Director of Public Prosecutions v Russell
[2017] VCC 1059
•4 August 2017
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No.CR 16-01481
Indictment No G11333183.1
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SHANE RICHARD RUSSELL |
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JUDGE: | HIS HONOUR JUDGE TINNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 July 2017, 3 August 2017 | |
DATE OF SENTENCE: | 4 August 2017 | |
CASE MAY BE CITED AS: | DPP v Russell | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1059 | |
REASONS FOR SENTENCE
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Catchwords: Aggravated burglary, intentionally causing injury, common assault, theft.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J. Jassar | Office of Public Prosecutions |
| For the Accused | Mr S. Norton | Stary Norton Halphen |
HIS HONOUR:
1 Shane Richard Russell, you have pleaded guilty to four charges that are laid on the indictment that has been filed in this court, being one charge of aggravated burglary, one charge of intentionally causing injury, one charge of common assault and one charge of theft.
2 You have a number of prior appearances before the courts, though nothing nearly as serious as these matters. There is one assault matter awaiting hearing in the Magistrates’ Court. You have been dealt with subsequently for an assault matter. You are 34 years of age and you had spent no time in custody until I remanded you into custody yesterday.
3 The aggravated burglary was constituted by a burglary with an intent to assault. The feature of aggravation was the presence of a person within the house that you entered and your awareness of that fact. After all, you entered with an intention to assault. The maximum penalty for the aggravated burglary charge is, as you heard, 25 years’ imprisonment. That should give you some sense as to how seriously this crime is viewed by the legislature. The maximum penalty for the intentionally causing injury charge and the theft charge is, in each case, ten years' imprisonment, and the common assault has a five year maximum term of imprisonment.
Facts
4 The prosecutor, Ms Moran opened this matter to me on 20 July of this year in accordance with a written prosecution opening that was dated 13 July 2017. I was told by your counsel, Mr Norton that this was an agreed statement of facts. The summary was marked as Exhibit A and there were some photographs that were marked as Exhibit B. They depict the injuries or some of them to the face/body of your victim. In the circumstances of the written summary being an agreed statement, I really see no need to describe the full factual setting in these, my reasons. I will incorporate that agreed document into my sentencing remarks and I will not go beyond those facts. Whatever may have been said on the plea about where your particular offending sits on the spectrum of offence seriousness, your counsel made plain enough his acceptance that this was serious enough offending and he was right. It is.
5 In the briefest of terms, on the day in question, being 18 March 2016, you entered the home of your immediate victim with the intention to assault him. You knew your victim, Mr Darren Achison, though there is no strong suggestion of any animosity or ill feeling in the lead up to your entry. The garage door had been left slightly ajar to permit his cat to come in and out of the house. You had been at your home. It was not that far away from Mr Achinson's, and at that home was your partner and Mr Achison’s partner. They had observed you become upset in the course of a phone call which you had received. It is not suggested that that call had anything to do with your victim or these events. You left the house and evidently, you drove to your victim’s house and entered via the roller door which had been left slightly ajar. You did not knock on the door. You did not ring the bell. The victim was caught completely unawares by your arrival into his property. He had no reason at all to expect your attendance or your attitude. This was all totally out of the blue as far as he was concerned. You approached him in his own house and the tenor of the meeting was set by your opening words when you said, “Have you got a problem with me, cunt?” Well he did not and told you as much, and you responded by punching him on the nose with a clenched fist. He dropped a plate that he was holding and as he walked away from you to get a tissue to staunch the nosebleed, you punched him to the back of the head and kicked him to the back and sent him flying to the ground, where you maintained the attack even as he lay on the ground, punching him more than once to the back of the head forcefully with your fist, and even kicking him repeatedly to the ribs as he lay face down on the floor. You proclaimed that you were an ice addict, that you had belted your mother and your sister and now it was his turn. You told him that if he called the police, you would kill him. That is charged as a common assault. At one point, you burst into tears and obtained a towel from the bathroom saying, “I’m a good bloke, I’ll look after you”. You then did otherwise, leaving and taking the garage remote control with you, hence Charge 4, theft. You returned home in your vehicle, and once there, you said to your partner, “I got him”. You said to Ms Achison’s partner, “Just leave. You don’t have to fucking thank me" and she left.
