Director of Public Prosecutions v Rigby

[2013] VCC 765

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT HORSHAM

CRIMINAL DIVISION

Case No.  CR-12-02256
CR-12-02255

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANTHONY RIGBY
DANIEL TROY BRASHER

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JUDGE:	HIS HONOUR JUDGE MURPHY
WHERE HELD:	Melbourne
DATE OF HEARING:	5 June 2013
DATE OF SENTENCE:	7 June 2013
CASE MAY BE CITED AS:	DPP v. Rigby & Anor
MEDIUM NEUTRAL CITATION:	[2013] VCC 765

REASONS FOR SENTENCE
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Subject:  Criminal law

Catchwords:            Sentencing - Aggravated Burglary - In Company - intentionally causing                 serious injury - Attempted Armed Robbery

Legislation Cited:    
Cases Cited:            
Sentence:                Rigby: TES 5 Years NPP 3 years, Brasher: TES 3 Year, 10 M, NPP 2   years.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr K. Doyle	OPP
For Accused Brasher	Mr P Stefanovic (Plea) Ms E. Ramsay (Sentence)	Doogue O'Brien
For Accused Rigby	Ms J. Clark

HIS HONOUR:

1       Daniel Troy Brasher and Anthony Rigby, each of you have been found guilty by a jury, after a short five day trial at Horsham, of one count of aggravated burglary, with the aggravating circumstance being that a person was present, or you were reckless as to whether that person was present, and that you had with you at the time of the offences offensive weapons, namely metal and wooden poles.  The offence occurred at Stawell on 1 May 2012.  The second offence of which you, Mr Rigby, were found guilty was of intentionally causing serious injury to Robert George Johnson, at his unit, Unit 1/117 Napier Street, Stawell.  You, Mr Brasher, were found guilty of recklessly causing serious injury to Mr Johnson.  The maximum penalty of aggravated burglary, 25 years' imprisonment; intentionally cause serious injury, 20 years' imprisonment; recklessly cause serious injury, 15 years' imprisonment.  Each of you were also found guilty of attempted armed robbery of Mr Johnson on the same day, with the offensive weapons being metal and wooden poles, maximum penalty 20 years' imprisonment.

2       The circumstances of the offending emerged in the course of the trial.  The events of that night were as set out in the Crown opening, which the Crown essentially proved.  I incorporate that by reference.

3       Essentially the events that night commenced early the night before, when you were in the presence of a woman who was an acquaintance of the complainant, Mr Johnson, Ms Finlay.  The two of you had been going back and forth to the Racecourse TAB, watching poker games.  You, Mr Rigby, were ingesting excessive amounts of alcohol and you were observed to be under the influence by the next door neighbour at some stage around midnight that night. 

4       At around two in the morning, the two of you proceeded, with Ms Finlay, to the unit occupied by Mr Johnson.  The explanation given by Ms Finlay was that she was to request or borrow some money or some cigarettes from him at that stage.  She went into the unit, had a conversation with him to that effect and he declined to lend her any money or give her any cigarettes.  She also, on her evidence, asked that he invite some unnamed people into the unit.  He declined.  There were phone calls between you, Mr Rigby, and Ms Finlay at the time, while she was in the unit with Mr Johnson.  She then proceeded to leave the unit and at that point you, Mr Rigby, entered the unit and proceeded to engage in an assault on Mr Johnson.  You, Mr Brasher, were obviously nearby.  You were observed by two women across the road, going in and out of sight into the unit.  According to Mr Johnson, he was attacked by two people with what he thought were curved weapons.

5       At one stage in the course of his evidence he indicated that you, Mr Brasher, who he described as effectively the second man, and I find was the second man, in the course of the assault attempted to pull Mr Rigby, or pull
Mr Johnson and Mr Rigby apart.  You then left the unit at that point, Mr Brasher, and Mr Rigby continued with his assault on Mr Johnson, including putting some sort of metal bar or pole across his throat, demanding money from him, which he declined to provide.  Then you, Mr Brasher, returned to the unit and the two of you then proceeded to assault him.  He said he was struck twice by a blunt instrument. 

