Director of Public Prosecutions v Roberts
[2017] VCC 93
•13 February 2017
m
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR 16-01331
Indictment No.F13910310
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| Wayne Allan ROBERTS |
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JUDGE: | HIS HONOUR JUDGE TINNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 February 2017 | |
DATE OF SENTENCE: | 13 February 2017 | |
CASE MAY BE CITED AS: | DPP v Roberts | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 93 | |
REASONS FOR SENTENCE
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Catchwords: Aggravated burglary; Theft; Summary offence: offending whilst on bail.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms Saville | Office of Public Prosecutions |
| For the Accused | Mr D. La Movie | VLA. |
HIS HONOUR:
1 Wayne Allan Roberts, you have pleaded guilty to one charge of aggravated burglary and one charge of theft; those are the charges laid on the indictment. You have also pleaded guilty to a related summary matter of committing an indictable offence whilst on bail.
2 You have admitted a criminal history before the courts. You are now 27 years of age.
3 The aggravated burglary was a burglary with the intent to assault. The features of aggravation were the carriage of an offensive weapon, being a knife and a Stanley knife as well; also, the presence of a person within the premises you entered and your awareness (or recklessness) as to that fact.
4 The maximum penalty for the aggravated burglary charge is 25 years imprisonment. The maximum penalty for the theft is 10 years, and the Bail Act offence carries a 3 month maximum.
Facts
5 The prosecutor, Ms Saville, opened this matter to me in accordance with a written prosecution opening that was dated 11 October 2016. Your Counsel, Ms La Movie, told me that this was an agreed statement of facts. I do not stray beyond those agreed facts. I see no need then to describe the full factual setting in these my reasons. I will incorporate the agreed summary into my sentencing remarks. Your counsel conceded that this was very serious offending and she was right.
6 It may very well be that you had no idea that Ms Guy was in the premises you entered and I certainly cannot exclude that view. She had, after all, only been there a very short time and there is no reason to think your entry was in any way motivated by her presence. I am told by your counsel that you had a grievance with two others who lived there and suspected that they, one of them at least, had been involved in some burglary committed upon you and that it was this grievance which fuelled this attendance and your entry. Ms Guy, who you did know, just happened to be there on the day. The point Ms La Movie was making was that this was not some targeted entry upon a domestic or intimate partner; I accept that. In fact you had intended to assault people other than Ms Guy and for the reasons raised on the plea. So I accept that, but there is not much mitigation to be found in that submission when one examines it. It was, on any view of it, a targeted entry to premises to assault and knives were carried by you. Very luckily the males you hoped to assault were not there. Who knows how this would all have played out had they in fact been present and been confronted by an alcohol‑affected man kicking in their front door and entering their premises wielding the two knives.
7 So the fact remains that you entered premises with an intent to assault and carried these two weapons; you kicked in the door. Ms Guy was asleep on the couch and was startled by your presence, armed as you were. She fled with your unpleasant words ringing in her ears: “Run, bitch, run”. She did just that, and then she went and raised the alarm. You then stole her purse.
8 You were on bail at the time of this offending.
9 You attended to report on bail later that day and you were arrested, and really, the less said about your interview the better, as you roundly denounced and abused the victim and denied presence at the scene or any involvement at all in this crime.
You pleaded guilty at the earliest opportunity and you have been in custody since your arrest on 24 November 2015, a period of, all up, 473 days; though, 69 of those had been previously declared when you were sentenced for some other matters in January 2016 at the Broadmeadows Magistrates’ Court.
Impact
10 Your victim has made a victim impact statement, which, with the exception of a couple of lines, the prosecutor, Ms Saville, read on the plea. Issue had been taken by your counsel with a few lines of the victim impact statement, and I ruled those as inadmissible and have no regard to them at all. As I say, they were not read out by the prosecutor when the impact statement was read. So I take into account the relevant and admissible portions of that victim impact statement. This was undoubtedly serious offending and it is unsurprising that it has caused your victim impact. She is scared of you. She has nightmares and tries her hardest not to think of what you did. I take the impact of your crimes into account.
