Director of Public Prosecutions v Russell

[2019] VCC 1909

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-19-01403

DIRECTOR OF PUBLIC PROSECUTIONS

v

NATHAN RUSSELL

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JUDGE:	HIS HONOUR JUDGE MCINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	1 November 2019
DATE OF SENTENCE:	20 November 2019
CASE MAY BE CITED AS:	DPP v RUSSELL
MEDIUM NEUTRAL CITATION:	[2019] VCC 1909

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Plea of guilty – theft, reckless conduct endanger life, attempted aggravated carjacking, possess drug of dependence guilty – theft –

where accused has significant priors.

Legislation Cited: Sentencing Act 1991 (Vic) s 5, s 6.

Cases Cited: DPP v Dalgliesh (a Pseudonym) [2017] VSCA 360; 271 A Crim R 1, R v Pasznyk [2014] VSCA 87 [67], Ibbs [1987] 163 CLR 447, 452.

Sentence: Convicted and sentenced to a total effective period of imprisonment eight years and nine months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr T. Bourbon	The Solicitor for the Office of Public Prosecutions
For the Accused	Mr C. Terry	Sarah Pratt & Associates

HIS HONOUR:

1Mr Russell pleaded guilty to a number of charges in Indictment No.K10622744.  At the time of this offending, Mr Russell was 33. He is now 34, having been born on 24th day of May 1985.

2As has just been explained from the higher Court sentencing statistics, offending at that age, certainly insofar as reckless conduct endangering life, places Mr Russell right within the major age statistic.  Mr Bourbon appeared on behalf of the Director, as he does today.  Mr Terry appeared on behalf of Mr Russell, as he does today. 

3Mr Russell pleaded guilty to eight charges on the indictment. Exhibit A was tendered, which is the prosecution opening, which was accepted by Mr Terry as the facts upon which I am to sentence his client. The first three charges concern charges of theft. Such charges, pursuant to s.74(1) of the Crimes Act are subject to a maximum penalty of 10 years, indicative of course of the seriousness of such charges.

4The first of such charges, Charge 1, concerned a theft on 22 February of 2019, of a Nissan Navara from a Ryan Hagen Howe.  Indeed, that was of a car ultimately used for the endangering life offences.

5The next charge is a charge of theft from a Coles petrol station committed on the fifth day of March and the final theft is of three bankcards owned by a Tim Moody, which was stolen from his car, after an attempt by Mr Russell and his accomplices to steal that car.

6The next three charges, Charges 4, 5 and 6, are laid under s.22 of the Crimes Act being reckless conduct endangering life. These offences occurred on 9 March this year. The seriousness of such offences is demonstrated from the fact that the maximum sentence for such an offence as set by Parliament is one of 10 years. It sits in a number of hierarchies within the Crimes Act, but the most particular hierarchy is the next charge, that is, one of endangering persons, not of endangering lives, under s.23, which brings with it a maximum penalty of five years.

7Charge 4 concerned driving by Mr Russell on the EastLink, at 4.00am in the morning, whereby he drove on the wrong side of the freeway, at speed and at times with no lights. 

8Charge 5 involved recklessly driving on two occasions into a factory, in order to avoid being followed by a police helicopter. He drove into the factory while workers were there, who were the victims in this matter, or the potential victims.

9Charge 6 occurred at the end of total driving period of some 50 minutes, when Mr Russel drove with speed into a service station and crashed into a stationary vehicle, in which the owner was seated, a Mr S. Chin.

10Mr Russell then sought to escape, knowing that police would soon be there.  This is when he committed the most serious offence, at least by way of maximum sentence, the attempted aggravated carjack.  Pursuant to the provisions of s.79A and 321P, an attempted aggravated carjack has a maximum penalty prescribed by Parliament of 20 years.

11The final offence, Charge 8, is an offence under the Drugs, Poisons and Controlled Substances Act, under s.73(1)(b) and (c), being found in possession of methamphetamine.  There is no suggestion that there was any use, other than personal use, and the maximum sentence for that is one of 12 months' imprisonment, 30 penalty units and/or both.