6       The two of you then decamped.  One of you was seen carrying a pole as you ran out of the unit and up the street.  The witnesses were unsure as to which one was carrying some sort of pole or stick like implement.  You then went back to your house, where the two of you were living.  You re-met Ms Finlay outside the unit, ran up the street back to your unit, whereupon you, Mr Rigby, proceeded to, in a fire at the back of the unit, destroy clothing, including clothing of you, Mr Brasher.  She also gave evidence that she saw you burning a stick.

7       The police in fact had been at that unit earlier that night and subsequently they arrested each of you.

8       You, Mr Rigby, gave a "no comment" record of interview.  As I recall, you,
Mr Brasher, denied any involvement, and the matter went to trial.

Assessing the seriousness of the offences

9       Each of your counsel did not contest the seriousness of the offending here.  As the learned prosecutor submitted, the complainant was a vulnerable middle aged man in his own unit in the early hours of the morning.  You exploited his friendship with Ms Finlay to gain access to his unit and proceeded to assault and attempt to rob him, in company, using makeshift weapons. 

10      The injuries to Mr Johnson was serious, but it seems to have resolved.  The immediate aftermath of the event must have been frightening for him and there was significant blood loss and he had to have some 16 stitches in two head gashes, and he was in hospital for about a day.  When he was attempting to call 000 on his phone, he stated that he was almost vomiting. 

11      As the prosecutor noted, as an aggravating feature, he was a vulnerable victim.  This was in the early hours of the morning and it was an assault by two of you.  He had, on his own evidence, an acquired brain injury and spatial dyslexia.  He was not in a position to defend himself.

12      Mr Johnson has filed a victim impact statement in which he states, "During the course of the crime I felt fear that I may die as a result of the violence, strangulation and assault with weapon and at one stage thought I might have lost all my teeth.  In retrospect, I may have been blinded or killed, attacked with iron bar.  I am more cautious now than before the attack.  Now, but not previously, I make sure I know who is at the door and keep the door locked unless it needs to be open."  He stated the physical impact involved a laceration and bruising, particularly of the head, required stitches and hospital care and he says he is more safety conscious now. 

13      Having looked at his demeanour in the witness box in the course of the trial, it is clear that it obviously had a significant impact on him and that is not surprising.  That must be factored in, in the sentencing process.

Relative role and culpability

14      The complainant's account was that he was attacked by two males.  Ms Finlay's evidence was that you, Mr Rigby, rushed in as she left the unit and she saw you wielding some object against Mr Johnson.  His account was that the second male sought to drag the first male off and then that male left, but returned at the end and he was struck by both males.

15      I proceed on the basis that most of the actual physical conduct was by you, Mr Rigby, in terms of the initial wielding of some object, but that you, Mr Brasher, joined in at some stage and then after you, Mr Rigby, had sought to rob Mr Johnson by putting some object on his throat or neck, both of you then hit him with some sort of weapon and then left.  At least one of those weapons was a stick like item which was then burned by you, Mr Rigby, when you returned to your house.  The fact that you, Mr Rigby, proceeded to burn your outer clothing and that of Mr Brasher is a potent indication of the extent of your involvement.  A key part of the Crown case against you, Mr Brasher, was a blood match of Mr Johnson on a jacket that you were wearing the next day.

16      Turning to the issues of premeditation and planning, I accept that Ms Finlay said that she did not see weapons as the two of you left for Mr Johnson's unit.  However, to attend in company at that time of night to borrow money or cigarettes, particularly when you in particular, Mr Rigby, had been drinking, left great potential for criminality to develop, which it did.  The three closely spaced calls between you, Mr Rigby, and Ms Finlay, at 2.24, 2.27 and
2.30 am and followed by another call at 2.45 am, provide material from which I infer that at around the earlier times at the very least you were contemplating an entry into Mr Johnson's unit to relieve him of his wallet, as the jury must have taken to have found in order to find both of you guilty of aggravated burglary.

