Director of Public Prosecutions v Raymer
[2020] VCC 1289
•19 August 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 20-00674
CR 20-00675
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MATTHEW RAYMER RYAN RAYMER |
---
| JUDGE: | HIS HONOUR JUDGE MEREDITH |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 29 July 2020 |
| DATE OF SENTENCE: | 19 August 2020 |
| CASE MAY BE CITED AS: | DPP v Raymer & Anor |
| MEDIUM NEUTRAL CITATION: | [2020] VCC 1289 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr M. Regan | |
| For Accused M. Raymer | Mr M. Brugman | |
| For Accused R. Raymer | Ms A. Hancock |
HIS HONOUR:
1Ryan and Matthew Raymer, you have both pleaded guilty to charges which arise out of an incident on 28 September 2019, Grand Final Day. In addition, Ryan, you have pleaded guilty to charges resulting from a police search the following day, 29 September 2019.
2Ryan Raymer, you have pleaded guilty to Charge 1 of causing injury intentionally which has a maximum penalty of 10 years' imprisonment. You have also pleaded guilty to three charges of possessing drugs of dependence, namely Charges 4, 5 and 6. The prosecution did not contend that you possessed these drugs for a purpose related to trafficking. The relevant maximum penalty is one year's imprisonment.
3In addition, Ryan, you have pleaded guilty to the related summary offence of possessing a prohibited weapon, namely a set of knuckledusters on 29 September 2019. This is related summary Charge 9 and has a maximum penalty of two years' imprisonment.
4Both of you, Ryan and Matthew, have pleaded guilty to one charge of aggravated burglary which is Charge 2. This offence has a maximum penalty of 25 years' imprisonment.
5Matthew Raymer, you have pleaded guilty to one charge of affray, namely Charge 3, which has a maximum penalty of five years' imprisonment.
6In your case, Ryan, the charges which you have pleaded guilty to are put on the basis that you struck Anthony Seares, a 14-year-old youth, with a baseball bat in the driveway area of his family home at 22 Kosciusko Avenue, Corio. You then entered the garage of his residence, carrying the bat in the company of others intending to commit an assault therein. The prosecution concede that they cannot establish that you were responsible for assaulting anyone inside the garage. You are also pleading guilty to the drugs and knuckleduster offence which occurred the following day.
7Matthew Raymer, the charge of affray is put on the basis that you were a party to an agreement with others, that when they entered onto the property at 22 Kosciusko Avenue that unlawful violence would be used. This occurred prior to your entry to the garage. The charge of aggravated burglary is put on the basis that you entered the garage intending not to apply actual physical force to another but to place others in fear and that when you did so you were aware that several others were armed with bats.
8In your case, Matthew, the prosecution has not alleged that you assaulted anyone nor do the prosecution allege that you were screaming or yelling or that at any stage you were carrying a weapon. A detailed summary of the circumstances surrounding your respective offending is set forth in a prosecution summary. For the purposes of these sentencing reasons, an acceptable briefer summary will suffice.
9The occupants of 22 Kosciusko Avenue were Mark and Evette Seares and their children, Mitchell Simpson aged 16 and Anthony Seares aged 14. Mark and Evette Seares had organised a Grand Final party and had arranged for it to be held in a double garage in the northeast back corner of their property which is at the end of a long driveway. Extended family members and various friends were in attendance. The front of 22 Kosciusko Avenue faces west with 31 Kosciusko Avenue directly over the road.
10On the day of your offending, a 'For Sale' sign was staked into the lawn at 31 Kosciusko Avenue, facing 22 Kosciusko Avenue. At around 7.30 pm, Anthony Seares and Mitchell Simpson were mucking around out the front of their residence along with their cousin Jordan Phillips aged 14 and a friend Clayton Delaney aged 15. Two of the youths, Mitchell and Clayton, ran across the road and mimicked a scene out of a Harry Potter movie, namely that of Kings Cross Railway Station Platform Nine and Three Quarters. They ran towards the sign yelling about Platform Nine and Three Quarters and contacted the sign with their hip and shoulder. This caused no damage to the sign.