12In addition, the Court was, pursuant to s.145 of the Criminal Procedure Act, asked to take into account eight summary charges. Charge 7 is a charge of drive while disqualified between the period 22 February 2019 and 9 March 2019, an offence which, when committed on a subsequent occasion, pursuant to s.30 of the Road Safety Act, brings with it a penalty of two years, 240 penalty units, or both.

13Charge 10, fraudulently display numberplates, an offence under s.72 of the Road Safety Act, which brings with it a penalty of two months and 10 penalty units. Charge 11, fail to stop upon a police direction, an offence under s.64A(1) of the Road Safety Act, which brings with it a penalty of six months, or 60 penalty units and/or both.

14Then three charges, 16, 19 and 20 of fail to stop after an accident, which pursuant to s.61(5) of the Road Safety Act, brings with it a penalty of gaol between a period of 14 days and maximised at one month, or 10 penalty units.

15Then Charge 22, a charge of drive under the influence of a drug, an offence under s.49(2) of the Road Safety Act, for a subsequent offence, the maximum penalty being one of 18 months' imprisonment and/or 180 penalty units. Charge 23, the final charge of the summary charges was possess a controlled weapon, which was a knife, an offence under s.6(1) of the Control of Weapons Act, for which the maximum penalty prescribed is 12 months and/or 120 penalty units.

16Pursuant to s.51B of the Road Safety Act, a person convicted of driving under the influence must have his licence cancelled and be disqualified, for a period of not less than four years. 

17The others who were in the car with Mr Russell at the time were not charged.  I am not sure why, although it was suggested by the prosecutor that they had been cooperative and apparently their comments led to the prosecution not accepting the excuses proffered in the interview with the psychologist by Mr Russell for this escapade.

18In the record of interview, Mr Russell said predominantly that he did not remember these events.  I have been asked to sign a disposal order and two forfeiture orders, to which no objection was raised and I have signed those orders.

19The circumstances of this offending are horrendous.  I have viewed the video of Charge 4, in particular, but also the video, insofar as it relates to 5 and 6, of which, there is another internal video.  This driving was preceded by Mr Russell being observed failing to stop when being so directed by a police officer, after the police had observed him driving at high speeds in excess of 140 kilometres and going through a red light.  That makes up, the failing to stop upon a police direction, Charge 11.

20Charge 4, involves Mr Russell subsequently at 4.00am in the morning, at times with his lights out, driving the wrong way, at speed, along the Eastern Freeway.  Exhibit B demonstrates, by way of the infrared night video footage, that the driving can only be described as frightening.

21Such is demonstrated by the Court being able to align the driving with the calls made to “000” shortly after such driving occurred.  These calls begin at 5.02 in the morning and last until approximately 5.07am, Exhibit K.  The offending was recorded on video, as I have said, taken by the police helicopter as it kept track of Mr Russell's vehicle, and takes place from 4.58am to 5.03am.

22During the driving on the freeway, in the manner which I have indicated, the following responses are received from “000” callers. Those callers describe the driving variously as “a big four wheel drive is flying”, “doing 150 with no headlights”.  Another call, “doing 120”, “we nearly had a head-on”. Another, “he actually deliberately drove at me”. Another, “headlights were coming right at me”. Another call, “very dangerous, someone is going to have a head-on.”

23Those calls demonstrate from the reaction of the people driving the correct way on the freeway, what one would imagine if you had come upon Mr Russell.  In fact, when you observe the video tendered to the Court, Exhibit B, Mr Russell drives the wrong way on the freeway past 11 vehicles, including a large semitrailer and three caravans.  At times, he appears to veer across the road towards them.  Subsequently, he comes off the freeway, Charges 4 and 5 are committed, and the first of the leave the scene of the accidents occurs with Mr Hansel's car, summary Charge 16.

24Insofar as the driving that makes up Charge 4, I must say that this is the worst driving I have observed in my time as a Judge of over 20 years.  How no one was killed is an absolute miracle.  Mr Terry proffered the excuse for this driving, or as an explanation, I suppose, that his client was under the influence of drugs and was panicking as a result of the police seeking to apprehend him.

25This Court, of course, must be careful to ensure not to punish Mr Russell twice.  He is charged summarily for driving under the influence.  However, I accept, as part of the explanation for such driving, that at the time he was driving under the influence of drugs.  Apparently that drug was GHB, that is, gamma-hydroxybutyrate.  He described his own driving, recorded in paragraph 82 of Exhibit 2, the psychologist's report, to which I will come to in due course, as “sheer stupidity”.  No one in this Court, Mr Russell, is going to argue with that.