6 The matter was pretty much immediately reported to the police and you were interviewed a few days later on 22 March, and you did make some admissions. You could not sensibly explain why you did anything, but admitted that you were pretty drunk and ‘a lot of things were going on’. You mentioned in the interview the existence of some tension between you and Mr Achison, and also your knowledge of the deterioration in his relationship with his partner and that having some role in your attendance, but it is all vague in the extreme. So too are your present instructions vague. That is, instructions to your counsel, where you were advancing that your victim had been somewhat controlling of his partner, who was best friends of your partner, and you had got wind of that. Well what if he had? What if all of that was true? What would that have to do with you? Nor do I accept that he had or that you were some sensible judge of any of these things in the state that you were in. In any event, it is clear enough that you went there for a reason. Those are the reasons and hence, this was undoubtedly a confrontational burglary. Once at the premises, you did not ring on the bell or knock on the door, which is what anyone would do if they were going there to talk. You entered in the way that you did, and once inside, you certainly were not talking to your victim or taking him to task about what he had been doing. You raised his problem with you and then swiftly assaulted him following your entry to the premises.
7 For reasons that are not entirely clear to me, you chose to run a committal hearing and on 24 August 2016, your victim and his girlfriend were both called as witnesses at the committal and cross-examined at that hearing. It is a shame that they were. There is no pre-sentence detention and the plea was adjourned part heard from the 20 July as you had an MRI booked later in that week and you and your family were anxious that you attend that booking. I permitted that by extending your bail. You attended, but I am told it did not go ahead, and I remanded you in custody yesterday following the conclusion of the plea submissions.
8 The injury to your victim was not slight, as paragraphs [23] and [24] of the summary make plain. He was taken to hospital by ambulance. He was treated for a number of injuries, including a ruptured ear drum and some eye damage and swelling and bruising. As I say, there were photographs that at least depict the facial injuries.
Impact
9 Your victim has made a victim impact statement and I have read it again since the plea. Your crimes have significantly impacted upon him physically as well as emotionally and psychologically. He has had difficulty sleeping. He has had flashbacks ever since; he has a sense of loss of security. That is what happens with home invasions. That is what it brings about. He has been mentally scarred by your conduct and that is hardly surprising given the sudden unannounced trespass into his home and then the unprovoked nature of the physical attack upon him by you, a trespasser in his home. This was a frightening incident and one that has caused obvious and significant impact. You recognise that in your own letter, marked as part of Exhibit 1. I take the impact of your crimes upon your victim into account as I am required to.
Mitigation
10 Your counsel, Mr Norton, raised a number of matters in mitigation. What you will not have known is something I commented on yesterday. He had prepared written submissions of a high quality and then he backed that up with what was an excellent plea conducted over the two days of the hearing. He said everything that could be said on your behalf. He left no stone unturned. He relied upon:
· Your guilty plea;
· Your cooperation with the police;
· The presence of some remorse;
· Your disadvantaged background;
· He submitted that you had some prospects of rehabilitation as there was still family support, and though you had a past criminal history, you had not committed offences as serious as these before and had never been in custody before;
· He took me to a range of material showing that you have had some mental health issues over your life. However, he made clear that he was not relying upon any of principles from the case of Verdins v The Queen. He said they were not enlivened here;
· As to sentence, he made some submissions as to the aggravated burglary and the absence of some features of aggravation. Also, he sought to characterise the seriousness of the intentionally causing injury. But he did concede the seriousness of the offending and the inevitability of a term of imprisonment. He was arguing though, that you could be sentenced to a term of imprisonment with your future release secured by way of a community corrections order.