Mitigation
Your counsel, Mr La Movie, raised a number of matters in mitigation. She relied primarily upon:
· Your early guilty plea and some cooperation with the police;
· The presence of some remorse;
· Your disadvantaged background;
· Your efforts in custody and the existence of a job and a place to live upon your ultimate release;
· She made submissions as to the seriousness of the offending;
· She relied upon a two reports from Mr Ball, as well as some other reports from a drug counsellor. She relied also on letters and references, as well as some clean drug screens and course completion and attendance documentation. She submitted that you had reasonable prospects of rehabilitation;
· She conceded the inevitability of a term of imprisonment, but argued that you could be sentenced to a term of imprisonment in conjunction with a community corrections order.
Prosecution
11 Ms Saville, who appeared on behalf of the Director of Public Prosecutions of this State, argued that the aggravated burglary was a serious instance of the offence and was committed whilst on bail. The Director submitted that prison was required, but that it in terms of potential release mechanisms, it would be open for me to deal with you by way of either a combined order with a community corrections order or a sentence with a non‑parole period being fixed.
12 I am not bound by any submission made to me, either by your own counsel or counsel for the prosecution. I do not ignore any submission that has been made, but what I have to do is strive to reach my view as to the nature of the sentence required in this case, and I simply do not believe it is open to me to combine a prison term with a community corrections order; such is the gravity of your offending. That was my provisional view on the day of the plea and it has not altered in the interim upon a review of all the material placed before me and the authorities.
Guilty plea
You have pleaded guilty and you have done so at what I judge to be the earliest opportunity. So I take that matter into account in mitigation of sentence. You have taken responsibility for your offending. You did not on the day of the police interview, but you did ultimately by pleading guilty. Witnesses, including obviously the unlucky Ms Guy, have been spared the experience of coming to court to give evidence. So too, the community has been saved the time and the cost and the effort associated with the conduct of either a committal hearing in the Magistrates' Court or a trial up in this court. You have facilitated the course of justice, and I must and do reward you for your decision to plead guilty and at the early stage which you did, taking responsibility in the way that you did. I must pass a lesser sentence upon you than I would have imposed had you been found guilty at trial by a jury. I also do pay regard to your level of cooperation with the authorities; this is not the biggest point on the plea if I might say so. You did not tell the police the truth, but you must not be punished for taking that stance; that is not a matter of aggravation. Anyway, at least you engaged with them in a co-operative fashion. So I take that into account in your favour.
Remorse
13 I turn now to the question of remorse. I must say, up until the point that your counsel disclosed to me a questionnaire that you filled out for Mr Ball, I held very significant reservations as to the presence of any remorse in this case. Your interview contained lies, but not just that; it contained expressions of contempt for your victim, the person who you knew was in the house after the point of entry, and even the latest report of Mr Ball included some worrying downplaying by you of the seriousness of the offending with your description of the door falling off the hinges when you knocked. Well, it did not. However, in your answers in the questionnaire, which are part of Exhibit 2 now, you were clearly expressing a level of remorse. I do not know why Mr Ball had not referred to it in his reports, but happily your counsel unearthed your words and that material has changed my view of the matter altogether.
In fact, when I then combine your sentiments expressed to Ball in that questionnaire, with your earliest of guilty pleas, I am in fact prepared to find that you do have some level of remorse, as your counsel suggests that I should.
Background
14 I have not even gone to your background at this point and I do not see any need to go to your background in any detail. You know what it is, and I accept the personal background that has been placed before me in the very thorough plea conducted by your counsel. There is also reference to your background in Ms La Movie's excellent written submissions, as well as in the reports of Mr Ball. You are 27 years of age and you were one of four children. Your early background was, in my judgment, very much unenviable, with a drug addicted and abusive mother and a violent father and the inevitable intervention by the Department of Human Services, with foster placements as a result of the abuse or neglect that you were suffering at the hands of your parents. You had difficulties at home and difficulties at school, and it is clear from the report of Mr Ball that you do not function at a very high level. You had suicidal thoughts as a young child and you were treated for mental health issues as a young child. You were turned out of home at the age of 13 and lived a life that was really well beyond your years. Drugs have been a major issue in your life for a long time and from a very young age. You have lost a brother when you were young. You do not seem ever really to have dealt with that appropriately, and this is not a criticism of you; it is not an easy thing for you to come to grips with. When you were 14, your then‑girlfriend who was much older than you had a child, your child, and that was a still birth. Again, you seemingly have never adequately dealt with that sad loss.