11A female came out of 31 Kosciusko Avenue and commenced remonstrating. This saw the teenagers withdraw back into the premises at Number 22. Within the hour, a group of about five to seven men came down the driveway of the Seares property to the garage area. Some of this group were armed with bats or poles. Someone smashed the driver's side window of a utility vehicle which was parked in the driveway.
12You, Ryan Raymer, approached Anthony Seares who was intending to go into the garage. You said to him, 'Were you the one touching my sign?' Anthony Seares replied, 'No, it was my brother and his mate.' Ryan, you replied, 'No, it wasn't. It was you.' You then struck Anthony to the left side of his head with a blue-coloured bat. This caused him to fall and hit the right side of his head on concrete outside the garage door. An unidentified person then kicked Anthony hard in the stomach before a third unidentified person threatened, 'Don't get up or I'll stab you.'
13A group of males then stormed into the garage. Some of your number were armed with bats. One of your number was angrily yelling that his sign had been hit and damaged. Mitchell Simpson, a 16-year-old teenager, stepped in front of his aunt in order to shield her. He was struck on the left side of his head by an unidentified male with a baseball bat. Persons were yelling, 'Who jumped on the sign?' One of your number threatened Clayton Delaney, a 15-year-old teenager, with a bat but then hit the side of his neck with his hand. No injuries were sustained as a result of this.
14Your group was approached and ushered out of the garage and down the driveway. Whilst your group was still in the vicinity of the nature strip, a female came across from over the road and one of your number asked, 'Who's the one that touched the sign?' Your group then walked back to the vicinity of Number 31 before about six of you got into an SUV and departed the area.
15Anthony Seares was taken to hospital and CT scans indicated that he suffered an undisclosed right parietal skull fracture and an associated bleed or haematoma of the brain. Neurosurgery had to be undertaken on him and a skull flap lifted, allowing his right cranium to be accessed and the bone cut through for access to the brain surface. This was so the haematoma could then be evacuated. He convalesced for a week in hospital until he was released on 6 October 2019. Anthony Seares is the victim of Charge 1.
16Mitchell Simpson was also taken to hospital. However, after being assessed for a number of hours he was ultimately released. Police attended at 31 Kosciusko Avenue on Saturday 28 September and you, Ryan, denied any knowledge of the incident and identified yourself as one of the occupiers of this address.
17The next day, Sunday 29 September, police executed a search warrant at the address. A search of the house was undertaken and the drugs forming the basis of Charges 4, 5 and 6, along with the knuckledusters forming the related summary offence, were located.
18Specifically, Charge 4 relates to the total weight of cannabis located in 13 clear resealable bags of 52 grams; Charge 5, a drug known as methylphenidate; and Charge 6, the drug dexamphetamine. Pills of this drug were found in a cannister.
19You, Ryan, were arrested and when later interviewed stated that you had been drinking alcohol at a Grand Final party and that you did not recall anything from the time the Grand Final ended until when you woke up at home the following morning.
20You, Matthew, were arrested on 2 October 2019 at another address in Corio. When interviewed by police, you told investigators that you had received a phone call, saying that your brother's house was being smashed up and that you then jumped into a taxi at the address which saw you yell at a man and then go home. You describe yourself as being blind drunk at the time.
21A number of victim impact statements have been received on this hearing. These are from Anthony Seares; Evette Seares, his mother; Mitchell Simpson, his brother; and Mark Seares, his father. In addition, I have received a letter from Anthony's teacher at Northern Bay College. The authors of these documents variously speak of the fear, trauma and anxiety resulting from these offences. In reaching an appropriate sentence of each of you, I will have regard to the relevant and admissible portions of the victim impact material.
22Regarding your respective offending, it was cowardly, largely senseless and alcohol-fuelled. The purpose of the attendance of both of you appears to have been to remonstrate with the parties who had interfered with the sign and the sense of grievance this had engendered. All of the offending occurred relatively speaking as part of the one connected series of events but in reality was over comparatively quickly.