17      With the event ending at about 2.45 am, each of you had adequate opportunity to acquire makeshift weapons in the vicinity of the unit.  Thus, while I accept that there was no elaborate pre-planning here, I find that the intent on the part of each of you to enter those premises was formed earlier than when you were both immediately outside the unit, but I cannot be more precise than that.  I accept the submission of the prosecutor that it is very difficult to determine what kind of weapons were involved, but at the very least one of them was a stick or pole, as observed by the two witnesses across the road.

18      Overall this was serious offending on the part of each of you.  The offence of aggravated burglary is serious, as evidenced by the maximum penalty of
25 years.  The aggravating feature was of a person being present, also entry in company and the carrying of weapons in the dead of night all add to its seriousness.

19      The injuries sustained to Mr Johnson places the consequences of the injury count on the lower end of the scale of seriousness, however the culpability of each of you for the assault offence is high.  For you, Mr Rigby, to use some sort of object on Mr Johnson, plus for him to be struck two blows to the head with a blunt instrument give rise to a high level of culpability for the assault offence by you, Mr Rigby. 

20      You, Mr Brasher, have been convicted on the basis of a lesser form of culpability of recklessly rather than intentionally causing serious injury, but your culpability remains high, whether in terms of acting in concert or aiding and abetting Mr Rigby to inflict injury on Mr Johnson.  At least at the end of the incident each of you were involved in attacking Mr Johnson with a blunt object, on his evidence, which I accept and I find that the jury accepted.

21      I turn now to your individual circumstances.  Each of your counsel has filed a comprehensive written plea submission, which I incorporate by reference and which I will place on the court file.  In addition, the personal background of each of you was canvassed in detail in the respective reports of Pamela Matthews and Jeffrey Cummins, which I also incorporate by reference and will not repeat in detail.

Mr Brasher

22      I turn first to you, Mr Brasher.  Your prior convictions that you admitted were first at the Swan Hill Magistrates' Court, on 3 February 2010.  You were born on 24 February 1988, so that puts you at about 22 when that event occurred.  It was for possession of a weapon without exemption and you were placed, without conviction, on a four months' bond and you did not breach that.  That was explained as a failure to have a knife collector's licence at the time, so I regard that as of no relevance at all.

23      Your next prior conviction was on 20 April 2011, at the Horsham Magistrates' Court, for making a threat to kill, two counts, and using a carriage service to menace, and you were fined an aggregate fine of two and a half thousand dollars.  On 10 June 2011, that was varied to provide for you to perform 105 hours unpaid community work.

24      Your next appearance was on 21 January 2012, where for a count of contravening a family violence order, you were sentenced to two months' imprisonment, suspended for a period of 12 months.

25      You were before the Stawell Magistrates' Court, on 17 April 2012, which was a couple of weeks before this event, for failing to comply with a community-based order.  At that point, in default of payment of the sum of $337.79, you were ordered to be imprisoned for three days and the failure to comply with the CBO was found proven.

26      You were before a court two weeks before this event occurred, but most significantly four months before it occurred, 24 January 2012, you were placed on a two month suspended sentence and so committing these offences was a breach of that suspended sentence, Mr Brasher, and that is a matter of aggravation as pointed out by the learned prosecutor.

27      The most significant matters that come from your prior convictions, Mr Brasher, are the fact that your first appearance was not until you were aged nearly 22 and that matter was effectively a regulatory offence.  Next your later appearances can be traced to post relationship access and custody issues with the mother of your child, who was born in 2009. 

28      While you have breached a suspended sentence by this offending, which itself is an aggravating feature, you have no prior convictions for violence nor for dishonesty and you have never been sentenced to a term of imprisonment to be actually served.  These matters in and of themselves bode well for your prospects of rehabilitation, notwithstanding that your plea of not guilty prevents granting you the leniency that comes with remorse and the taking of responsibility for your conduct and facilitating the course of justice.  The only flicker that you recognised the wrongfulness of your conduct at the time was the observation of Ms Finlay, that after the event when Mr Rigby was burning the incriminating clothing you appeared to be in a state of shock.