15 You had no choice as to your background in your developmental years. No one would choose that sort of background; you had no choice. They were the cards that you were dealt and they were not much of a hand. Your counsel argues that it was a background of poverty, neglect, and abject disadvantage, and I accept that it was. So I take it into account, as far as I am able to, your disadvantaged background, as has been disclosed to me in the materials. You have worked in the course of your life, having completed an apprenticeship. You still have support from your sister and from Ms Jeffes, both whom were at court on the day of the plea. Your employer also still supports you and his letter is before me speaking of the existence of a job.
16 You have a criminal record and I cannot ignore that. It is conceded to be of some relevance, but as relevant as it is, given your background, it really could be a good deal worse. You have been dealt with before for dishonesty offending; that is true. You have been dealt with before for crimes of violence. You have in the past been dealt with for possessing a knife. You have in the past been admitted to a community corrections order which you then breached. Upon the breach, the order was then confirmed and the email from Adrian McNeil (Exhibit 7) confirms that you must have significantly lifted your game, because you went on to complete that order. Despite that, you then committed a series of offences in 2015, which predate the aggravated burglary for which I must past sentence. Those offences were dealt with in January 2016 at the Broadmeadows Magistrates' Court. Though not strictly prior matters of course, they still have some relevance to my task as they involved allegations of violence and damage. Your counsel explained those various matters.
17 In fact, those matters were at one point before me formally as you had appealed against the sentences imposed in those matters at the Broadmeadows Magistrates’ Court on 14 January 2016. The Magistrate gave you 69 days imprisonment, which coincided then with the pre-sentence declaration as well as a community corrections order. You did not appeal on the day and I can easily understand why, given the moderate nature of that sentence imposed. In fact, you went on and appealed well out of time, only after it became apparent that you would not be bailed on the aggravated burglary matter. That was not an exceptional circumstance justifying the grant of leave, but rather a step taken pragmatically to have one judicial officer seized of all of your matters. So I refused leave and struck out the application for leave to appeal in relation to those matters.
18 The reason I raise those matters is that for some of those matters you were on bail at the time that you committed the offences for which I must pass sentence. That of course is an aggravating factor, as is conceded by your counsel. So the chronology of offending is obviously relevant. So too the fact that you have been given opportunities in the past. However, you have at least tried to comply with orders, and after one false start, you did then complete the community corrections order, and I do not ignore that fact.
Prospects of Rehabilitation
19 I turn then to your prospects of rehabilitation. Your counsel argues that you have reasonable prosects. Well, I cannot ignore the seriousness of the offending or the fact of it occurring whilst on bail or after the completion of a community corrections order, but nor can I ignore the efforts you have put in in the past to engage with treatment and your ability to comply with the confirmed community corrections order. You have had a job and hopefully you will again. Your criminal history, as I have said, is not a very lengthy one at all when one examines it and when one then has regard to your background placed before me. You still have support and you have been doing whatever you can to advance your position by doing such courses as you can in the present setting. You are drug free, you have been in prison for over 15 months. Now, the test will of course come for you upon your release, but I am certainly not going to write you off. I am prepared to find that that you do have reasonable prospects of rehabilitation, if you can abstain from the use of drugs. It will not be easy for you and you will need to confront some of the demons of your past, which I am sure to some extent have led you down the path of drug use and reliance on alcohol.
