Director of Public Prosecutions v Ridgway

[2017] VCC 1788

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-17-01506

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOHN WILLIAM RIDGWAY

---

JUDGE:	HER HONOUR JUDGE PULLEN
WHERE HELD:	Melbourne
DATE OF HEARING:	24 November 2017
DATE OF SENTENCE:	30 November 2017
CASE MAY BE CITED AS:	DPP v Ridgway
MEDIUM NEUTRAL CITATION:	[2017] VCC 1788

REASONS FOR SENTENCE
---

Subject:  
Catchwords:            
Legislation Cited:     
Cases Cited:            
Sentence:                 

---

APPEARANCES:	Counsel	Solicitors
For the Prosecution	Ms D. Karamicov	Office of Public Prosecutions
For the Accused	Mr A. Jackson	Haines & Polites

HER HONOUR:

1 John William Ridgway, you have pleaded guilty to one charge of attempted armed robbery, one charge of theft and one charge of make a threat to inflict serious injury. You have also pleaded guilty, pursuant to s145 Criminal Procedure Act, to Summary Charge 10, unlicensed driving, and consented to me determining that sentence also.  The three charges on Indictment No G13447337 occurred on 24 November 2016, as did the summary offence. 

2       These crimes arise out of events which took place at Ormond on 24 November 2016.  The victim of your offending relevant to Charges 1 and 2 on the indictment is Friedrich Brauer.  The victim of your offending relevant to Charge 3 is Zeth Romanis. 

3       The maximum penalty applicable for the offence of attempted armed robbery is 20 years’ imprisonment, theft, 10 years’ imprisonment, and make threat to inflict a serious injury, 5 years’ imprisonment. 

4       The penalty applicable to the driving whilst disqualified charge is 25 penalty units or 3 months’ imprisonment. 

5 Also relevant to this offending is s28(1)(b) Road Safety Act and the Court’s power to cancel your driver’s licence and/or disqualify you from obtaining a licence for such time as the Court thinks fit.

6       It is not necessary for me to recount in great detail the facts of this matter as they are on transcript, the matter having been opened in some detail by the learned prosecutor.  I proceed to sentence you on the basis of the facts as summarised by the prosecutor and discussed during the course of your plea hearing.  It is sufficient for present purposes to simply say the facts in this case are most serious and disturbing.  You also have a relevant and extensive criminal history, to which I shall shortly refer.

7       I turn then to a summary of your offending.  These offences were committed at the Ormond Jeweller & Watchmaker store, 7 Katandra Road, Ormond.

8       Your parents’ home I gather was situated within 200 metres of the crime scene.

9       The store is owned by Friedrich Brauer, who is 84 years of age and has operated the business for 42 years.

10      Mr Brauer sells a variety of jewellery, including wedding rings, diamond rings and watches, and the store trades on Thursday, Friday and Saturday morning.

11      At approximately 1.05 pm, you drove a black 2004 Mazda sedan to Katandra Road, Ormond.  You had purchased that car on 2 June 2015, but your driver’s licence was cancelled.  On 8 December 2015, you approached a friend, Brian Young, and asked if you could transfer your registration to him as you had lost your licence.  Mr Young agreed.  You, however, maintained possession of the car and solely used the car. 

12      At the time of this offending on 24 November 2016, you were, as I have said, an unlicensed driver (Summary Charge 10).

13      You drove your car past the victim’s shop in Katandra Road, then around the block before parking in a lane that led out to Katandra Road.

14      You got out of your car and loitered around the car park and along Katandra Road for approximately 20 minutes, conducting a reconnaissance of the victim’s store.

15      At approximately 1.30 pm, you returned to your car and put on a black balaclava (which you rolled up so that it could not be seen to be a balaclava), a blue baseball cap and white gloves.  You took a black sports bag with you, as well as a silver coloured imitation handgun.

16      You walked across the car park onto Katandra Road and towards the victim’s shop.  You stood at a public phone box outside the victim’s shop for a few minutes, during which time you rolled down the balaclava to cover your face.  You entered the store, armed with the imitation firearm, and confronted the victim.  When you saw Mr Brauer, you pointed the gun at him and yelled at him to “open the safe” (Charge 1, Attempted armed robbery).