29      I turn now to your personal background.  Your mother gave evidence on your behalf.  Your mother, Lisa Wardell, indicated that she herself has had health problems and your father left the marriage very early in the piece.  You then had a stepfather and between the ages of eight and 11 that stepfather physically abused you.  She was not aware of that and it was only after he ceased the relationship that she became aware of that and he subsequently suicided and she had a discussion with you about how you were angry because you had never been able to confront him at the time.  She then re-partnered with Mr Wardell and they are now married and he and you get on well together.

30      Tendered on your behalf before the Court was a sheath of various certificates and commendations as to your involvement in the community and various occupational courses that you have done.  She gave evidence that you have generally been in employment.  You were able to achieve Year 10 at the Stawell High School, then you hopefully did a TAFE course to get yourself qualified to join the Army, but unfortunately that did not pan out.  You then joined the CFA and generally have been in employment in the Great Western area, the Wimmera area, where you lived at the time.

31      You became involved with a woman, Tania, between '08 and 2010 and she bore a child, named Ruby, in 2009 and difficulties with access to that child gave rise to the intervention orders and to the threats to kill that are part of your prior convictions.  She then bore a second child, Ryan, who unfortunately passed away quite young.  Ms Matthews indicates that issues of grief  associated with the passing of that child remain unresolved in your life.

32      You moved out of home in May 2011 and then moved to William Street, Stawell.  On the account given to Ms Matthews, it was then that you met Mr Rigby, and I will come to Mr Rigby.  Clearly Mr Rigby was a bad influence on you and he has had problems with drugs and you got into drugs at that point, at this William Street address, and that then led to these events that night.  You have been involved in disputes with your ex-partner, Tania, in relation to the access to Ruby and that gave rise, as I said, to the breach of the intervention order and the earlier sentences.

33      Your mother indicated that you have been diagnosed with ADHD from the age of four and you were medicated until you were age 15.  Again, Ms Matthews indicates that that is an issue that needs to be still addressed.

34      In your case, a report was tendered by Ms Pamela Matthews, forensic psychologist.  She repeats the same essential background that your mother gave in evidence and indicates that you suffer from a condition known as complicated grief, which needs to be addressed and no doubt will need to be addressed in the future.  On p.6 of the report she says:

"Overall, it is the writer's view that developmental mental state and substance dependence have contributed to Mr Basher's offence behaviour with mental state playing a significant part."

35      Your counsel then sought to use that on the basis of a reduction in your moral culpability.  I do not accept that submission.  Although your partially dysfunctional background is relevant to the sentence that I might impose on you, but I do not accept any reduction in your moral culpability on the basis of Ms Matthews' report.

36      From the evidence of your mother and Ms Matthews, you have had a difficult upbringing for a period, but have good intelligence and a good work ethic.  Unfortunately, as I said, it seems that coming into contact with Mr Rigby led to a lapse into drug use.  Ms Matthews found that you had elements of ADHD and also had a methylamphetamine dependence at the time of the offending.  She indicated you had uncomplicated grief and unresolved issues associated with the death of your second child.  As I have indicated, I am unable to accept any reduction in your moral culpability.  Those conditions may assist to explain your behaviour but cannot, in my view, excuse it.

37      On the basis of Ms Matthews' report, I am prepared to accept that a sentence of imprisonment will weigh more heavily on you as a result of separation from your forthcoming baby of your now girlfriend.  Subsequent to this offending, you moved to Geelong and you became involved in a relationship with a woman, Sarah.  She is currently pregnant to you and in addition to being involved in this relationship with her, you engaged with an organisation called Diversitat Youth Service and in evidence was a reference from that organisation, dated 4 June 2013.  That indicates that you have made serious efforts to attempt to obtain employment down in Geelong and in fact you had an apprenticeship lined up which you had to cease because of the trial that commenced.  In addition you in fact had engaged in counselling and were making progress in counselling at Geelong.

38      Your conduct since the offending, your lack of entrenched drug use, your lack of prior convictions, your good work record and your relative youth all point to you having very good prospects of rehabilitation.  Your youth was emphasised on a comprehensive plea by Mr Stefanovic.  In fixing the period for which you will be eligible for parole, I have taken into account and attempt to advance your rehabilitation back into the community after these terrible offences.