Prosecution
11 Ms Moran, who appeared on behalf of the Director, submitted that such an outcome was not open in the exercise of my sentencing discretion, given the need to pay sufficient regard to specific and general deterrence, as well as community protection. As to the offending, she argued that this was rightly to be described as a confrontational aggravated burglary, and one committed by a man who had been given chances on community based orders in the past. She submitted that the intentionally causing injury was totally out of the blue. She conceded that you obviously needed treatment, but you had not taken your chances in the past and that the plea in this matter was not an early one at all.
Guilty plea
12 I turn then to consider the submissions raised by your counsel on your behalf and move firstly to your guilty plea.
13 You have pleaded guilty and your counsel concedes it was not at the earliest stage. That is obviously the position as you chose to run a committal hearing. The matter only settled at the final directions hearing in this court in March of this year, with a trial date beckoning in May of this year. There are though many pleas that are a good deal later even than yours. The aggravated burglary, I understand, was the sticking point and you had offered to plead to some of the other conduct.
14 I take your guilty plea into account in mitigation of sentence, as I am obliged to. You have taken responsibility for your offending and that is what is important. I must give you credit for your decision to plead guilty. Witnesses have been spared the experience of coming at least to this court to give evidence. You are not to be penalised for running a committal. There were matters that you sought to explore and that was your right. But of course, I must take into account the stage of your guilty plea, and it was not an early one. The community though, has been saved the time, expense and effort associated with the conduct of a criminal trial up in this court. In these various ways, you have facilitated the course of justice. I must reward you for your decision to plead guilty and at the stage which you did. The fact is, enough people run silly trials. Enough people weigh up the odds and take their chances with a jury. You did not do that. You took your time about it, but ultimately, you pleaded guilty and that is what is important. I am required to pass a lesser sentence upon you than I would have imposed had you been found guilty by a jury. I also pay some regard to your level of co-operation with the authorities. You made some admissions to the police and you seem to have engaged with them appropriately and politely.
Remorse
15 As to remorse, you have ultimately taken responsibility for your crimes by pleading guilty. A guilty plea is usually, but not always, evidence of some remorse. There is material before me in your partner’s letter and your own letter, not to mention, some of the psychological material and the police interview that suggests that you have a measure of remorse here. I am prepared to find that you do have some remorse for these crimes that you have committed, and I take that into account in your favour.
Background
16 I have not even to this point in my reasons gone to your personal background and I see no great need to work my way through all I was told about itover the two days of the plea. That is because I accept the family background which has been placed before me. It was referred to by your counsel in the course of his oral submissions in quite some detail. It is also referred to in great detail in the report of Mr Newton and to a lesser extent, in some of the other reports and letters. Again, only in the very briefest of terms, you are 34 years of age. You never knew your father and for significant periods in your early years, you were placed into the care of your grandmother who was, on any view of it, a strict disciplinarian. That is an understatement actually. There was physical abuse. At one point, I am told, sexual abuse, but not at the hands of your grandmother. The family never had much money, so there was relative poverty. You were educated to mid-way through Year 11, but there had been many shifts of schools. In fact, you wound up supporting yourself and living in a caravan up in Alexandra as a 16 year old student. You held a number of jobs and started out in the workforce doing seasonal work. You wound up working in the tyre industry and did that for very many years, until a work accident in 2013 left you unfit for work. Your employment record since is described as sporadic or patchy, though you have quite recently got a job as a farmhand and have done well in that limited period.