23So far as the crime of aggravated burglary is concerned, the seriousness with which this is regarded is reflected by having a higher maximum penalty of 25 years' imprisonment. In fixing a sentence for this offence, I have taken care to ensure that you are not punished for offences committed after entry into the garage. Apart from supporting an inference as to what it was that you intended to do, the seriousness of what took place after the entry cannot affect the sentence on the aggravated burglary charge.
24The offence of aggravated burglary is complete upon entry. The sentence on that charge does not involve any element of punishment for what happened after the entry. Notwithstanding that entry was gained to a garage as opposed to the residence, this was consequent upon persons attending the Grand Final party being located within the garage. In that sense, the garage was the obvious focus of attention as opposed to the residence.
25So far as you are concerned, Ryan, the law defines injury as including a fairly broad range of outcomes up to those which fall short of endangering life or are of a substantial and protracted nature. Causing a bleed on the brain and associated skull fracture is an upper range example of an injury, with the parties submitting that it is not a serious injury as the available medical evidence did not establish that it endangered life or was protracted.
26Insofar as Charge 1 is concerned, striking a person to the head with a wooden bat is inherently like to cause injury and the use of a bat makes it more likely that the injury caused will be significant. Here, your victim was a defenceless teenager and the injury which he sustained required him to undertake brain surgery and then convalesce in hospital.
27I note that, Ryan, originally you were charged with the offence of recklessly causing serious injury. Your matter however resolved to the charge before me. I cannot and will not sentence you for a more serious offence than that which is before me. Fortunately, aside from scarring which he feels embarrassed about, there is no evidence of any other ongoing physical impairment of your victim.
28Matthew, the charge of affray covers your conduct in the driveway prior to your entry into the garage. This saw you as part of a larger gang of adults, some of whom were armed with bats or poles, behaving in what can only be described as an appalling manner. Whilst as an example of an affray, it took place on private property as opposed to a public area and comparatively speaking was short-lived, it is an affray which involved the actual infliction of violence and not just the threat of it. In saying that, I cannot and will not punish you for causing the injury as you are not charged with this offence. The fact of its occurrence, however, is an indicator of the seriousness of the affray.
29There are obvious relevant distinguishing features regarding each of you, Ryan and Matthew. You each face different charges with different maximum penalties. One of you was armed with a bat and the other was not. One intended the application of physical force on entry into the garage, the other to frighten. One of you wielded a bat against a teenager, the other did not. Both of you however were participating along with other unidentified persons, some of whom you knew to be armed. You were both acting out of a sense of grievance and your offending must have been a frightening experience for those present.
30In arriving at a sentence for each of you which is just in all the circumstances, I must have regard not only to the objective features of your offending but also your personal circumstances and to these I now turn. In each of your cases, you have pleaded guilty at an early stage. I accept that for both of you your pleas of guilty demonstrate a genuine sense of remorse for your offending as well as having facilitated the course of justice. Your pleas of guilty have saved the community the cost and time of contested proceedings.
31In addition, given the indefinite suspension of jury trials due to the COVID-19 pandemic, your pleas of guilty have an added significance. Each of you is entitled to and will receive an appropriate discount of the sentence I impose, consequent upon your pleas of guilty.
32As regards the COVID-19 pandemic, I accept that any term of imprisonment required to be served will be more onerous than otherwise, as a result of prisoner restrictions. Visits are suspended and access to educational programs is limited. I accept that anxiety is raised as a result of concerns about catching the virus or loved ones from whom a prisoner is separated contracting the virus.
33So far as you are concerned, Ryan, much of your background is recited in a psychological report of Mr Warren Simmons. You are 29 years of age and you have admitted a limited prior criminal history. This does not involve prior offending for matters of personal violence. You have not received a term of imprisonment before and each of your previous appearances has resulted in a financial penalty.
34You were raised in the Geelong area and educated to VCE level. On leaving school, you worked as a plasterer and then as an order picker. You then worked in a chicken processing plant until approximately March of 2020 when you were sacked after your offending was reported by local media. You had worked for this employer for some seven and a half years and are currently receiving Centrelink benefits now.