Mr Rigby

39      I turn now to your personal circumstances, Mr Rigby.  First, your prior convictions.  You are aged 36.  You hail originally from New South Wales and it is not surprising that your original court appearances are in New South Wales, at Gosford, commencing in 1996, which would have been when you were 19 years old.  You have a number of driving offences, licensing offences in the period from 1996 through to 2000.  You do have a conviction for two counts of assault, on 12 August 1996, at the Gosford Local Court.  You also have convictions for possession of a prohibited drug and possession of equipment for administering drugs and breach of bail, at Blacktown, on

6 August '98, possession of a prohibited drug, conceal serious indictable offence and seven counts of that, on 18 September 1998, at Blacktown again, and on those latter offences you were placed on a community service order.  You have other driving offences in New South Wales that I will not detail, but you do also have, commencing in about 2001, dishonesty offences, such as entering enclosed land without a lawful excuse, on 19 April 2001, at Liverpool Local Court, Waverley Local Court on 18 April, goods in personal possession, custody, reasonably suspected as being stolen.  Liverpool Local Court on 26 June, conceal serious indictable offence, fined $1,000.  Another trespass type conviction, on 1 November 2001. 

40      Your most significant prior conviction and directly relevant to this offending was in the Campbelltown District Court, on 14 February 2002, for aggravated robbery, two counts.  You were sentenced to two and a half years' imprisonment with a non-parole period of 12 months.  Your counsel indicated that that was for a bag snatching episode.  Regardless of the particulars of the offence, it was a serious offence carrying that sort of gaol term, so it is relevant here although occurring in 2002, or for sentence in 2002, at that point you would have been 25 so it is a decade ago.

41      The next sentence of imprisonment that was imposed was in fact on
4 September 2003 for two counts of common assault and another count of goods - receiving effectively goods in personal custody suspected of being stolen, three months' imprisonment.

42      Then subsequent to that, your offending is of a licensing type.  You moved to South Australia at some stage.  There was two counts of failing to appear on bail, on 10 July 2007, where you forfeited $1,000 bail.

43      In Victoria, your prior convictions commence on 9 October 2007 at Stawell, where you were sentenced to a four months' sentence of imprisonment suspended for a period of 18 months.  You were able to successfully not breach that suspended sentence.

44      Your next appearance was on the same day, where it was the burglary, one count, and theft of one count, an aggregate sentence.

45      Your next appearance was in Stawell, on 20 September 2011, for handling receiving stolen goods, one count, and theft, one count and you were sentenced to six months' imprisonment as an aggregate sentence and that was suspended for a period of 12 months.  You have breached that sentence as a result of this offending and that, again, is an aggravating circumstance.

46      Your prior convictions indicate you have been sentenced to two terms of imprisonment, two lots of sentences of imprisonment to be served, albeit in 2003 and 2002.  You have also served sentences too in recent times, two suspended sentences.  Overall your prior convictions are indicative of drug addiction, but do not evidence an entrenched recidivist criminal record.

47      I turn in more detail to your personal circumstances which are set out in the report of Mr Cummins, forensic psychologist.  He describes you as coming from a disadvantaged family background.  You had no father figure in your life and, as a drug counsellor put it, that is on the file, your family of origin was chronically disengaged.  You were the subject of sexual abuse by a stepfather when aged between six and eight.  You left school at the beginning of Year 11 and worked in the food processing sector in New South Wales for three or four years after leaving school.

48      You have a significant drug use history, including using heroin from age 14, using cannabis and you also have used methylamphetamine and were injecting that drug during the period leading up to this offending. 

49      You have fathered a number of children.  You have three children from different mothers that you appear to have little or no contact with.  You have been in a relationship with Ms Clifford, who was in Court on the trial and is in Court on the plea.  She has five children and you are the father of three of them.  Shortly before these offences, three of the children were taken away by the Department.  You had heard that one of the children was the subject of sexual abuse up in Hopetoun, when under the care of a carer.  You were intending to go up there to seek to address that issue and had obtained funds to do so by selling a car.  Unfortunately you did not go there and spent the money on alcohol on the night before this offending.