26Charge 5, which involves two episodes, in order to avoid detection from the helicopter, of driving directly into a factory, made worse because, you then came upon two workers who were there, but specifically one worker on the first entrance. As was put by Mr Terry, there is no suggestion that you intended to place them in the situation that they found themselves in, however, yours is a charge of recklessness.

27One is able to observe this offence from the helicopter video, and the CCTV inside the factory, which records your two entrances into the factory, in particular, the first entrance, where one worker has to move out of the way to avoid being injured.

28Finally, insofar as these endangerment charges are concerned is Charge 6.  After the factory incident and thereafter driving on the wrong side of the road in Keysborough, you finally enter the 7-Eleven service station and crash into a Toyota Camry, in which was seated Mr S. Chin, the owner.  Again, there is no suggestion you intended to do it, but the force of the collision was sufficient to cause significant damage to Mr Chin's vehicle, and the point must be made that this accident occurred next to a petrol bowser.  Summary Charge 19, as to leaving the scene of an accident relates to one of the victims from the factory, where you damaged his car, Mr Antonio and a fail to stop in regard to Mr Chin's vehicle. (Charge 20)

29The next charge, 7, that is, the attempted aggravated carjacking, comes about from you finding, as a result of Charge 6 that your car is disabled, due to the accident, you then attempt to further your escape from the police.  You use a crowbar to smash the window of another car parked at the service station, go round to the driver's side and ask for the keys.  When those keys were not produced, you desist and leave the scene. You are apprehended very shortly thereafter in the carwash in that service station.

30In your car after you were arrested is found the knife, which makes up summary charge 23 and also the small amount of methamphetamine, which makes up Charge 8 on the indictment.  As a result of admissions made to the police, you are charged with having driven under the influence of a drug, which was GHB, which I have also already referred to, which makes up summary Charge 22.

31As I say, the reaction to watching this driving can only be described as dramatic.  I accept what Mr Terry put to the Court, that it is difficult to resist the visceral impact of this video, and one must be careful to not have an overly emotional response. The response to such video must be tempered, one hopes, by dint of long experience. I accept the submissions made by Mr Terry in this regard.

32Unfortunately, Mr Russell, your moral culpability here is aggravated by your prior record.  In R v Pasznyk [2014] VSCA 87 Priest JA [67] said:

'Although no principle of sentencing dictates that more severe sentences be meted out to those who repeat criminal behaviour and the appellant (in that case) cannot be punished again for his earlier driving, his prior convictions for alcohol-related and other serious driving offences demonstrate that the appellant's moral culpability is high and his prospects of rehabilitation are poor, that he has a propensity to commit serious driving offences and thus the community's need for protection is enhanced and that, as a factor in sentencing, specific deterrence is of increased importance.'

33That quote, it seems to me, when one makes allowance that it relates to a culpable driving case, which this case is not, by way of the principles expressed, is totally applicable, Mr Russell, to your case.

34Your prior offending is extremely serious. In order for me to fully understand its extent I was given police summaries, which were tendered as Exhibit E to J respectively, without objection.  As I have perceived it, you have three priors for driving while disqualified, three for driving while authorisation suspended.  You have two priors for driving while intoxicated and three priors for driving while affected by drugs.  You have a prior for driving in a manner dangerous, two priors at least for careless driving and one prior for fail to stop.

35On 21 January of this year, you appeared before the Magistrates' Court for a series of charges and a breach of a CCO.  Those charges included reckless conduct endangering serious injury, driving in a manner dangerous and several assault charges.  Remarkably, you were, at the Magistrates' Court, given a sentence of 276 days and the community corrections order, which you had breached, was extended. Even more remarkably, one and a half months later, after being treated generously by that Court, you commit these serious offences.