35A number of your referees speak of your exemplary conduct regarding this previous work. You had worked your way up from production work to being a relief team leader, assisting in product control and providing assistance of up to 40 others at the work site.
36You have been in a relationship for approximately 10 years and have two young children to your partner Jasmine. They are: Ivy, aged approximately two and a half years; and your son Remy, aged approximately 18 months. Ivy has an extra digit on each hand and suffers from what Mr Simmons refers to as mild autism. You and your partner are servicing a mortgage on the family home and it is apparent that you are in a committed relationship.
37A number of references have been tendered on your behalf and they speak highly of you as well as commending your work ethic. It is apparent that you have a significant level of support from which you can draw and I note that your parents have authored a reference for these court proceedings. Your referees variously describe you as non-violent and refer to the conduct before me as out of character; they also comment on your commitment to your partner and children.
38Of note, you commenced drinking alcohol at a young age. In the lead-up to your offending, you recount a history of episodic drinking where you would intermittently consume large quantities of alcohol on special occasions every couple of months or so. You recount that you had been drinking heavily on the day of your offending and that you only have a fragmented recollection of events which is to the following effect: that you received a phone call from your partner who was at home with your two children who were very young at that stage. She was in a heightened emotional state, bordering on hysterical, complaining of being under a state of attack and you then returned home.
39At the time of your offending you were disinhibited and your judgment affected by the alcohol you had consumed, with your partner presenting in a heightened emotional state, and in that sense it goes to explain why you acted in the manner in which you did.
40The materials before me reference your lack of violence and I accept that your conduct was out of character. You are, I accept, genuinely remorseful, and your level of intoxication at the time of your offending is relevant to your rehabilitative prospects. You express regret and remorse for your conduct and I note in this regard that a constant theme in the reference material tendered on your behalf is your regret concerning your actions on this occasion.
41Your counsel submitted that the impact of hardship on your partner and children, if you are required to serve of imprisonment was exceptional and justified a merciful sentence. Prosecuting counsel argued to the contrary. In particular the prosecutor argued that the decision to relocate from the Geelong to the more remote area of Dereel resulted in what he described as a self-imposed isolation and contributed to any deficit in available supports.
42If it was established that the decision to relocate was in fact made after the offending, this may have some bearing on my consideration of any hardship, regarding the adult family members. I note that the catalyst for the offending involved interference with a 'for sale' sign on the property and I have no direct evidence on when the decision to relocate was in fact made and what level of understanding existed at that time regarding the availability of support services.
43More to the point however, I am asked to consider this issue with respect to a two and a half year old child who cannot have had any meaningful input into where her parents have decided to live. In Markovic v The Queen [2010] 30 VR 589 and in the more recent case of Borg v The Queen [2020] VSCA 191 the court has considered this sentencing issue.
44In Markovic, the court, constituted by a Bench of five, distinguished the hardship which imprisonment places upon an offender's family from the effect on the offender of hardship caused to family members by imprisonment. So far as you are concerned, I accept that your period of imprisonment will be more burdensome as a result of your anxiety concerning the well-being of your family.
45Your counsel submitted that on the whole of the material before me your imprisonment would go beyond this and would constitute circumstances of exceptional hardship to others aside from yourself. Your counsel argues that your daughter, Ivy, as well as your partner, Jasmine, would suffer exceptional hardship if I were to imprison you and this would inevitably flow onto your young son, Remy.
46A combination of matters are relied upon. The evidence establishes that Ivy is described as having communication difficulties including limited eye contact, only occasional speech and non sensical speech. She is believed to be autistic. In this regard Bianca Iarado, a family friend and an early childhood educator in a written testimonial states:
47'Ivy was a very unsettled baby and from a couple of months old I had noticed there may be something wrong. Ivy did not make eye contact, she did not respond to noise as other babies would and Ivy struggled to meet milestones from an early age. Ivy is now two and a half years old. She has a very limited vocabulary. Ivy does not know how to express her needs and wants and frequently throws tantrums and high pitched screams. She is very sound sensitive, covering her ears when loud noises occur. She hand flaps. She does repetitive motions and movements. She appears to be in her own world most of the time and does not engage and play with others.'