17      Frightened and threatened, Mr Brauer tried to run to the front door of his shop to get away and seek help.  As he tried to get past, you grabbed hold of him and a scuffle occurred.  Mr Brauer tried to grab the firearm off you.  You pushed him.  He felt he was hit on his head with some hard object, and received a small graze on his forehead.

18      You let go of Mr Brauer, who quickly left the store and ran to the café next door.

19      Zeth Romanis was working in that café at the time and saw a shaken Mr Brauer knock on the window of his shop, telling him there was someone robbing his store.

20      Mr Romanis went to Mr Brauer’s store and saw you wearing a balaclava and holding a boning knife in your left hand, going through drawers on the side of the counter.  Mr Romanis went back to his store and grabbed a broom.  As he walked out of the store, he saw you about 4 to 5 metres away from him, walking towards the car park.  Mr Romanis followed you and saw you get into your black Mazda hatchback.

21      Mr Romanis got within a car length of your car, when he saw you pick up a medium size handgun in your right hand and point it at him.  You did this whilst you were seated in the driver’s seat.  You told Mr Romanis in an aggressive voice “I’ll shoot you, mate. Just piss off” (Charge 3).  That was the same imitation firearm that you had pointed at Mr Brauer.

22      Mr Romanis moved out of the way and took down your registration details.  Police were called and attended the scene.

23      You stole jewellery from the store, including a bracelet valued at $500 and a silver earring valued at $60.  The bracelet was handed in to police by a member of the public (Charge 2). 

24      On 16 December 2016, a search warrant was executed at your home in Carrum Downs, at which time police located a blue baseball cap, black sports bag, a boning knife, and a large earring.

25      Your offending was caught on CCTV from cameras in the vicinity of Katandra Road and Mr Brauer’s store.  The items seized from your home looked like those carried by you.

26      You were arrested and interviewed on the same day at the Bayside Police Station.  You denied knowing anything about the attempted armed robbery and denied being in Ormond that day.  You said the black Mazda you drove belonged to your friend, Brian Young, but that you drove it sometimes.  You had an arrangement with Mr Young whereby you kept the car.  You did not recall lending the car to anyone on 24 November 2016.

27      You denied the CCTV footage was you.  You told police you may have driven through Ormond on that date on the way to visit a doctor, specifically Dr Kenny.

28      A check of your medical records indicated you did not visit the doctor on or about that date, nor did it show you having visited a Dr Kenny at all.

29      You indicated your intention to plead guilty at a contested committal hearing on 31 July 2017 prior to any witnesses being cross-examined.  The prosecution accept your plea of guilty was entered at the earliest opportunity.  I accept that is so, although I note you did at the time when being interviewed by police, deny your offending.  However, following being charged and with the involvement of solicitors representing you, discussions occurred with the prosecution and the matter resolved to a plea to the charges before me.

30      You are entitled to have that fact of your plea of guilty taken into account in your favour and I do so.  The community has, by your pleas of guilty, been spared the time and cost of a trial and witnesses, in particular the victims of your offending, have not been required to give evidence upon your trial.  I also take into account in your favour you intimated early your intention to plead guilty to these charges, consistent with the chronology provided to me by the prosecution, albeit denials to police at the interview stage. 

31      In the circumstances, I accept your plea of guilty indicates some remorse for your offending.  I am, however, concerned about the extent of your remorse, in particular given your extensive prior and relevant criminal history.

32      You have, as I said, admitted that prior history which includes court appearances from 8 January 1974 through to 26 September 2016.  You have a significant number of offences for dishonesty, including assault with intent to rob, for which you were dealt with at the Melbourne County Court on 1 August 1979, and robbery in company, for which you received a 3 year term of imprisonment. 

33      On 26 April 1984, you appeared at the Melbourne Supreme Court on a charge of armed robbery and other charges, for which you were sentenced to a total of 13 years, minimum 10 years, but on appeal 21 November 1984, that sentence was varied to 9 years.  Together with other offences, you were sentenced to a total of 10 years, minimum 7 years.

34      On 6 November 1985, you appeared at Melbourne Supreme Court charged with armed robbery, and again were sentenced to a term of imprisonment.