17 I am asked by Mr Norton, your counsel, to take into account in mitigation your disadvantaged background and I will do so to the extent that that is allowed. There is a large amount of material placed before me dealing with the mental health issues that have plagued you over the years. They are not recent issues, with the suggestion of the first very much provisional diagnosis made at the astonishingly early age of ten years. These reasons will be quite long enough without my quoting from these materials or even setting out each report or letter filed on the plea. I have read all of that material in far greater detail than was open to me on the first day of the plea, when I had taken this matter out of the reserve list very late in the day. There have been a variety of tags or diagnostic labels applied to describe your presenting conditions over the years, though consensus seemingly is reached between Mr Newton and Mr Jackson, Mr Jackson being your treating psychologist, as to the existence of a borderline personality disorder. Mr Newton says you also have some of the traits of an anti-social personality disorder. There are references to other conditions including bi-polar disorder, a major depressive disorder (mild), a panic disorder and even post-traumatic stress disorder. Drugs and alcohol have been very major problems for you over very many years, though you really do not seem to recognise that adequately. You are really quite insightless in this area. You are on record as having recently told Mr Newton that you do not need treatment or counselling. You need both, and what you also need is complete abstinence. Alcohol and criminal law or police issues have gone hand in hand for you. You have also from time to time, not been compliant with prescribed medication. You have been told repeatedly to abstain from alcohol and drugs and yet you either will not or cannot. You have recently reconnected with your 11 year old son and that is obviously a positive in your life. You have the job I was told about, which again is a positive. You have family support. Your mother, partner and your two siblings and some friends were here yesterday and again today. Your mother and partner had been present on the first date.
18 I see no use in wading through all of those psychological materials in these, my reasons. I read it again. I do take it all into account. Your counsel has made plain that in no way are any of the principles from the Court of Appeal decision of Verdins engaged in this case. The fact is, you were seemingly intoxicated on the night in question and it has not been the first occasion of your acting inappropriately in such a setting, as Mr Newton attests. The material placed before me is still relevant. Of course it is. It gives me a sense of your background and you are the person I am sentencing. It gives me a sense of the problems that you have faced, and the long term nature of your struggles with alcohol and drugs, and why you might have resorted to those substances in the first place. The material spells out you mental health issues and the need for treatment. There is also some limited progress, but progress nonetheless, commented upon by Mr Jackson in his second report. You are, it seems to me, a fragile individual and one facing a first sentence of imprisonment. I take the various reports into account in the manner urged by Mr Norton. So too the letter of your partner, and she also has observed some gains that you have made. I also pay regard to your letter of apology. I was told of the existence of one outstanding matter. I disregard that matter. It is an assault matter, but in all the circumstances, I should have no regard to that as it is outstanding and it is not clear whether you are in fact admitting that conduct or not. One matter has occurred subsequently and you were dealt with by way of a fine for that assault. That was an assault that occurred on the day of your arrest and again, you were behaving in an unpredictable manner.
Prospects of Rehabilitation
19 I turn then to your prospects of rehabilitation. Your counsel argued that you were not without some prospects of rehabilitation. That is really as high as he could put it and he was right to be guarded in that way. The problem is, you have very limited insight into the treatment that you need. You need to abstain from drugs. You need to abstain from alcohol and unfortunately, you have believed that drugs and alcohol deal with your mental health issues. They do not. They make any of your problems more complex by far. You have admitted your guilt and I believe you do have some measure of remorse. The process of your being arrested and charged and then sentenced by this court would all play some role in deterring you from future offending. You have a history before the courts and of note is that you have been given a number of opportunities including at least three community corrections orders. You have breached two of them, and the one you completed expired only about seven months before this particular offending that I must deal with. You have had real difficulty maintaining any consistent engagement with treatment. I observe, as I have said earlier, that there are in fact, some positive signs spoken of in your partner’s letter and in the update report from Mr Jackson. I have commented already on the positive aspect of there being family support and the re-engagement with your son. Mr Newton’s report is probably less upbeat actually, and he had some concerns about your exaggeration of symptoms. But all and sundry, everyone who sees you in an expert area, note your need for treatment and counselling and abstinence. There is nothing new there. You have been told that for years. It is hard not to be guarded as to your future prospects and risks, but I am certainly prepared to find, as your counsel suggests I should, that you do have some prospects of rehabilitation. If you continue to abuse alcohol and drugs, you have no realistic prospects of rehabilitation at all.