36Your offending begins at 2003, when you were aged 18.  There were no prior Children's matters alleged against you.  Offending, unfortunately, has been consistent since that time.  The first, was a sentence in this Court, passed by Judge Murphy on the 21st day of April 2009.  Albeit that you were sentenced when you were 24, the offending occurred when you were 22.  It involved serious criminal damage and assaults as part of an aggravated burglary. You also received a serious stabbing injury yourself as a result of that escapade.  You were sentenced, at the age of 22, to a period of imprisonment of two years and 10 months, with 17 months to be served before you were to be eligible for parole.

37Your next sentence occurred in the Magistrates' Court on 20 February 2014.  Here, you were convicted of drive in a manner dangerous. This driving occurred on 6 December 2012, and came about as part of a domestic dispute.  You had driven in a dangerous manner subsequent to that dispute. You were sentenced to four months' gaol, which was part of an effective total, of six months' gaol.

38You were next sentenced on the 20th of the 3rd 2017, for a road rage offence, which involved assault with a baseball bat, criminal damage, reversing when unsafe and driving while disqualified.  You were sentenced to a period of imprisonment of 180 days and given a community correction order for 18 months.

39Your next sentence occurs on the 20th of September 2017, when in regard to driving in 2016, you were convicted of careless driving.  You went round an intersection and drove into a truck.  You were found with drug paraphernalia in that truck, as was methamphetamine found and you were injured as a result of that.  You were then given three months' gaol by way of total sentence.

40The next sentence is the sentence I have already referred to, when you were treated so leniently at the Ringwood Magistrates' Court.  That involved driving in April of 2018.  The driving by way of manner dangerous was you driving in an erratic manner on the wrong side of the road.  You failed a drug test.  It was put before that Court that you were a long time Ice user. In addition, on that occasion, was taken into account a further accident, where you had injured yourself in a car, again while you were on drugs and you had actually fractured your own leg.  That was the circumstances set out in Exhibit E.

41One does not normally go into such detail with prior offences.  However, as I have said, with such a history, with being treated so leniently in the Ringwood Magistrates' Court on 21 January 2019, it is totally remarkable to me how
Mr Russell, one and a half months' later, you commit these most serious offences, of which you are before this Court today.

42Your background is very concerning, by way of not only offences on the road, but general criminal offences, and is lengthy indeed. Your driving has placed people in danger on many occasions and you have committed serious assaults upon people.  As I say, given such a background, the moral culpability of your offending here must be seen as high.

43In the plea on your behalf, Mr Terry addressed the objective criminality, or seriousness of these offences.  He accepted that Charge 4, being the driving on the Eastern freeway, was the most serious offence, and that clearly was the unanimous view of all at the Court. By your driving, the risk of death was very high for all users of that freeway on that night. The objective criminality was high, using the scale of heinousness that the High Court detailed in Ibbs [1987] 163 CLR 447, 452. I find that your objective criminality in regard to Charge 4 must be classified as high.

44As to Charge 5, involving the driving into the factory, as put, the speed was not high, although it seemed to me very hard to tell from video, the speed in regard to the first instance seemed faster than the second.  It was also put that you were only in the factory briefly and that it was, to use your counsel's words, a chaotic attempt to avoid the helicopter, or evade the helicopter's observations.

45I accept that the charge here is reckless conduct endangering life, but the seriousness of your conduct is demonstrated by the interior video which shows the worker innocently working away when suddenly he is disturbed by your car coming into the factory.  He clearly had to move out of the way to ensure that he was not injured.  In my view, the objective criminality of this matter must be classified on the heinousness scale at mid to high.

46In regard to Charge 6, again, this was part of your chaotic attempt, as your counsel described it, to evade police detection.  Here not only was there recklessness shown, but you sped into this petrol station and impacted the car with some force. As I say, it is fortunate for all that everyone at that petrol station was not incinerated.

47The learned prosecutor submitted that I should conclude that the objective criminality in regard to Charge 6 was less than Charge 5.  Having considered the circumstances, I do not accept that submission. I do not think there is much difference between them and I classify Charge 6 also by way of its objective criminality as between mid to high.

48Coming then to Charge 7, the attempted aggravated carjack, although it is, as I have said, the most serious charge, it is clear that it occurred for a very small period, you were charged for an attempt only, when the driver told you he did not have the keys, I am not too certain why, when he is sitting where he was, but that is what he said, you did not persist and left immediately.