48Dr Emily Reid, paediatrician from the Geelong Children's Clinic, in a letter dated 17 August amongst other things opines that her provisional diagnosis for Ivy was of development delay with consideration for probable autism spectrum disorder or possible underlying genetic condition and polydactyl, that is extra hand digits. Dr Reid also states that early intervention strategies are important for progressing developmental skills and include both regular therapeutic sessions with Allied Health practitioners and daily home implementation of developmental strategies, parenting commitment to providing for Ivy's medical and developmental needs would help her progression of developmental skills.
49Dr Reid references speech therapy and occupational therapy and potentially other therapies required.
50Also relied upon, is that the provision of support and related services is complicated due to the COVID-19 pandemic and the restrictions which flow from this. It is further relied upon that Ivy has been assessed as being eligible for support under the NDIS scheme. That Ivy has been born with an extra digit on each of her hands as depicted in photographs tendered before the court, and this will need to be corrected by surgery in the future, when she is between the ages of three to four as currently she is too young.
51It is argued that as her physical disability affects both of her hands it is anticipated that her recovery will see her absent their use for a period of time and thus she will be further dependent upon her carer. I infer that given Ivy's age that it is preferable that she receives surgical correction of her hands as early as is practicable so that her physical presentation does not hinder her social and other development.
52It is further relied upon that you are now residing in a small rural community in fairly isolated circumstances. The family are approximately an hour's drive away to the extent to which they can assist.
53That Ivy's mother's treating doctor recites that she is a poorly controlled Type‑1 diabetic, has longstanding depression and post-traumatic stress disorder and is medicated for these conditions. It is further argued that the loss of your employment has placed the family under great financial strain as you were the sole bread-winner.
54The burden of the matter then concerns Ivy's situation as a young child, likely suffering from autism spectrum disorder and an extra digit on each of her hands, with your partner Jasmine, herself having documented mental health difficulties, having to cope with the demands of Ivy when Ivy is deprived of her connection with you, her father, you being an active parent and support, it is argued that there are no family members able to adequately take up the burden and challenge.
55Dr Marwood, your partner Jasmine's GP, writes that there is fear that you will endure a gaol term, leaving Jasmine unsupported and vulnerable.
56In order to take the impact of your imprisonment upon others into account in this way I must be satisfied that the circumstances that impact upon others are exceptional and this must be established by cogent evidence. This occurs within the framework whereby, unfortunately, it is to be expected that any term of imprisonment will visit hardship upon a prisoner's dependents. This has been referred to as the tragic but inevitable consequence of almost every conviction and penalty recorded in a criminal court. What needs to be demonstrated is more than that. What is required is cogent evidence of exceptional hardship.
57The authorities make it plain that each case does turn on its own facts and that exceptional circumstances will be found only in rare cases. Initially I was of the view that this high bar had not been established in your case, however on greater reflection I have come to a different view. Here, Ivy is burdened with probable autism and consequent communication and other difficulties allied with her physical disability in circumstances where her mother is isolated and has documented, longstanding mental health problems. In combination this amounts in my view to exceptional circumstances of hardship.
58It is through no fault of Ivy's that she is burdened with these conditions and self-evidently she deserves to have them addressed in as timely and supported manner as possible. Ivy has not had any input into the location of the family unit.
59I am satisfied that there is a relatively significant risk of your imprisonment, compromising Ivy having her conditions adequately addressed. There is a real risk to Ivy's development, inadequate support and treatment in the circumstances of your case and I am satisfied that exceptional circumstances of hardship have been made out as I have just described.
60The existence of exceptional circumstances influences what is an appropriate sentence but this is to be determined in light of the whole of the circumstances of your case, including the seriousness of your offending. In regard to your offending, whilst I accept that you were significantly affected by alcohol and that your offending evolved, nonetheless for the reasons which I have earlier outlined, it is serious.
