducted a contested committal hearing where the principal matter in dispute was the attempted armed robbery to which your co‑offender has pleaded guilty. You were discharged in relation to this matter at the committal hearing, and therefore in those circumstances, you are entitled to a significant discount in the sentence you would otherwise receive. In pleading guilty, you have saved the witnesses, especially the victims, the time and trauma of giving evidence at trial and, in some respects, at the committal hearing. In circumstances where the principal offence which you disputed was the attempted armed robbery, I accept that you are entitled to the maximum discount for a plea of guilty, as you had pleaded guilty at the earliest stage. Further, I accept that your pleas of guilty are indicative of some remorse for your actions.
81 Whilst I am hopeful that you do change your ways and you do become a responsible, law abiding citizen, I am afraid that your chronic difficulties with drugs and history of offending, together with the lack of family or friendship support in the community which you can look to upon your release from gaol, leads me to conclude that your prospects of rehabilitation are fairly poor.
82 For similar reasons, I must place significant weight on the principle of specific deterrence and upon the principle of general deterrence in a bid to deter others from behaving as you have. I must place fairly significant weight on the protection of the community in all of the circumstances. In doing so, I am mindful of the fact that the most serious offence for which I sentence you is not something you have done before, but your history of lawlessness, your struggle with drugs, and other personal difficulties, leads me to the view that you are likely to commit further offences.
83 Your counsel submitted that, in the circumstances, I ought to impose a partially suspended sentence where the term to be immediately served was not much greater than the period you had already served.
84 The learned prosecutor submitted that a maximum term of between 18 and 30 months with a non-parole period of between 6 and 18 months was appropriate in your case.
85 Again, I was assisted with reference to some cases which gave me some guidance in relation to current sentencing practice, but again, I have considered this matter more generally and note that one of the cases was in respect of a different charge. I have also factored in the matters which you do not have in common with the other case, which is relevant to this aspect of sentencing.
86 Your counsel submitted that the Crown range was outside that which was appropriate in your case, and also submitted that in all of the circumstances it would be appropriate to cancel your licence and disqualify you from driving for a period which was not much beyond the six months minimum.
87 Having considered the submissions made by your counsel and the learned prosecutor, and taking into account the weight which ought attach to all relevant sentencing considerations, I am of the view that time served already is not adequate, but, as there is no objection to doing so, I intend to impose a partially-suspended sentence upon you and require you to serve a further period in gaol with the balance hanging over your head.
88 You are now thirty-one years old, Mr Halligan, and if you do not take responsibility for your actions when you are released on this occasion, you will find yourself serving the balance of the term hanging over your head. As the mitigating factors in Ms Page’s case are weightier than in yours, I have imposed a slightly higher sentence and periods of cumulation in respect of the offences which each of you committed together. In respect of Charge 3, I have also take into account that you played a more serious role. In relation to evade police, Charge 5, I note that the elements and the conduct differs from the reckless conduct charge.
89 I now turn back to you Ms Page and I will ask you to stand up at this stage please.
90 Firstly, you are convicted of all offences to which you have pleaded guilty.
91 Secondly, I make an order for a forensic sample to be taken from you, being a swab of saliva to be taken from your mouth. I make the order because of the seriousness of the offence of attempted armed robbery which is a forensic sample offence, because you do not oppose the order, because of your prior convictions, and because it is in the public interest for such an order to be made.
92 Further, I make a disposal order for the blade and screwdriver found in your possession and such order is not opposed by you.
93 You are sentenced to the following periods of imprisonment:
94 Charge 1: three months.
95 Charge 2: six months.
96 Charge 3: three months.
97 Charge 4: 20 months, which will be the base sentence.
98 The summary offence of unlawful assault: four months.
99 I make order for cumulation as follows:
100 I direct that one month from the sentence on Charge 2 and seven days from the sentences on Charges 1 and 3 and from the summary charge of unlawful assault be served cumulatively with each other and with the base sentence producing a total effective sentence of 21 months and 21 days and I direct that you serve 12 months before becoming eligible for parole.
101 I declare that you have already served 191 days in custody which will be reckoned as already served.
102 If not for your pleas of guilty, I would have sentenced you to a total effective sentence of two years and six months, with a non-parole period of 20 months.
103 You may take a seat.
104 Would you please stand up Mr Halligan. You are convicted in relation to all of the offences to which you have pleaded guilty.
105 In relation to the two summary charges of evading police, all driver’s licences will be cancelled, and you are disqualified from driving for a period of nine months in respect of each of these charges, such period to run concurrently, so that the total effective disqualification period will be nine months.
106 You are sentenced as follows:
107 Charge 1: four months’ imprisonment.
108 Charge 2: seven months’ imprisonment.
109 Charge 3: four months’ imprisonment
110 Charge 5: one month’s imprisonment.
111 Charge 7: ten months’ imprisonment – that will be the base sentence.
112 Summary Charge 4: three months’ imprisonment.
113 Summary Charge 5: three months’ imprisonment.
114 I direct that 1 month from Charge 2, and one month from Charges 1, 3, 4 and 5, be served cumulatively with each other and with the base sentence producing a total effective sentence of 15 months imprisonment, and I direct that you serve 10 months before becoming eligible for parole.
115 I declare that you have already served 191 days in custody which will be reckoned as already served.
116 If not for your pleas of guilty I would have sentenced you to a total effective sentence of 22 months imprisonment with a non-parole period of 14 months. Please take a seat Mr Halligan.
117 Is there anything arising from that sentence counsel?
118 MR MAGAZIS: No Your Honour.
119 HER HONOUR: Yes thank you. I have heard no submissions about backdating licence cancellation, and therefore the date for cancellation and disqualification is dated from today's date. Could you please remove Ms Page and we will now switch off the transmission. We will now adjourn.
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