49It was put by your counsel that this was not a typical attempted carjack, to which the prosecutor and I also agreed. Of course, initially you broke the window with a crowbar.  However, I accept the assessment, which was discussed at your plea hearing, the objective criminality must be seen as low, despite it being the most serious charge.

50The plea itself made on your behalf involved a written submission by
Mr Terry.  He conceded immediately, that the only sentence appropriate, given the seriousness of these crimes, is one of immediate imprisonment.

51Mr Terry set out your personal circumstances, in particular, at paragraphs 4 through to 6.  Your early life, moving throughout Australia.  Staying with your father and taking correspondence schooling.  All of these matters led to difficulties in your life.  You got to Year 10 in regard to your education.  You have essentially had labouring-type jobs, in particular, in earthmoving, and you have been described by one of the referees as a good employee who is prepared to work hard.  You unfortunately became involved very early with drugs, and were first sentenced, at the age of 22 in 2009, to your first gaol sentence.  Your drug addiction would appear to have been multi-substance.

52In support of the plea was tendered Exhibit 2, the report of consultant psychologist Carla Ferrari. That report was dated 29 October 2019.  Because of the traumas that you have caused yourself, both by way of the broken leg and the stabbing incurred during your criminality, in assessing you, Ms Ferrari determined that you suffer from post-traumatic stress disorder and at paragraph 104, she said this about you.

'Mr Russell meets the criteria for PTSD, having been exposed to identifiable stressors, in which he was exposed to, or experienced...'

53I am sorry, for some reason, the 104 I meant to refer to was not that 104.  At p.10 and 11 there seems to be some repeat.  If you look at the report, p.10 has paragraphs 101 to 106.  If you turn over to p.11, which has paragraphs 107, 108 and then starts again at 102.  I wanted to refer to the 104, which is on p.11.  That says this, about your drug use:

'There is also evidence of severe substance use disorders at the time of the offending, with Mr Russell describing a pattern of compulsive self-medication with substances, hazardous use, cravings requiring increased amounts to achieve the same effect.  Spending a significant amount of time obtaining, using, recovering from drug use.  Attempts to cut down or abstain were unsuccessful.  Social and interpersonal problems related to use, neglecting major roles, responsibilities or obligations, continued use, despite physical or psychological problems.  His abuse of substances at the time of offending would have further affected his judgment, decision-making and amplified his behaviour, increasing his risk of impulsive, reactive and poorly considered actions.'

54It was as a result of that opinion and in particular, her suggestion following on in paragraph 114, that I requested Mr Terry to advise whether this report been put before the Court on a Verdins basis?  Mr Terry submitted no it wasn't, given that self-induced drug taking was involved in this case.

55Finally, I want to refer to Ms Ferrari’s opinion at [118], insofar as Mr Russell's risk of reoffending. I should read [117] first.

'In regards to general risk of reoffending, empirical literature outlines a number of risk factors, a number of dynamic factors', which she goes on and details. 

56Coming now to [118]:

'On the basis of these factors…Mr Russell would be considered a moderate risk of reoffending.  His untreated ADHD significantly increases his risk of instability and his emotional and personal factors.  Specifically, his impulsivity, his risk-taking, poor problem solving and self-regulation remain compromised while he is undermedicated.  This further increases the probability of self-medication with substances.'

57Given the totality of the circumstances of this case, can I simply say that I disagree with Ms Ferrari.  I do not consider there is a moderate risk of reoffending.  I consider, there is a high risk of reoffending.

58Mr Terry also tendered references.  Mr Russell's parents were here at the plea.  The references of both his parents and his uncle tend to indicate to me that the family unfortunately are not fully aware of his criminal history.  They concentrate on his character and are very supportive of him, as both a parent and a person, but they do make the point that he is a different man with drugs.  However, I take that family support very much into account, which was submitted by
Mr Terry as one of the facts in the totality of factors which have to be considered.

59There is also the offer of employment that he has from his employer.  He is obviously a valued employer.  It was submitted that he has shown by his statements to the psychologist and his plea some remorse.  He, by his plea, is entitled to a discount, which I provide to him, the early plea being utilitarian and not only that, but it serves justice and shows remorse.

60As far as remorse was concerned, the prosecutor submitted that the prosecution did not accept that subjective remorse had been shown, but clearly he is entitled to the full discount that comes from his plea.