61So far as your rehabilitative prospects are concerned, in light of your lack of similar prior convictions, your solid work history and the efforts which you have made since your offending to rehabilitate yourself, namely moderating your drinking and attending AA meetings, I accept your rehabilitative prospects are positive.
62Your counsel submitted that I ought to defer my sentencing of you in order for you to further undertake and advance your rehabilitation and allow for a lessening of the restrictions currently in place due to the COVID-19 pandemic. I cannot agree. It is important that there be finality of this matter and given I have found your rehabilitative prospects are positive, a further deferral will have limited impact on my already favourable finding regarding this.
63Regarding COVID-19 of itself or in combination in the circumstances of your case I would not defer sentence for this reason.
64Your counsel submitted that a community correction order was an appropriate, merciful disposition in your case. Prosecuting counsel argued that a term of imprisonment, coupled with a non-parole period was the only appropriate sentencing outcome for you. I agree with prosecuting counsel. To impose a community correction order, whether alone or in combination with a gaol term, notwithstanding the powerful matters that are raised in mitigation of your offending and my finding of exceptional hardship to Ivy, would not adequately address fundamental sentencing considerations such as general deterrence and of course, denunciation of your conduct.
65Exceptional circumstances do not automatically mean that a term of imprisonment will not be imposed and in your case I am of the view that the existence of exceptional circumstances still require that you serve a term of imprisonment, however they serve to moderate significantly the length of both the individual sentences that I impose, the extent of cumulation and thus the head sentence and non-parole period. The sentence I will later announce is substantially less than would otherwise be the case but for my finding of exceptional circumstances.
66Turning to you now, Matthew. You are now 31 years of age and have no directly relevant prior convictions. Like your brother, you grew up in the Geelong area and attended schools in the local area. You undertook a VCAL year 12 however, left early to undertake employment. You worked in event management, setting up for concerts and other events for approximately two years. Since then you have been truck driving on and off and since February of this year have been an occasional driver for a local transport company.
67You are in a committed relationship and have a daughter born this year. You have shared custody of your 12-year-old son with your former partner. Ms Carla Lechner, psychologist, assesses you as presenting with symptoms of major depressive disorder and some features of post-traumatic stress disorder. In light of this I accept there would be some added burden to you if I were to impose a term of imprisonment on you.
68Like your brother, you were intoxicated on the evening in question, you having been at a separate football function. You instructed you involved yourself in the mistaken belief that your brother and family were somehow under threat. I accept that yours is a lesser role than that of your brother's in the offending, as is reflected in the respective charges which you face and the matters I have already outlined.
69Like your brother, whilst your intoxication may go some way to explain your offending, it does not excuse it. You report that you have moderated your drinking and your rehabilitative prospects are, I accept, positive. I make this finding in light of your work history, stable relationship and what I accept is your genuine remorse for your involvement in this offending.
70In that regard, you have expressed your remorse in your interview with police to the psychologist who assessed you and also in reference material tendered on your behalf.
71I know that you have given an extensive history of polysubstance abuse to the psychologist who assessed you. This includes cannabis use, prescription medication abuse as well as other drugs. Whilst you have made some gains in overcoming your history of drug abuse, my positive finding regarding your rehabilitation prospects is however contingent on the fact that you remain drug and alcohol free.
72In your case your counsel submitted that a community correction order would adequately address all sentencing needs in light of your lesser role in the offending. Prosecuting counsel submitted that a community correction order fell within an appropriate sentencing disposition. Independently of this concession I have come to the same conclusion. Community correction orders may be suitable even in cases of relatively serious offences which might previously have attracted a term of imprisonment.
73A judge may find that in view of the objective gravity of the conduct and the personal circumstances of an offender, that a properly conditioned community correction order of lengthy duration is capable of satisfying the punitive aspects of sentencing while affording the best prospects for rehabilitation. In your case I have come to this conclusion and in sentencing you I have had regard to the purposes for which a court may impose a sentence including punishment, deterrence, both specific and general, rehabilitation, denunciation and protection of the community.
74In my view these competing sentencing purposes are best dealt with in your case by the imposition of a community correction order.