20 I have not descended to the detail of the written material placed before me and I do not see the need to do so. There were the two reports of Mr Ball. They are not relied upon as attracting any of the principles from the Court of Appeal decision of Verdins. Still, those reports are of use as spelling out your background and personality in detail, and as detailing to me your very low level of functioning and your relatively positive attitude to treatment. They make plain enough that it is a long road ahead for you. Ms Salih, from the Sunbury Community Health Centre, indicates that that service is agreeable to resuming counselling upon your ultimate release. The earlier report that she authored speaks of your positive attitude to past counselling. Now, I have to be realistic here. It is not easy for one such as you to snap to attention and make lasting changes to your life. Setbacks or relapses are not uncommon. In fact, they are probably to be expected. I note that, for instance, you were to attend an appointment with Ms Salih on 23 November 2015. Well, the next day was the date that you committed the offences for which I must past sentence. But at least you were making attempts, and attempts that signify to me that you were not happy with the sort of life that you were leading. You had earlier complied with the confirmed community corrections order. Nor are your efforts in prison to be sneered at. You have been continuously in prison since 24 November 2015. You are working, you would appear to be drug free, and you are doing various courses and programs. Well, what else can you do but your best? You still have support on the outside and of course that is very important. A job to go to, a place to live; well, they are obvious positives. Nor are you too old to change your ways; you are still a relatively young man and you can yet live a decent and satisfying life. So I believe you do have quite realistic prospects of rehabilitation and that they should be assessed as being reasonable.
21 I take into account all of the written material that has been placed before me, as well as the oral submissions of your counsel. I have not seen the need to work my way through the two references placed before me, but of course they are of value. I have read them and I take them into account.
The Offences
22 As to the offences themselves, your counsel conceded that it was very serious offending - well, she was referring really to the aggravated burglary - with some features of aggravation, but she argued that it was not in the most serious category, if that phrase is still permissible after the High Court decision of Kilic.
23 Well, the aggravated burglary was clearly not as serious as some instances of that crime which are committed and come before the court. Then again, it was far more serious than some examples. Make no mistake, it was serious enough, given the manner of entry and the kicking in of the door and the carriage of the two offensive weapons. There has been much discussion in the Court of Appeal about the inadequacy of sentencing practice for the crime of aggravated burglary and the manner in which a court ought to assess the seriousness of a given offence. See the cases of Hogarth and Meyers [2012] 44 VR and Bowden [2016] VSCA 283.
24 In the case of Meyers, a number of considerations were set out, though obviously they are not exhaustive, and your counsel referred to them in her submissions to me. They include the intent upon entry, the mode of entry, whether a weapon was carried, whether the offender was alone or in company, the time of the day, what the offender knew about who would be inside, and whether the offender was someone of whom the victim was particularly frightened. Well, you were not in company and the timing was not in the early hours of the morning when people were asleep. You were not targeting Ms Guy at all; she just happened to be there. You expected the males to be present.
25 In my assessment, your crime is well above the lowest examples of the offence of aggravated burglary. You entered the premises with the intent to assault. You were in possession of two offensive weapons. I accept there was no premeditated attendance at the address to seek out Ms Guy. As I have said, you likely were not even aware of her presence. You were going there because of a grievance with the two males who lived there, and you were intent upon exacting some form of punishment or revenge. Well, the Court has a role to play in discouraging vigilantism. It is not mitigatory that you were affected by alcohol. It is inescapable that there has been at least some rudimentary planning or premeditation. Again though, I accept that it was quite shambolic and unprofessional, the actual offence itself. No disguise was employed, but you forcibly entered the premises; you smashed the door in and entered wielding the weapons. It was relatively brief as it unfolded.
26 It is a serious offence to enter another person's premises as a trespasser as you did. You intended to assault and you were armed. This sort of offending is inherently dangerous. It is difficult to ever predict the end outcome. How can you? How can you know in advance how those within premises will react to such a violent and fluid situation? Well, of course you cannot.
27 Not every aggravated burglary leads into other offending within the premises. Some do and some do not; this one did, though it was theft not assault. Once you were inside, the event fizzled out swiftly with Ms Guy leaving quickly. You then committed the theft, which was obviously an opportunistic offence.