35      On 10 May 1991, you appeared at the Melbourne County Court on charges of armed robbery and theft, received a total effective sentence of 11 years and 6 months, minimum 9 years.  You appealed that 21 August 1991.  The appeal was allowed and the sentence varied to 9 years for the armed robbery plus licence cancellation. 

36      On 25 October 2002, you appeared at Melbourne County Court on a charge of conspiracy to commit armed robbery and dishonesty offences, for which you received a total of 14 years with a non-parole period of 10.  You appealed that decision 2 June 2004 with other charges, re-sentenced to 10 years’ with non-parole 7.

37      On 6 October 2010, you appeared at Moorabbin Magistrates’ Court on charges of burglary, theft and resist police, for which you received a suspended sentence and a Community-Based Order. 

38      On 13 January 2016, you appeared at Melbourne Magistrates’ Court on charges of burglary, attempted theft, and unlicensed driving, amongst other offences, and you were convicted and placed on a Community Correction Order for a period of 12 months.  On 26 September 2016, you appeared at Frankston Magistrates’ Court and a variation was made to that sentence whereby you were placed on a Community Correction Order until 12 January 2017.

39      Your offending before me breaches that Community Correction Order.  I stress I am not re-sentencing you for the breach of that order, but rather, it is an aggravating feature of this offending before me that you committed the offences whilst subject to a Court order.

40      In addition to offences for dishonesty, you have previously been before the court for other violent type offences.  On 17 May 1979, you appeared at Prahran Magistrates’ Court on unlawful assault, and on 4 December 2002, you appeared at Sunshine Magistrates’ Court for intentionally cause injury and unlawful assault.

41      You have also appeared at court for a number of driving offences.  On 14 September 1977, Cheltenham Magistrates’ Court, driving under the influence of intoxicating liquor or drugs and exceeding .05.  On 5 October 1977, Oakleigh Magistrates’ Court for exceeding the prescribed concentration of alcohol, 18 May 1979, exceeding prescribed concentration of alcohol plus two charges of unlicensed driving.  February 2000, Ringwood Magistrates’ Court, three charges of unlicensed driving, also exceeding prescribed concentration of alcohol.  On 13 January 2016, you appeared at Melbourne Magistrates’ Court, on a charge of unlicensed driving.

42      Your offending history is extensive and relevant.

43      There are number of aggravating features of your offending, including your use of a disguise and that you breached that Community Correction Order which I have previously referred to.  There was also a level of planning in that it involved some reconnaissance of the shop prior to you entering it, and you attended the property with accoutrements for the purpose of committing this offence, including gloves, a balaclava and an imitation firearm.  A further aggravating feature of your offending relevant to Charge 3 was your production of a weapon at the time of the threat. 

44      Counsel who appeared on your behalf, Mr Jackson, prepared a written outline of submissions for your plea hearing and addressed them during the course of it.

45      Mr Jackson conceded that given the objective circumstances of your offending and your prior criminal history, there was no issue that a term of imprisonment was the only appropriate sentencing outcome.  The issue, as he correctly identified, was the length of any such sentence and the length of any non-parole period.

46      Mr Jackson referred to matters he relied upon in mitigation, including your plea of guilty, your health issues, your age and the circumstances of your detention to date.

47      Turning to the reasons for your offending, your instructions to Mr Jackson were that you did not have any good reason for it other than you were “off the wagon” again, having consumed inordinate quantities of alcohol combined with your prescription medication.  Mr Jackson correctly conceded that that was not an excuse for your offending.

48      Turning to your criminal history, Mr Jackson also noted this offending breached a Community Correction Order.  He correctly described your criminal record as extensive and relevant, although he submitted the frequency and relative seriousness of your offending had declined over the years.  As I discussed with him, I am not so persuaded.

49      Mr Jackson referred to your plea of guilty being entered following discussion between the prosecution and solicitors representing you as to the appropriate charges.  He stated, and I agree, your pleas of guilty had utilitarian value and showed some acceptance and responsibility by you for your conduct.

50      As at the plea hearing on 24 November, you had spent 343 days by way of pre-sentence detention, up to and including 23 November 2017.

51      Turning to your personal circumstances.  You were born in 1957 and are now 60 years of age.  Mr Jackson relied upon your background and social history as contained within the reports of Dr Walton, to which I shall shortly refer.  Your mother passed away in 2016.  You maintained contact by phone with your son, who lives in Sydney, and your daughter, who lives in Melbourne.