Gravity
20 As to the offences themselves, your counsel conceded that this was serious offending and that it was deserving of an immediate term of imprisonment. He was though, arguing for a prison sentence combined with a community corrections order.
21 I accept that the aggravated burglary is not nearly as serious as some for the reasons advanced in the written outline and in argument before me. Those written submissions follow the manner of assessing gravity as spelt out in a number of cases, including the case of Meyers (2012) 44 VR and Bowden [2016] VSCA 283. Amongst other things, there was no weapon. There was no disguise. This was not a joint activity with others and it was relatively brief, with no damage caused in the entry. It was not in the wee hours of the morning, your victim knew you, and there was very little pre-planning. It is for these reasons not to be assessed as falling at the high end of the range of offence seriousness. Make no mistake though, it was still serious enough. You were obviously targeting your victim. You had driven there and chosen to enter his home in the manner that you did, and you did that with the intention of assaulting him. There was obviously some forethought. As I say, you appeared without notice at all, as you had not signalled your arrival by knocking on the door. It was by no means a trifling example of the offence. It was certainly not one falling at the lowest level. It was a confrontational aggravated burglary, committed upon a residential property, without any semblance of justification, even for any attendance at the front door on the night in question, much less the entry that you executed.
22 It is an inherently serious offence to enter another person’s house as a trespasser. You invaded this man's home. You entered when you were not welcome and you did so intending to assault. There was nothing spontaneous here, in the sense that some aggravated burglaries spill over from some lawful attendance at a property, with heightened emotion getting the better of the offender and prompting the entry with the required intent. That is not what happened here. You have driven from one address to another to enter those premises as a trespasser. That is exactly what you then did, and you did it intending to assault this man for some obscure reasons at best. It is true that there is no suggestion of any deep planning here.
23 Now, not every aggravated burglary leads on to actual violence being inflicted. This one led on to violence. Once inside the house, your opening words spelt out your hostile intention, when you challenged your victim, who was standing in his own home with his dinner in his hands, and you challenged him as to whether he had a problem with you. It was less polite than I have worded it. You have then assaulted your victim, not with a single blow, nor in the setting of a fight. The attack was a sustained one in that there were a number of blows delivered to a non-combatant in his own home. Punching him, kicking him sending him to the ground and then maintaining the attack even as he lay defenceless on the ground. I do not know what was in your mind, but you intended to injure him and you did. You were punching him to the back of the head and kicking him as he was on the ground, in his own house. It was extraordinary violence. It produced actual injuries, which required treatment at hospital. Your counsel argued it was a mid-level, as he put it, instance of the crime of intentionally causing injury. I note the median sentence in the sentencing snapshot for intentionally causing injury is 18 months, with the most common sentence spanning one to two years.
24 After the intentionally causing injury, you then threatened him to deter him from ringing the police, and you then stole the remote control, which is obviously the least serious of the offences.
25 Virtually every aggravated burglary that comes before the court has, at its foundation, when one thinks about it, some motivation that has driven the illegal entry into another person’s home. with either an intention to assault or to steal or an intention to damage property. It might be a grievance. Sometimes it is a debt. Often enough, it is jealousy in the setting of a relationship breakdown, but that is not the position here. Generally though, a court can at least have some insight into, or ability to understand the factors operating on the mind of the accused, which prompted the trespass. Here, you entered with an intention to assault. But why? It is almost unfathomable. You cannot sensibly explain it and yet, you are the man who entered and then assaulted an associate that you describe in your letter as a friend. In your interview, as I said earlier in these reasons, you hint at people not being happy with him, including his partner, who was at your house, and your attendance having something to do with that deteriorating relationship. You described some tension between you and he. Yesterday, as I said, I was told on your instructions as to the way you believed he was controlling his partner. So what? What is any of that to you? It is all pretty vague and would not even come close to justifying you driving to see him to talk about the issue, much less entering in the way that you did with the intent to assault and then, having gained entry, assaulting him in the manner which you did. Offences such as aggravated burglary, they have a tendency to interfere with a person’s sense of safety within their own home, a point which, I am afraid, is ably illustrated by the impact statement of your own victim.