50      On the night of this offending, as I indicated, you were observed to be under the influence by your neighbour, Ms Brennan.  You cannot recall the event that night.  You told Mr Cummins that if you did commit the offences it was because you were engaged in a stress related alcohol binge.  You told him that you do not have an anger management problem and your criminal record would indicate that you do not have an entrenched record of violence.  Mr Cummins notes that you have never undergone any residential drug detoxification or rehabilitation.  He describes you as having an acute distress disorder at the time of the offence.  He indicates that you require mental health treatment in order to address your anger and frustration issues. 

51      You mentioned the issue of the problems with your son, in the record of interview.  This provides an explanation for your intoxication or use of alcohol, but I do not accept it a cause for any reduction in moral culpability for these serious offences.

52      When you were released on bail, you were placed on a credit bail program and the report is in evidence.  The report from the counsellor, Ms Morrison, dated 30 November 2012, is positive, in particular that you were able to cease heroin and ice use in the time that she was counselling you and also to reduce your cannabis use and she said that you would benefit from further counselling.

53      In terms of protective behaviour likely to reduce your prospects of recidivism, Ms Clifford has recently given birth to a baby and you thus are motivated to change your lifestyle and cease offending in order to spend time with your youngest child.  I accept that you will find imprisonment more burdensome due to your separation from this young child and I have taken that into account.  I have also taken that into account in relation to Mr Brasher.

54      Overall, Mr Rigby, given your history of drug use, your relatively patchy employment history and your previous dispositions, I place your prospects of rehabilitation as reasonable.  You cannot now call on youth as a matter of mitigation.  You are getting to an age where you really ought to take control of your life, but that will be difficult task for you given your disadvantaged upbringing.

55      I turn to the purposes of sentencing.  The basic purposes for which a court may impose a sentence are punishment, deterrence, both specific and general, rehabilitation, denunciation and protection of the community.  In sentencing I must have regard to a range of factors, such as the seriousness of the offences, the culpability of each of you for them, your personal circumstances and those of the victims, if any.  I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that as far as possible offenders are rehabilitated and reintegrated into society.

56      In sentencing each of you, considerations of general deterrence, just punishment and denunciation must be to the fore here.  It is totally unacceptable to invade the home of a vulnerable person with weapons just to steal a wallet.  To set upon him makes it even worse.  Your conduct has to be utterly condemned and a message has to be sent to others tempted to replicate your behaviour. 

57      Specific deterrence plays more of a role in the sentences that are to be imposed on you, Mr Rigby, given your prior appearances in court and your greater age than Mr Brasher.

58      I have sought to craft a sentence in each case that seeks to encourage your rehabilitation which I have already assessed.  I have also sought in crafting a sentence to ensure that there is no double punishment.  The offence of aggravated burglary is complete upon the entry into the premises.  The assault is a different offence and a separate act of violence, but the attempted armed robbery is, in a sense, wrapped up in the assault.  I accept the submission of each of your counsel that there ought be substantial concurrency in relation to the sentences to be imposed.

59      I turn now to the appeal of you, Mr Brasher, in the matter of Appeal No.AP130518 and AP130519.  The appeal was against a sentence imposed by the Stawell Magistrates' Court for receiving stolen property, being a dog, or a pup, wherein you were sentenced to one months' imprisonment.  That conduct which was set out in Exhibit A.  That aspect of the appeal involved you being in possession of a dog, or a pup that had been stolen a day or two prior from the pound.  You pleaded guilty to that offence.  The dog was observed at the premises earlier the night when the police attended and I regard the offence in the broad sweep of things as relatively low level culpability and I propose to impose a seven day sentence. 