52      Mr Jackson submitted since your incarceration at the Melbourne Remand Centre you had been subject to a regime that has been in place since the riots at the prison, located in what was called the “sick unit”.

53      When you were first incarcerated, you were placed on the “Hep C” program of medication for six months, then given the all clear.

54      You currently receive intravenous injections of insulin three times a day for your diabetes, and you see a liver specialist every three months.  In addition, you are prescribed some 20 tablets per day for your various medical issues.

55      You are not able to perform any form of employment in custody and you do not receive any personal visits.

56      Mr Jackson, in his written submissions, stated that your prospects of rehabilitation were totally dependent upon you.  He is quite right and I am not comforted in that regard, in other words I have concerns about your rehabilitation prospects given your repeat offending over the years.

57      A number of reports were placed before me. 

58      The first dated 27 September 2002, was from Dr Lester Walton, Consultant Psychiatrist, who assessed you in 2002 when you were 45 years of age. 

59      He referred to your background and history.  You were raised in Melbourne and educated to Form 3 level at Brighton Technical School.  Thereafter, you worked as a drainer, waterside worker and ship painter.  You had served in the Merchant Navy for three years prior to your then incarceration.

60      You are the middle of three siblings in your family.  You described your relationship with members of your family, and they and some friends were reasonably faithful prison visitors (at that time).

61      You described your childhood as untroubled, however, commenced alcohol intake at the age of 14.  Just prior to that report in 2002 you were consuming as much as two dozen cans of beer daily.  You described recurring alcohol blackouts.

62      Your most regular illicit drug of abuse had been cannabis at that time.

63      Whilst not an intravenous drug user, you had contracted Hepatitis C, apparently due to tattooing.

64      It was noted in 2002 you had tended to avoid alcohol and drug rehabilitation, although did complete a course at Bentleigh Community Centre to retrieve your driver’s licence.

65      In 2002 you were suffering with elevated blood pressure, and had done so for the previous two years.  In approximately 1999, you had been diagnosed with diabetes.  Dr Walton noted then that you were rather neglectful of your dietary considerations in that regard.

66      Reference was made to you being struck on the head with a cricket bat in 1999, following which you developed an unsteady gait and slurred speech.  A brain scan on 21 November 1999 revealed a left-sided skull fracture and associated blood clot, however, neurosurgical intervention was not required.  You were re-admitted to Monash Medical Centre from 21 to 26 January 2000 and on that occasion a brain scan revealed three new blood clots.

67      You came to psychiatric attention within the prison on 23 July 2002 during a previous term of imprisonment.  Routine investigations revealed no new abnormalities, and on 25 July 2002 you were transferred to St Paul’s Psychiatric Unit under the care of Dr Walton.

68      At that time, it emerged you had ingested some amphetamines, which was not your usual indulgence in prison.  You responded quite well to mood stabilising and tranquilising medications, Epilim and Neulactil, and at the time of the report in September 2002, you had been discharged back to mainstream prison.

69      You were married in 1985 and separated in 1990.  There is a son from that relationship.  At the time of this report in 2002, you were then involved in a de facto relationship with a woman with whom you had a then 11 year old daughter.

70      Turning to mental status evaluation, Dr Walton concluded that whilst you did not reveal obvious cognitive deficit, were you to undergo detailed neuropsychological testing, cognitive impairment would be revealed.

71      Regarding the offending you were at that stage to be sentenced for, you attributed your involvement to association with fellow waterside workers with established criminal histories.

72      Turning to the opinion of Dr Walton in that 2002 report, if you were to attract any psychiatric label at that time, it would be an anti-social personality disorder, which was, he said, “to state very little more than you have a reasonably well-established criminal history”.  Regarding your style of offending, Dr Walton described it as “old-fashioned style”, being in the company of similarly inclined individuals you consciously and deliberately opted to be involved with, out of a misguided sense of camaraderie and loyalty.  Dr Walton noted it was naïve to suggest your head injuries were the sole explanation of that offending, given your well-established history of criminal activity prior to it.  Dr Walton noted, however, that you had stayed at large for a lengthy period and it was “tempting” to suggest your previous incidents of head injury may have had some relevance in eroding your judgment in relation to that offending.