Purposes
26 I have to consider a number of purposes of sentencing. They are not limited only to your prospects of rehabilitation. If they were so limited, then sentencing would be a good deal easier. Your prospects of rehabilitation are still an important consideration, but I am also required to impose a just and a proportionate sentence in relation to your offending. I must denounce your conduct and I do. It was seriously wrong and you should be ashamed of it. I think you probably are from the looks of your letter.
27 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 must give that principle, that is, the principle of specific deterrence some weight in my sentencing task, given the nature of your offending. I am worried by your lack of insight as to your treatment needs as disclosed in the report of Mr Newton. Specific deterrence is still a significant enough matter operating here.
28 I need to make clear that your use of alcohol is not relied upon in any mitigatory fashion here by your counsel. It is not an excuse. It does not operate as an excuse. It may be the context, but it does not excuse your conduct. Nor though, do I conclude against you, that it is an aggravating feature in the sense of your having been placed on notice in the past as to the likely problems caused if you over indulge. You have been told to desist. You have been told abstain, and you have been told why that is important. But I certainly will not find the existence of a matter of aggravation against you arising from any of those matters.
29 I have to consider the need to protect the community from you and of course that must be given some weight here, given the nature of the offending.
30 There is a principle that us lawyers refers to as general deterrence, and that is a significant purpose of sentencing in this sort of case.
31 This court must send a clear message to other individuals in the community, to people who might be minded to commit this sort of serious entry into another person’s premises. Such conduct will not be tolerated by the courts and will almost inevitably be met with a sizeable term of imprisonment. That message must be conveyed by the sentences imposed by the courts. That is because of the serious nature of aggravated burglary. That is a fact that has been spelt out repeatedly by our Court of Appeal.
32 I must, and I do, pay regard to current sentencing practices. I have considered the Sentencing Advisory Council’s snapshots in relation to the offences of aggravated burglary and intentionally causing injury. I was taken by Mr Norton to some other instances of aggravated burglary, summarised in the Judicial College of Victoria's Sentencing Manual. That is at 32.14.4.3. Those cases were Kerapa, Raoof, Flood and Debono. I was not that enthusiastic as to that phase of the plea, as what I learnt is what I knew already. That there are other judges who have sentenced other offenders to others outcomes for other crimes committed on other occasions. Those other sentences were not the sole correct sentence available in those other cases and there were a host of differences, including such things as youth or strong Verdins considerations in some of the cases I was taken to.
33 It is obvious enough that statistical material has inherent limitations. Reference was also made by Mr Norton to the case of Hogarth. Well, that is a case which has some very useful guidance in relation to the crime of aggravated burglary, as well as a large table of cases. That case, and decisions since, including the case of Whiteford make clear how seriously confrontational aggravated burglaries are to be viewed by the court. See also the case of Filiz. Now, most but not all of these cases predate the decision in the Court of Appeal in Boulton.
34 Your crime was undoubtedly a form of confrontational aggravated burglary, but not in an intimate partner setting. I do not suggest it is anywhere near as serious as the facts in Hogarth, and that was the point Mr Norton was making. I did not need to be taken to Hogarth to appreciate that fact. I was the judge who passed sentence in the case of Hogarth. By the way, the ultimate sentencing outcome in the Court of Appeal in Hogarth would bear no resemblance to the type of sentence required post Hogarth for that very same sort of aggravated burglary committed by one with his antecedence. It should not be forgotten that that case of Hogarth involved the Court of Appeal saying a fair bit then about the inadequate current sentencing practices for confrontational aggravated burglaries.
35 Other cases are not precedents. Outcomes in other cases do not require me then to engage in some arithmetical process of subtracting or adding to take into account individual differences of offence or offender that are favourable or unfavourable when compared to other cases. That is not how a court reaches a sentence. Indeed, it is exactly what I must not do. I know what sentencing practices are. I know as a judge that I need to pay regard to current sentencing practices. Where does any of this trawling through other cases get me? The answer is, no closer to the ultimate disposition required in this case.