75Matthew, on the charges you face I will impose the one community correction order. The terms of the order, should you be agreeable, will be that it is of two years duration. In addition to the standard conditions I will require you to perform 200 hours of unpaid work, be supervised for the first 12 months of the order and submit as and when required for testing, treatment and rehabilitation for drug, alcohol and mental health issues. I will also require that you participate in programs aimed at reducing the risk of your re-offending.
76I will direct that up to 50 hours of your participation in rehabilitative programs may be counted towards your unpaid community work hours.
77Ryan, in your case, I will impose a term of 20 months' imprisonment on Charge 1 and of 18 months' imprisonment on Charge 2. I will impose fines totalling $500 on Charges 4, 5 and 6. That is of $200 and $150 for each of Charges 5 and 6. On the summary offence, I will impose a fine of $150.
78The term of 20 months imposed on Charge 1 is to be the base sentence and I will cumulate on it four months of the sentence I have imposed on Charge 2 which will make a total effective sentence of two years' imprisonment and I will fix a non-parole period of one year in your case.
79In each of your cases, I am required state the sentences that I would have imposed but for your pleas of guilty. On the assumption, Matthew, that you are agreeable to the community corrections order, I will now proceed to do that. I note that this is a highly artificial exercise and that plucking one matter out in isolation is far removed from sentencing in practice.
80In your case, Ryan, I would have imposed a total effective sentence of three and a half years and fixed a non-parole period of two years. In your case, Matthew, I would not have considered a community corrections order and would have imposed a total effective sentence of two years' imprisonment and fixed a non-parole period of 12 months.
81I propose to make the ancillary orders that relate to disposal and forfeiture and I understand that the community corrections order documentation can be sent to the Registrar of the Geelong court and that Matthew can enter into the community corrections order at the Registrar's counter and the order can then be transmitted back to my associate at court. And once that is done, I will enter the formal orders into the system.
82COUNSEL: Yes, Your Honour.
83MR REGAN: Thanks Your Honour. Can I just make one submission?
84HIS HONOUR: Yes.
85MR REGAN: Your Honour has mentioned methylphenidate in the sentencing remarks. The methylphenidate was dropped off.
86HIS HONOUR: That is right. That is right.
87MR REGAN: Yes.
88HIS HONOUR: I withdraw that that.
89MR REGAN: Yes. So yes, Indictment C2013423.1.
90HIS HONOUR: Yes, yes.
91MR REGAN: So the drugs on that are: Charge 4 - cannabis, 52 grams; and Charge 5 - dexamphetamine.
92HIS HONOUR: No. Thanks for reminding me of that. Yes. So I will simply withdraw those comments and of course that proposed sentence in relation to that charge.
93MR REGAN: Thanks Your Honour.
94HIS HONOUR: The other orders and sentencing remarks will remain.
95COUNSEL: As Your Honour pleases.
96HIS HONOUR: All right, nothing further?
97MR BRUGMAN: No, Your Honour.
98MR REGAN: Not from the prosecution, Your Honour.
99HIS HONOUR: No. All right. Well, Ryan can be taken into custody then, thanks. And if there are no further orders required, I will formally enter the orders into the system when I receive the signed community corrections order documentation.
100MR BRUGMAN: Does Your Honour require Matthew to come back before you? I can ‑ ‑ ‑
101HIS HONOUR: No.
102MR BRUGMAN: No. As Your Honour pleases. Thank you, sir.
103HIS HONOUR: I do not. And I would require, Mr Brugman, for you to explain to him the working and operation of the order and the potential consequences should there be any breach of the order and I should formally state that if there is a breach of the order amongst a range of powers that I have, I can resentence on both of the offences which are the subject of the order.
104MR BRUGMAN: I will explain that to him, Your Honour.
105HIS HONOUR: All right. Thanks. If there is nothing further then I will conclude the link unless some problem arises and it needs to be re-established.
106MR BRUGMAN: Thank you, Your Honour. If Your Honour pleases.
107HIS HONOUR: All right. Thank you all for your assistance.
108MR REGAN: May it please the court.
109MS HANCOCK: As Your Honour pleases.
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