73      In the opinion of Dr Walton, you were not likely to require extended psychiatric treatment.

74      Dr Walton noted in 2002 your “institutionalisation”, having spent so many years in prison throughout your life.  You were well adapted to the prison environment and would likely struggle to assimilate when back in the community.

75      In the opinion of Dr Walton, you were properly described as a “recidivist” offender”, and there was no psychiatric intervention which might be of assistance.  At that time in 2002, you thought you were well overdue to retire from criminal offending.  Unfortunately, you did not retire and that was not the case.

76      I turn to the more recent report of Dr Walton dated 20 September 2010.  He described that approximately six weeks prior to that offending on 11 April 2010, you had been drinking a slab a day of full strength beer.  Six weeks prior to that latest offending on 11 April 2010, you had been identified as suffering from serious liver disease which had prompted you to cease drinking.  As a result, you experienced quite severe withdrawal symptoms.  You remained alcohol free until the day of your offending.  You described your lapse on that occasion as due to having consumed in excess of a slab of beer.  At the time of that report in 2010, you estimated you had spent about 22 years in jail.

77      In 2010 you were 53 years of age.  Your personal history and details provided in the previous report to which I have just referred were similar to those expressed in this report, although I note your father passed away in 2003, and your mother at that time was 87 and not in good health.  You were, at the time of the report in 2010, her carer, receiving Centrelink benefits in that regard. 

78      Subsequent to your arrest at the time of the report in 2010, you had been undergoing drug and alcohol counselling, although apparently on an approximately monthly basis only.  You described that you were “slowing down” and now restricted yourself to drinking around two dozen stubbies of beer on weekends.

79      At the time of the 2010 report, your liver disease was likely attributable to a combination of Hepatitis C and alcohol abuse.  You were then being assessed for interferon treatment.  Prior to the report of 2010, you were continuing with psychiatric treatment in the form of the anti-anxiety agent, Valium, and anti-depressant, Prozac.

80      In the opinion of Dr Walton, you were then in a poor state of health, having a history of two significant head injuries with evidence of enduring cognitive deficit.  Your diabetes was out of control and blood pressure barely controlled.  Your most serious current disease was in relation to your liver, compromised by Hepatitis C infection and extensive alcohol abuse.

81      You are properly described as a chronic alcoholic and you also have an anti-social personality disorder. 

82      According to Dr Walton in 2010, you realised you were well overdue to retire from your criminal career.  However, it remained to be seen whether you were able to achieve that stated aspiration prior to what was likely, in the opinion of Dr Walton, to be a premature death because of your multiple physical health problems.  Dr Walton recommended at that time ongoing psychiatric treatment and alcohol rehabilitation.  He knew of no psychiatric intervention which might curb your criminal tendencies.  Rather, you were “simply becoming so infirm” that eventually you would lack the wherewithal to offend at all.  Unfortunately, that did not stop you on the occasion before me.

83      There was a report from Dr Anton Knieriemen of East Bentleigh Medical Group printed on 15 October 2015, requested by your legal practitioners. 

84      This certified you had been a patient of Dr Knieriemen prior to 2000 and then again at East Bentleigh Medical Group since May 2015.

85      It was noted you had severe alcohol related cirrhosis of the liver, with complications, that had resulted in multiple and frequent admissions to hospital over the last few years.  Severe depression had been diagnosed in 2009.

86      You had experienced multiple episodes of life threatening gastrointestinal bleeding, requiring emergency treatment at The Alfred and Monash Hospital.

87      Despite the severe complications from alcohol related damage, you were unable to remain completely abstinent and continued on a self-destructive course.

88      The severe nature of your illness and multiple admissions to hospital had impacted on your ability to function and your mental state.  Following the death of your mother, you slipped into depression and recurrent bouts of heavy drinking.  You had been counselled at length regarding management of your alcohol and depression on multiple occasions.

89      There were no victim impact statements before me, however, it is clear from the statement to police made by Mr Brauer that at the time of your offending he felt scared and frightened, and I have no doubt he was.

90 The effects upon a victim are a relevant sentencing consideration (see s5 Sentencing Act 1991), however I am conscious I must not allow the effects upon a victim to swamp the sentencing process.