Boulton/combined disposition
36 Your counsel conceded that there was a need for a term of imprisonment here, but was arguing that your eventual release could be provided for by way of release on a community corrections order. The Director of Public Prosecutions challenged that contention.
37 I have to exercise my own sentencing discretion. I do not ignore either of the arguments placed before me, but I have to reach my own view as to what is appropriate in this case.
38 The Court of Appeal in a case of Basic delivered in May of last year, expressed the view that community corrections order dispositions were plainly not having their desired effect. They went on to suggest that in their view, the disposition was being misused, even misunderstood by judges who were passing, if not 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, suspicious number actually, where prison sentences falling just below the then maximum two years were imposed, simply to allow combination type order to be selected.
39 The Bench in that case suggested that this approach distorted the whole sentencing process, that it was not the way that sentencing was meant to take place, and that this the process had distracted from a true consideration of the gravity of the offending coming before the courts. They observed that, it had in their view, led to artificial or compressed prison sentences being imposed to allow a community corrections order to be imposed in combination with a prison term.
40 The Court of Appeal in that decision urged action to be taken by Parliament. Well, whether in response to those words or not, it is impossible for me to know, but earlier this year, Parliament legislated to restrict the availability of a community corrections order disposition. Some of those amendments do not apply to my task, but some do, including those which limit such an order being made in combination with a prison sentence where the prison term to be served into the future is greater than 12 months. See s.44(1) of the Sentencing Act as amended by the Sentencing (Community Corrections Order) and Other Acts Amendment Act 2016. You have one day of PSD, so to engage in a combined order, I must sentence you to less than 12 months' imprisonment.
41 Section 5(4C) of the Sentencing Act prohibits the imposition of a sentence of confinement, unless the court concludes that the purposes of sentence cannot be achieved by a community corrections order to which specified conditions are attached. That is plain enough to me. It always has been. Prison has always, after all, been a disposition of last resort.
42 Your counsel I think sensibly was not suggesting that it was possible for you to avoid imprisonment here, but he was arguing that your eventual release from prison, whenever that was, could be on a community corrections order.
43 It is obvious that not every offender for every crime can or should be admitted to a community corrections 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.
44 I have no doubt at all that your offending demands that you serve a substantial term of imprisonment.
45 There is no alternative at all, other than to impose a term of actual imprisonment upon you. In the circumstances, I do not believe it is open to admit you to a community corrections order 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.
46 Well, sitting up here as a judge, one can almost always see some advantages of a community corrections order or release on a community corrections order, especially for those such as you who obviously need prolonged and active treatment. We as Judges, understand the limitations upon treatment that exist in a prison setting, and I need no reminding of the fact that prison is a harsh environment and it can disrupt or even set back rehabilitation or gains that have already been made. However, it is not my job to fix upon a disposition which has some advantages and then contrive or invent some path to reach that sentencing outcome, along the way paying no or scant regard to sentencing purposes or principles. As a Judge, I must pass appropriate sentences, and doing that in this case, renders the suggested disposition an impossibility to achieve. I will pass appropriate sentences. I will make orders for partial cumulation. Then I will fix a non‑parole period in your case.
47 The Adult Parole Board then will be in a position to assess your needs at around the time of your becoming eligible for release on parole, which is quite some distance away I am afraid. Whether you will be released on parole is not a matter that I am allowed to consider. I have no power at all over the Adult Parole Board.
48 Indeed, I am not permitted to take their possible future action into account in any shape or form. What I must do is proceed on the basis that you will serve every day of the head sentence which I will soon pronounce. I take into account the various matter raised in mitigation by your counsel in the selection of the individual sentences, the extent of cumulation and the length of the non-parole period which I will fix in this case.