61During the plea, I indicated to Mr Terry that I was considering in this case s.5(1)(e) of the Sentencing Act, in addition to all of the other matters that one has to take into account in s.5 and s.6, as to the need to give particular consideration, because of these offences, to a sentence which effected protection of the community.

62I also indicated that, given the totality of the criminality, that there was likely to be a harsh sentence passed on Mr Russell. In response, Mr Terry submitted that it was very important for the Court to be careful about reacting in an emotive way, that one is required to keep these crimes in perspective and ensure that totality is maintained.

63In response, the prosecutor also raised the issue of the totality.  That is, there are 16 charges here and therefore totality needs to be effected.  I have already discussed my view as to the submission as to the relative seriousness by way of objective criminality as to Charges 5 and 6. The only other matter that the prosecutor submitted is that though particular aspects of the driving have been highlighted in the videos tendered to the Court, the driving in this case occurred over a period of some 50 minutes.

64While I accept that, only the particular circumstances whereby reckless conduct endangered life must be considered.  As has recently been said by the High Court in Dalgliesh,[1] Mr Russell is entitled to a just sentence based upon the circumstances insofar as they apply to this case.  One hopes that one always achieves that, in any sentence, in this Court.

[1]DPP v Dalgliesh (a Pseudonym) [2017] VSCA 360; 271 A Crim R 1.

65Yes, Mr Russell, if you would stand up please?  Having given consideration to the totality of the matters put to me by both counsel, but in particular, the matters in mitigation by Mr Terry, I have determined to sentence you as follows.

66Taking the indictment first, in regard to the first charge of theft of the car, a period of imprisonment of one year. In regard to the second charge of theft, a sentence of three months, that is the petrol and in regard to the charge as to the credit cards, a period of three months. 

67Insofar as the most serious charge by way of culpability and objective criminality, that is, the Charge 4 on the Eastern freeway of conduct endangering life, Mr Russell, I sentence you to imprisonment of six years. In pronouncing this sentence, I am aware that the statistics filed this morning show that only in a small number of cases, that is, according to those statistics of May this year, only 8.8 per cent of sentences pronounced by this Court receive a sentence between six and seven years.I accept the comments by the learned prosecutor that statistics are always difficult, and one has to be careful in taking them into account. It is, however, important, given that breakup, for me to indicate that you have been given such a sentence by me, taking into account those raw figures, because I take the view, this is the worst driving I have ever seen in my career as a Judge, and after considering all relevant factors.

68On the second charge, Charge 5 for conduct endangering life, you will be sentenced to imprisonment of three years.  In regard to Charge 6, conduct endangering life, imprisonment of three years.  In regard to Charge 7, the attempted aggravated carjacking, imprisonment of nine months and in regard to Charge 8, the drug offence, imprisonment of two months.

69I order that the sentence on Charge 4 be deemed as the base sentence and that three months of the sentence on Charge 1, one year of the sentence on Charge 5 and one year of the sentence on Charge 6 be served cumulatively upon each other and upon the base sentence, making a total effective sentence under the indictment, of which I am sentencing you, Mr Russell, of eight years and three months.

70Coming then to the summary matters, on Charge 7, which is the drive while disqualified, as best as I can understand it, this is your fourth offence for drive while disqualified, you are sentenced to six months' gaol.  In regard to Charge 10, of fraudulently display numberplates, one month's gaol.  In regard to Charge 11, fail to stop upon police direction, two months' gaol.  In regard to Charge 16, fail to stop, seven days.  Charge 19, fail to stop, seven days.  Charge 20, fail to stop, seven days.

71In regard to Charge 22, that is, drive under the influence of a drug, this is your fourth such offence, and as a result, therefore, I sentence you to nine months' gaol.  In regard to possess controlled weapon, that is, Charge 23, I sentence you to two months' gaol.

72In regard to those summary offences, using the sentence under Charge 22 as the base sentence, I order that three months of the sentence imposed on Charge 7 be served cumulatively with the nine months imposed in regard to Charge 22, making a total effective sentence for the summary offences of 12 months.