91      Mr Jackson referred to your current health management in prison and your circumstances at the Melbourne Remand Centre.  Your daily routine effectively meant you were out of your cell for only approximately five hours per day.  It would appear, however, that the prison authorities are aware of your many ailments and are doing their best to look after your medical welfare.

92      I also discussed with Mr Jackson not only your age, but your health.  The courts have, over the years, referred to the relevance of older age and ill health in the sentencing process.

93      In R v Whyte[1], President Winneke at paragraph 29, noted a sentencing judge must be astute to pay due attention to the age of an accused and stated “they must also be careful to ensure that confidence in the administration of justice is maintained by imposing sentences which reflect the gravity of the crime which is being punished.”  In that decision, his Honour referred to R v Yates and R v Crowley and Garner[2].

[1] (2004) 7 VR 397

[2] (1991) 55 A Crim R 201

94      His Honour further stated:

“In such cases the court said it would be inappropriate to approach the selection of a proper minimum term from the point of view that, because of the offender’s age, there was a need to grant some measure of life after release.  Such an approach, it was said, would mean that general deterrence and retribution would receive insufficient weight.”

95      I also note the decision of R v Iles[3] in which the court in that decision referred to R v Cumberbatch[4]:

“… an offender’s age does not militate against the imposition of a significant period of imprisonment in the appropriate case”.

[3] [2009] VSCA 197

[4] [2004] 8 VR 9

96      I have also read and taken into account the decision of R v RLP[5], referable to age and ill health of an offender, in particular paragraphs 32-38 therein.

[5] [2009] VSCA 271

97      I also note the decision of TRG v The Queen[6], in which Weinberg JA referred to RLP, and the passage from that judgment of Neave, Redlich JJA and Hollingworth AJA:

[6] [2011] VSCA 337

“We approach the conjunction of the appellant’s advanced years and ill health with these propositions in mind.

1.The age and health of an offender are relevant to the exercise of the sentencing discretion.

2.Old age or ill health are not determinative of the quantum of sentence.

3.Depending upon the circumstances, it may be appropriate to impose a minimum term which will have the effect that the offender may well spend the whole of his remaining life in custody.

4.It is a weighty consideration that the offender is likely to spend the whole or a very substantial portion of the remainder of their life in custody.

5.Other sentencing considerations may be required to surrender some ground to the need to exercise compassion to take account of the real prospect that the offender may not live to be released and that the offender’s ill health will make his or her period of incarceration particularly onerous.

6.Just punishment, proportionality and general and specific deterrence remain primary sentencing considerations in the sentencing disposition notwithstanding the age and ill health of the offender.

7.Old age and ill health do not justify the imposition of an unacceptably inappropriate sentence.” (Paragraph 39)

98      In all the circumstances, I consider your rehabilitation prospects to be at best poor.  Although one can never give up hope of your eventual rehabilitation, there is little before me to suggest any great likelihood of that.  However, in fixing an appropriate sentence, I must seek to maximise your chances of rehabilitation as they may be.  Perhaps advancing years and further likely decrease in your health will reduce your likelihood of re-offending.

99      Mr Jackson conceded the need for general and specific deterrence when sentencing you, and also just punishment and denunciation.

100     The prosecutor, Ms Karamicov, referred to a number of aggravating features of your offending, to which I have previously referred.

101     Ms Karamicov also submitted the importance of general deterrence, specific deterrence and denunciation.  Just punishment and denunciation are also significant sentencing considerations.

102     Ms Karamicov referred to your extensive prior criminal history from 1977, including driving matters and a firearm offence in 1974.

103     I was referred to the decision of R v Gruber & Ors[7], a matter in which you were one of the appellants.  Ms Karamicov referred to what she regarded as similarities between that offending and your current offending.  I, however, see some significant differences, as were outlined by Mr Jackson.  It is very difficult comparing cases factually as facts vary enormously case to case, as do matters in mitigation at the relevant time of sentencing.  Ultimately, I must determine the appropriate sentence taking into account all relevant sentencing considerations in your case, including principles relevant to the specific offences before me as enunciated by the Court of Appeal, the gravity of your offending (which I do regard as very serious), and all matters personal to you and in mitigation of your sentence.