28 You were on bail at the time.
29 Well, virtually every aggravated burglary that comes before this court has, at its foundation, some motivation, a motivation that has driven a person to illegally enter another person's premises as a trespasser, either with an intention to assault or to steal or to damage property. Sometimes, there is a grievance caused by a debt. Very often, it is jealousy amidst a failed relationship; that is not the position here. Here you had an intention to assault and the setting was the grievance over the alleged burglary committed by the male residents, who very fortunately were not present on the day in question. But it is no good excuse to commit this serious crime.
30 This was, as your counsel concedes, very serious offending.
Purposes
31 I turn now then to the purposes of sentencing. I have to consider a number of purposes of sentencing and they are not limited only to your prospects of rehabilitation. If all I had to do was consider your prospects of rehabilitation, sentencing would be easy. Your counsel accepts that weight must be given to general deterrence, to protection of the community, to denunciation, punishment, and specific deterrence; she is right. She argues that these matters should not swamp any consideration of your rehabilitation, which she argues is still of importance given your age and some indications in the materials of your being reclaimable. Again, I agree. Your prospects of rehabilitation are still a matter of importance, but I am required also to impose a just and proportionate sentence in relation to your offending. You must be punished, and of course that is an important sentencing purpose. I must also denounce your conduct and I do. Again, it is important; this was serious offending.
32 There are other purposes of sentencing and one of those is the need for this court to seek to discourage or deter you from offending in the future. I clearly must give that principle of specific deterrence weight in my sentencing task, given the nature of your offending, your criminal history, and given that it occurred whilst on bail.
33 I must also give some weight to protection of the community from you.
34 General deterrence is a major sentencing purpose in this case. This court must send a loud and very clear message to other individuals in the community, people who might be minded to commit this sort of serious and illegal entry into another person's home. Such conduct simply will not be tolerated by the courts and will almost inevitably be met with a sizeable term of imprisonment. That is because of the serious nature of aggravated burglary, a fact which has been spelled out by this States’ highest court time and time again over the last few years. It is a fact also borne out in the sentencing statistics maintained at the Sentencing Advisory Council.
35 I must, and I do, pay regard to current sentencing practices and I have considered the Sentencing Advisory Council's Snapshot No.184 of June of the last year for the offence of aggravated burglary. The theft snapshot is of no value at all, given the range of conduct embraced by such an offence.
36 The aggravated burglary snapshot discloses that in the period covered by the data, where prison was selected as a disposition, there was a median sentence of two and a half years imprisonment. The most common prison sentence for aggravated burglary was two years to less than three years, and the second most common sentence was three years to less than four years, with the third most common prison sentence being one to less than two years.
37 Now, all of that is just statistical material, and it is obvious enough that such statistical material has deep limitations to a court. Much if not all of that data predates the case of Boulton.
38 That sort of material says nothing about the individual features of the offence or of the offender, and even so called comparable cases have inherent limitations. The case of Debono to which I was referred was not even a comparable case, given the difference in personal circumstances and differences in offending. That accused, for instance, did not actually even enter the premises at all and was not fixed with any knowledge of the existence of a weapon carried by those he had joined with. It is a world away from your offending, and in any event, much has happened in this area since that decision of Debono. As the Court of Appeal made plain in Bowden, the taking of a weapon markedly increases the objective gravity of the offence.
39 I have looked also at the Judicial College of Victoria sentencing manual dealing with an overview of aggravated burglary sentences, and I have looked also at the case of Hogarth. That case provided some useful guidance in relation to sentencing for the crime of aggravated burglary and included a large table of cases.
40 That decision and decisions since, including the case of Whiteford [2016] VSCA 26, make clear how seriously confrontational as well as intimate‑partner aggravated burglaries are to be viewed. See also the case of Filiz [2014] VSCA 212, and I have mentioned already the recent case of Bowden.
41 You committed a confrontational aggravated burglary. It was very serious offending when regard is had to the carriage of the weapons and means of entry.