Totality
49 I must pay regard to the principle of totality of sentence and I do. I must ensure that the sentence imposed is commensurate with your overall criminality. I have taken a last look to ensure that it does not involve a crushing outcome upon you. I have to that end, moderated the level of cumulation, but there must be some appreciable cumulation as between the aggravated burglary and the intentionally causing injury sentences. The intentionally causing injury is as your counsel concedes, not some minor example of that offence. Far from it. It occurred following the aggravated burglary, and as I have said, not every aggravated burglary then leads on to actual physical violence. This one did, and the violence was as against a non-combatant. It was totally unprovoked and unexpected. It was pretty extraordinary and was not constituted by a single punch. It had its own impact, over and above the impact of the home invasion
SENTENCE
50 I will have you remain seated, I think, Mr Russell.
51 On Charge 1, aggravated burglary, you are convicted and sentenced to two years and three months' imprisonment.
52 That is the base sentence.
53
On Charge 2, intentionally causing injury, you are convicted and sentenced to
18 months imprisonment.
54 On Charge 3, I convict and sentenced you to four months imprisonment and on the theft charge, I convict and sentence you to seven days' imprisonment.
55 Cumulation
56 I direct that six months of the sentence imposed on Charge 2 and one month of the sentence impose on Charge 3 are to be served cumulatively upon the base sentence and upon each other. The sentence on the theft will be served concurrently with these sentences. What this produces then is a total effective sentence of 34 months or two years and ten months' imprisonment.
NPP
57 I fix a period of 18 months during which you will not be eligible for release on parole.
Section 6AAA
58 But for your guilty plea, I would have imposed a greater sentence. Had you been found guilty of these offences following a trial, I would have convicted and sentenced you to four and a half years’ imprisonment. I would have fixed a non-parole period of three years. That statement made under s.6AAA is to be entered in the records of the court.
59 Mr Jassar, Mr Moodie, are there any matters I have overlooked in terms of - - -
60 MR JASSAR: Yes, Your Honour. There is a pre-sentence detention of one day.
Section 18 – PSD
61 HIS HONOUR: You are right. Yes, thank you. There is that one day. Yes, all right. You have spent one day in custody by way of pre-sentence detention following my remand of you into custody yesterday afternoon. I declare that you have spent one day by way of pre-sentence detention. You have served that one day already and that declaration will be noted in the records of the court. Are there any other matters at all?
62 MR JASSAR: No sir. As the court please.
63 MR MOODIE: No, Your Honour.
64 HIS HONOUR: Mr Moodie, I have made some custody management directions yesterday and forwarded what I had to forward and said what I had to say yesterday in terms of the endorsement of the order, I think, yesterday. Let me just check that. Have you got the order from yesterday? So, I have noted yesterday, "It was his first time in custody. Please take all care. He has some mental health issues. Please read the reports from Mr Ben Jackson and the MyClinic, Tarneit document." So, that is what I did yesterday. Mr Norton said that it would be his practice, maybe it was yours, I do not know, to send all of the relevant material to sentence management. Anyway, is there a need for me to make any further custody management directions at all or not?
65 MR MOODIE: No, Your Honour.
66 HIS HONOUR: All right. Are you going to go down and see your client downstairs?
67 MR MOODIE: Yes.
68 HIS HONOUR: This is a new experience for him and an unpleasant one at that, and no doubt, also for his family. They will be all at sea in terms of how to get in to see him and visit and these sorts of things. Will you take them through those sorts of processes?
69 MR MOODIE: Yes, Your Honour.
70 HIS HONOUR: Yes, all right. Thanks very much and I will have then Mr Russell removed now please. Thank you. Yes, all right. Look, I have signed that order. Look, I will leave the Bench for the moment and you can all head off, Mr Jassar and Mr Moodie. I have got a part heard appeal that is listed about 20 minutes ago, but I will just got down and get my materials, read the report and I will then come back onto the Bench. So, I will just go downstairs. Yes, thank you.
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