[7] [2004] VSCA 100

104     Ms Karamicov referred to your previous court appearances for armed robbery, although I note the charge before me is attempted armed robbery, the earliest being in 1979 and the most recent in 2002.  She also referred to your prior history for thefts and attempted thefts, and violent offending including intentionally causing injury dealt with in 2002.

105     Ms Karamicov submitted all that offending was relevant when determining the appropriate sentence in this case before me and she urged your rehabilitation prospects were poor and I have also referred to this before.

106     She submitted you had ongoing alcohol problems which you were yet to successfully curb.

107     Ms Karamicov confirmed the prosecution submission that your plea of guilty was entered at the earliest stage.  I accept that was the case, I have already referred to it.

108     Ms Karamicov conceded there should be, consistent with general sentencing principles, recognition in the sentence that you will do your time harder in custody than other prisoners due to your current physical health.  I agree.  You had however, she said, been appropriately managed in prison to date.

109     As stated, I regard your rehabilitation prospects as poor, but in sentencing I seek to maximise those chances as they may be.

110     As well as matters personal to you, to which I have referred, including your prospects of rehabilitation, I must also take into account matters such as deterrence, especially general deterrence, which is of considerable importance in a case such as this.  Yet again, your offending involved a “soft target”, and I note in that regard also the age of Mr Brauer.

111     There is also the need for specific deterrence when sentencing you, given your extensive and relevant criminal history.

112     I must also consider the question of protection of members of the community from you and bear in mind the likelihood of your re-offending.  That continues to concern me.

113     I am called upon by the Sentencing Act to manifest the community’s denunciation of your conduct and generally to impose a just punishment.

114     When sentencing you, I take into account principles of totality and proportionality.

115     On Charge 1, you are convicted and sentenced to 5 years’ imprisonment.

116     On Charge 2, you are convicted and sentenced to 12 months’ imprisonment.

117     On Charge 3, you are convicted and sentenced to 12 months’ imprisonment.

118     On Summary Charge 10, you are convicted and sentenced to 1 month’s imprisonment.

119     I order the following in relation to cumulation and concurrency. 

120     Charge 1 is the base sentence.

121     I direct that 4 months of Charge 2 be served cumulatively upon Charge 1. 

122     I direct that 5 months of Charge 3 be served cumulatively upon Charge 1. 

123     I direct that 14 days of the sentence imposed on Summary Charge 10 be served cumulatively upon Charge 1.

124     I direct for clarity the order for cumulation is upon each other and upon the base sentence.

125     That results in a total effective sentence of 5 years 9 months and 14 days’ imprisonment and I direct that you serve a period of 4 years before you are eligible for parole.

126 Pursuant to s18(4) Sentencing Act 1991, I declare you have spent 349 days (up to and including 29 November 2017) in custody by way of pre-sentence detention and I direct that that be entered into the records of the Court.

127 Pursuant to s6AAA Sentencing Act 1991, had you been found guilty of these offences following a jury verdict, I would have sentenced you to a term of imprisonment of 8 years with a non-parole period of 6 years.

128     The prosecution made application for a Disposal Order.  Counsel on your behalf did not oppose the making of the order and I make the order in the terms sought. 

129 Turning to s28(1) Road Safety Act I cancel any licence you have and disqualify you from obtaining a licence for a period of 4 years from today’s date.  In determining the appropriate length I am mindful of the need to encourage your rehabilitation (R v Lefebure[8]). 

[8] (2000) 31 MVR 131

130     That effectively means you have done about a year so that is the pre-sentence detention, there is about a year extra.

131     Did anyone want help with the maths?  It all adds up?  I am not asking if you agree with it, I am just asking if you followed it.

132     What about the pre-sentence detention?  Is that right, up to today?

133     MR JACKSON:  We both agree with 349 days, Your Honour.

134     HER HONOUR:  Excellent.  Then as I have already said, I direct that that figure of 349 days up to and including yesterday, 29 November 2017, be entered into the records of the court. 

135     MR JACKSON:  The date Your Honour queried, I can confirm that the report was printed on 15 October 2015.

136     HER HONOUR:  Thank you very much.  Thank you, Mr Ridgway.

- - - - - -