Boulton
42 Your counsel accepted that there was a need for an immediate term of imprisonment, but argued that your future release could be provided for by way of release on a community corrections order. The Director of Public Prosecutions accepted that it would be open to impose a combination sentence, or alternatively to provide for potential release on parole.
43 As I have said though, I have to exercise my own sentencing discretion. I do not ignore those arguments, either of them, but I have to reach my own view as to what is appropriate in this case.
44 The guideline judgment in Boulton seems to have been misunderstood by very many in the legal profession. I am not suggesting that Ms La Movie has misunderstood it, but the reasons in that case of Boulton were of a general nature. There was nothing in that case which obliged a sentencing judge to reach a particular conclusion in a particular case. The Court of Appeal made that very plain in the case of Boulton itself. It has repeated those sentiments repeatedly since in many other cases.
45 It is obvious that not every offender for every crime can or should be admitted to such an order. There are some crimes where the purposes of sentencing cannot be given adequate weight by the use of such an order, even when used in combination with a prison term. There seems to be a school of thought amongst some practitioners that a combination‑type order is assured if there is a head sentence, or for that matter, a non‑parole period being contemplated of less than two years. Well, that is not the law. Sometimes, it will not be open to impose a combination sentence given the ceiling of two years, but sometimes an order will not be open in the sound exercise of the sentencing discretion, even where potential release could occur inside two years either by way of parole release or even sentence expiry.
46 I noted in discussions with your counsel that Parliament has relatively recently moved to restrict, in the future, the community corrections order disposition. They have set out some offences for which an order cannot be imposed, other offences where certain circumstances must exist, and, across the board, is limiting the order being made in combination with a prison sentence where the prison sentence is greater than 12 months. See the Sentencing (Community Corrections Order) and Other Acts Amendment Act 2016. I hasten to add that those provisions are not yet in force and do not apply to this, my sentencing task.
47 The Court of Appeal, in a case of Basic delivered in May of last year, expressed the pretty strong view that the community correction order disposition was plainly not having its desired effect. They stated that it was being misused and misunderstood by judges who were passing and constructing sentences almost as a ploy or a device to keep open the community corrections order disposition; that there seemed to be very many cases where sentences just below two years were imposed simply to allow combination‑type sentences to be selected. The Court of Appeal suggested that this approach tended to distort the whole process of sentencing, that it was not the way that sentencing is meant to take place, and that this process distracted from a true consideration of the gravity of the offending before the court. They went on to say that it had led, in their judgment, to artificial or compressed prison sentences being imposed to allow a community corrections order to be imposed in combination.
48 The Court of Appeal in that case urged action to be taken by Parliament. Well, whether in response to those words or not, as I have said, Parliament has acted; though, as I say, those amendments do not apply to my task.
49 Section 5(4C) of the Sentencing Act prohibits the imposition of a sentence of confinement unless the Court concludes the purposes of sentence cannot be achieved by a community corrections order to which specified conditions are attached. So a court needs to pay careful attention to the purposes for which sentence is to be imposed and consider whether they can actually be achieved by a standalone community corrections order. Well, of course there are some crimes that are just too serious and this aggravated burglary plainly is one of them.
Your counsel was not suggesting that it was possible for you to avoid imprisonment. She was arguing for a term of imprisonment and your ultimate release into the community on a community corrections order.
50 Your offending demands that you serve a substantial term of imprisonment.
51 There is no alternative at all, other than to impose a term of actual imprisonment upon you. However, you have already served to this point 404 days in relation to this matter and you have been in custody for 473 days. I have considered whether that is adequate. I do not believe that it is. I believe that I must impose a sentence which will significantly extend your stay in prison. I just do not believe that it is open or appropriate to admit you to a community corrections order in this case in combination with a term of imprisonment. The offending is just too serious. The sentence needs to adequately reflect general and specific deterrence, denunciation, community protection, and punishment. I believe that I must pass appropriate individual sentences, express some level of cumulation, and then move to fix a non‑parole period.