60      I set aside the orders of the learned Magistrate and convict and sentence you to seven days' imprisonment, and it will be concurrent with all other sentences that are to be served.  That offending and indeed this offending breached the two month suspended sentence that had been imposed for contravening a family violence intervention order.  The learned Magistrate ordered that that sentence be served, wholly restored, for a period of two months and then added the one month for the receiving of stolen goods of a pup.  The usual presumption when a suspended sentence is breached, is that the suspended sentence be served cumulatively on any other sentences.  That, unless the Court otherwise orders.  Having regard to considerations of totality in this case, I will not order that the suspended sentence be wholly served and I will order that one month of that sentence be served cumulatively on the sentences that I am about to impose.

61      In sentencing each of you, I sought a range from the Crown.  The learned Crown Prosecutor put to the Court a range of a head sentence of between five to eight years, with a non-parole period of three to five and half years for you, Mr Rigby, and indicated that having regard to your younger age and lesser involvement in the offences then the range should be reduced by about 25 per cent for you, Mr Brasher.  I have considered carefully the range and am not of course bound by it, but I found it of some assistance in formulating the sentences I intend to impose. 

Sentence

62      Mr Rigby, on the count of aggravated burglary, you are convicted and sentenced to four years' imprisonment.

63      On the count of intentionally causing serious injury, you are convicted and sentenced to three years' imprisonment.

64      On the count of attempted armed robbery, you are convicted and sentenced to two years' imprisonment.

65      The aggravated burglary sentence is the base sentence and I order that one year of the sentence of intentionally causing serious injury be served cumulatively on the aggravated burglary sentence, making a total effective sentence of five years' imprisonment and I set a non-parole period of three years.

66      I declare 159 days PSD.

67      In your case, Mr Brasher, on the count of aggravated burglary, you are sentenced to three years' imprisonment. 

68      On the count of recklessly causing serious injury, you are sentenced to two years and three months' imprisonment.

69      On the count of attempted armed robbery, you are sentenced to 18 months' imprisonment. 

70      I order that nine months of the sentence on the count of recklessly causing serious injury be served cumulatively on the three year sentence of aggravated burglary and I order that one month of the sentence of the breach of the intervention order be served cumulatively on the sentences on the indictment, making a total effective sentence of three years and ten months and I declare a non-parole period of two years.

71      I declare PSD of 152 days.

72      The Crown has sought against you, Mr Brasher, either a forensic sample order, if there is one not available, or an order that the forensic sample order that they have already taken from you, that you say they have taken, be retained.  I will make the order that it be retained.  If however, it appears that there has been no order, or they have lost the sample or something like that, I regard it as appropriate having regard to the seriousness of the offences to make an order that you provide a forensic sample, which would be a mouth swab and the authorities are entitled to use reasonable force to obtain that swab, if I make the order which I will make if it is required, otherwise I will make the retention order.

73      Do you see a retention order in relation to Mr Rigby?

74      Are there any other consequential orders?  Wrap everything up.

75      MR DOYLE:  Disposal orders.

76      HIS HONOUR:  Disposal?

77      MR DOYLE:  Just some items, some clothing and the curved pole.  I saw it on the file earlier.

78      HIS HONOUR:  Yes, I have got them here, disposal order - sorry, here is the retention order.  Sorry, I have got disposal orders here, yes.

79      MR DOYLE:  Yes.  I will get my instructor to supply a retention order.

80      HIS HONOUR:  This is a disposal order for a pole, cord pants and a polo top.

81      MR DOYLE:  Yes, that is right, Your Honour.

82      HIS HONOUR:  Yes, I will make those orders.  In sentencing each of you, I have taken into account all the submissions made on your behalf by each of your counsel, even if I have not expressly referred to them in the course of my sentencing remarks.

83      Any other matters, Mr Doyle?

84      MR DOYLE:  No, Your Honour.

85      HIS HONOUR:  Ms Clark?

86      MS CLARK:  No, Your Honour. 

87      HIS HONOUR:  Ms Ramsay?

88      MS RAMSAY:  If Your Honour pleases.

89      HIS HONOUR:  Yes.  I thank counsel for their assistance in this trial, plea and stand down until 2.15 for another matter and then 2.45 for the other matter.

90      (Section 464ZF order signed and acknowledged.)

91      (Disposal order signed and acknowledged.)

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