73I order that six months of that 12 month sentence for the summary offences be served cumulatively upon the sentence imposed upon you for the indictment.  That therefore makes a total effective sentence for the indictment and for the summary matters imposed upon you of eight years and nine months.  The period that you must serve before being eligible for parole is seven years.  The 256 days you have served I declare to be service of this sentence, and that a record of that be kept in this Court of such declaration.

74Mr Russell, I am required by Parliament to instruct you as to the benefit that you have received from pleading guilty. Clearly, as has been put to me, the plea has been made quickly.  The circumstances of simply taking the plea of guilty alone as one factor, as required by Parliament, are very difficult, given the number of factors that I have had to go through in this case.  However, doing as best I can to comply with Parliament, can I tell you that had you not pleaded guilty, the total effective sentence that you would have served is not eight years and nine months, but 11 years and eight months.

75Can I also tell you that, had you not pleaded guilty, the non-parole period that you would have served is not seven years, but would have been nine years.  It seems to me that is as best I can do in complying with the requirements of Parliament.  Do I need to have to clarify any matters for counsel?

76MR BOURBON:  Your Honour, there is just one outstanding matter which was the licence disqualification period.

77HIS HONOUR:  Sorry, I apologise.  In regard to Charge 22, I should have added in, the licence disqualification pursuant to s.51(b) will be for a period of ten years.  I do that as a partial attempt to protect the public, albeit that that has been very much on my mind, that is, the fact of protecting the public in the period of imprisonment that I have imposed.

78MR BOURBON:  Your Honour if I could just clarify ‑ ‑ ‑

79HIS HONOUR:  Yes.

80MR BOURBON:  ‑ ‑ ‑ the order of the sentences, Your Honour?  So the base sentence is Charge 4, which is six years.  There is one year cumulative in relation to Charges 5 and 6.  Three months cumulative on Charge 1.  Nothing in relation to the attempted aggravated carjacking, Charge 7, that is wholly concurrent?

81HIS HONOUR:  Yes.

82MR BOURBON:  Yes, Your Honour.  Now just in relation to the summary offences ‑ ‑ ‑

83HIS HONOUR:  Base is nine.  Base is Charge 22, which was nine months. 

84MR BOURBON:  Yes.

85HIS HONOUR:  And I cumulated three months from Charge 7.

86MR BOURBON:  So that becomes ‑ ‑ ‑

87HIS HONOUR:  That makes 12 months.

88MR BOURBON:  ‑ ‑ ‑ twelve.

89HIS HONOUR:  And I've ordered that six months of that be served cumulatively upon the eight years and three months, making a total effective sentence of eight years and nine months.

90MR BOURBON:  Yes, Your Honour, I understand the maths, I'm perhaps just unsure why there are two total effective sentences.  Why Your Honour's imposed two total ‑ ‑ ‑

91HIS HONOUR:  Well the total effective sentence under the summary matter, just so you understand that.  And the total effective sentence under the indictment.

92MR BOURBON:  Yes, Your Honour, so the ‑ ‑ ‑

93HIS HONOUR:  Ultimately, the total effective sentence that he has got to serve for both is eight years and nine months.

94MR BOURBON:  As Your Honour pleases.

95HIS HONOUR:  Yes.  Any other matters?

96MR BOURBON:  No, Your Honour.

97MR TERRY:  No, Your Honour.

98HIS HONOUR:  Yes Mr Russell, you can be taken away.  Can I just plead with you, you have got to do something because as I say, how you have not killed people in this case is amazing, so your criminality has to stop now, otherwise you are going to be in gaol for the rest of your life, which I am sure no one wants.  Yes, thank you. 

99Mr Prosecutor, there has been a request from the media for access to the Air Wing video, which I think has been - I am not too - no, access to the Air Wing video that I have described, Exhibit B is it?   

100MR BOURBON:  B, yes Your Honour.

101HIS HONOUR:  B and for the factory video, Exhibit ‑ ‑ ‑

102MR BOURBON:  C, Your Honour.

103HIS HONOUR:  ‑ ‑ ‑ C.  Are there any objections to that?

104MR BOURBON:  No it was tendered, Your Honour.

105HIS HONOUR:  Yes.  All right, well that permission is given. 

106MR BOURBON:  As Your Honour pleases.

107MR TERRY:  As Your Honour pleases.

108HIS HONOUR:  Yes, thank you.

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