52 The Adult Parole Board will then be in a position to assess your needs at around the time of your becoming eligible for release on parole. Whether you will be released on parole is not a matter that I am allowed to even consider. Of course, I have no power over the Adult Parole Board and I am not even permitted to take their possible future action into account in any shape or form. What I must do is proceed on the footing that you will serve every day of the head sentence which I will soon pronounce.
Totality
53 I have taken into account the principle of totality. There is obviously a relationship between the three offences before me. Further, you have been continuously in custody for a period greater than the pre‑sentence detention period that I am able to declare, and I am entitled and indeed bound to bear that in mind as well.
54 I have engaged in a last look at the sentences imposed by this court and the total effect of them in endeavouring to guard against the imposition of a crushing sentence upon you. Ultimately, despite all the matters raised in mitigation, I have reached the view that there really is no alternative but to impose a term of imprisonment upon you and one which then demands the fixing of a non‑parole period. The non‑parole period is one which will reflect the efforts that you have made and my judgement that you do in fact have quite realistic prospects of rehabilitation in the future.
Section 464 ZF
55 I have been requested to make a forensic sample order. That application is not opposed and I pronounce the order in the terms in which it is sought.
56 I order, pursuant to the provisions of 464 ZF 2 of the Crimes Act, that you undergo a forensic procedure for the taking of a scraping from the mouth in accordance with the relevant provisions of the Crimes Act until a sample of sufficient standard is obtained for placement on the database. I have made this order, I am satisfied, in all the circumstances that it is justified, owing to the seriousness of the offending, the prior convictions that are placed before me, the fact that the order is by consent, and that I judge it to be in the public interest.
57 This is the forensic sample order, Mr Roberts. I have not authorised a blood sample to be taken; I do not think I need to order that sort of invasive procedure at this point. I am authorising only a scraping from your mouth. It is not a difficult business, it is not particularly invasive, and it should be done really very swiftly and without any great problem to you. The authorities can use reasonable force to obtain that mouth scraping, and no doubt if they encountered any sort of resistance they would be back before me making application for a blood sample, which at this point I have not authorised. In any event, I have made, signed and pronounced that order.
Sentence
58 Mr Roberts, can you just stand up please briefly.
59 On the charge of aggravated burglary, that is Charge 1 on the indictment, I convict and sentence you to 39 months or three years and three months imprisonment. That is the base sentence.
60 On the second charge on the indictment, that is the charge of theft, I convict and sentence you to three months imprisonment.
61 On the summary offence of committing an indictable offence on bail, I convict and sentence you to seven days imprisonment.
Cumulation
62 I direct that one month of the sentence imposed on Charge 2 be served cumulatively upon the base sentence. The seven‑day sentence imposed on the summary offence will be served concurrently with the other sentences imposed this day.
Total effective sentence
63 So that results in is a total effective sentence of 40 months or three years and four months imprisonment.
Non Parole Period
64 I fix a period of 21 months, during which you will not be eligible for release on parole.
Pre-Sentence Detention
Now, you have been in custody already in relation to these matters for a period of 404 days. You get credit for that obviously. So that is reckoned as a period already served under this sentence that I have pronounced. So that declaration is to be noted in the records of the court pursuant to section 18 of the Sentencing Act.
Section 6AAA
65 I have told you that I have taken into account your guilty plea; well, I have. Had you pleaded not guilty and been found guilty, I would have imposed a greater sentence. Had you been found guilty of these offences following a contested hearing, I would have convicted and sentenced you to five years and nine months imprisonment, and I would have fixed a non‑parole period in those circumstances of four years and three months. So that statement made under section 6AAA is also to be noted in the records of the court.
Just grab a seat for a moment, please.
All right. Are there any other matters I need to attend to or any matters that either of you wish to raise at all or not?
MS FINNIGAN: No, Your Honour.
HIS HONOUR: Ms La Movie, are you going to go down and see him downstairs?
MS LA MOVIE: Yes.
HIS HONOUR: Yes, all right. Well, look, that completes the matter then. So I will sign that order shortly, but Mr Roberts can be removed. Thank you. Yes. Well, I have signed that order then.
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