Director of Public Prosecutions v Sanchez
[2015] VCC 907
•26 June 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case Nos. CR-13-01774 and CR-13-01775
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANTONIO SANCHEZ |
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JUDGE: | HIS HONOUR JUDGE HOWARD | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 31 October and 5 November 2014, 26 June 2015 | |
DATE OF SENTENCE: | 26 June 2015 | |
CASE MAY BE CITED AS: | DPP v Sanchez | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 907 | |
REASONS FOR SENTENCE
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Catchwords: CRIMINL LAW – Sentence – pleas of guilty to theft, stalking and possession of an imitation firearm whilst a prohibited person – associated summary charges – serious example of stalking a former de facto partner – serious victim impact – prior offending concerning the same victim – TES 2 years with minimum of 18 months
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr S Ginsbourg (Plea) Ms J Fellar (Sentence) | Office of Public Prosecutions |
| For the Offender | Mr P Kounnas | Turnbull Lawyers |
HIS HONOUR:
1 Antonio Sanchez, you have pleaded guilty to charges of theft (charge 1), stalking (charge 2), and possessing an imitation firearm whilst being a prohibited person (charge 3). The maximum penalty on each offence is 10 years’ imprisonment. You have also pleaded guilty to two summary offences of being unlawfully on premises (summary charge 7), for which the maximum is six months’ imprisonment, and assault (summary charge 8), for which the maximum penalty is two years’ imprisonment. I must now sentence you on behalf of the community.
Background and context to offending
2 Before turning to the circumstances of your offending, I will deal with some background and contextual matters. In 2003 you were 24. Your marriage had broken up after 3 years and one child. You commenced a de facto relationship with the principal victim who was then 27 (I shall call her the victim). From that relationship there are two children, a son now aged ten, and a daughter, nine. You finally separated in July 2011, after what your counsel described as an “entirely toxic” relationship with antagonism and poor behaviour on both sides. You and the victim had been running a successful cleaning business, employing a number of staff, with a gross turnover of $300,000 per annum.
3 In August 2005, you were found guilty of theft and obtaining property by deception, and placed on a good-behaviour bond for two years, which you kept. On 17 February 2009, the victim left you and took the two children to her parents’ house. You went there and tried to force your way in, damaging a window shutter in the process. A couple of days later a family violence safety notice was issued, which you breached. The next day an intervention order was granted by consent, which you breached by having prohibited contact with the victim within 48 hours. At this time you were a licensed shooter and the owner of a firearm which the victim found unsecured in your vehicle; hence, you failed to store the weapon correctly. On 9 August 2010, you were found guilty of all of these matters and released without conviction on a good-behaviour bond for 12 months, which you kept.
4 The relationship recommenced but about six weeks after the second bond expired, you again committed offences against the victim. On 22 September 2011, you stalked her and engaged in conduct endangering serious injury to her. Briefly stated, you followed the victim to a medical practice, then refused to get out of her car unless she agreed to talk to you. Eventually she drove off, you followed in your own vehicle and swerved into her car trying to run her off the road. At one stage she stopped and got out when you pushed her into her car door and then got into her car with her before she could drive off. When you realised she was heading to a police station you grabbed the steering wheel and tried to forcibly turn her car into an embankment. At one stage she fled to her brother’s home. When he tried to stop you from entering the house, you recklessly caused injury to him by punching him in the mouth, causing a swollen lip, and assaulted him by bruising the inside of his arm.
5 These matters were dealt with on 9 January 2012, along with a charge of driving in a manner dangerous. On the offences against the victim you were sentenced to an aggregate six months’ imprisonment, which sentence was wholly suspended for 12 months, to expire on 8 January 2013. On the assault matters and the driving offence you were convicted and released on a community-based order for 12 months to perform unpaid community work and undergo assessment and treatment for alcohol and drug addiction and mental health issues. On a charge of stating a false name when requested by police you were convicted and fined. Apparently you had been held in custody for some time pending the court hearing, which no doubt was taken into account.
6 At the same hearing an indefinite family violence order was made which, among other things, prevented you from being within five metres of the victim or within 200 metres of her home or workplace.
Circumstances of offending
7 I will turn now to the circumstances of your offending. A comprehensive agreed prosecution opening was read out at the plea hearing. A summary will suffice. On 21 August 2012, with another man, you drove to the victim’s parents’ home where she was living with your two children. You entered the house and stole a quantity of jewellery, a driver’s licence, a keycard and a PlayStation belonging to the victim’s parents and brother (charge 1). When you left the house you took a vehicle parked outside, which was jointly owned by you and the victim. The car was found a week later and returned to her. You are not to be punished regarding this car.
8 The stalking offence (charge 2) involved seven incidents concerning the victim which took place between 20 September 2012 and 9 January 2013.
(a)First, on 20 September 2012 at about 7am you forced entry into the victim’s home. You went into her bedroom where she was sleeping and stood at the foot of her bed. When she awoke you accused her of being in a sexual relationship with her mechanic. She told you to leave, which you did, but only after about 15 minutes.
(b)Secondly, on 28 September 2012 at about 10.20pm you returned to the victim’s house and tried to force your way in through a window, claiming you wanted to speak about the children. The victim told you to leave. Then you tried to climb in through another window when the victim screamed to her parents, who called police. The victim’s father chased you down the street and you got away before the police arrived.
(c)Thirdly, on 11 October 2012 at about 9.30pm you followed the victim while she was a passenger in the same car you had taken on 21 August. Her brother was driving. You drove recklessly close to the car and at a set of lights you went up to victim, swearing and asking if she was happy driving your car. The brother drove to a local police station. Undeterred, you followed them there, when you arrived you walked around the victim’s car, ranting and raving, before driving off. The matter was reported to police. The victim was very frightened during the whole episode.
(d)The fourth incident occurred on 23 October 2012 when the victim was picking up the two children from school. As she was driving home you pulled up next to her vehicle, riding a motorbike. In fear she drove to her grandmother’s home, where she knew her parents were. You followed her there. You were told to leave by the victim and her father. You said she had taken everything from you; that you wanted to talk about the kids and the house. The children were scared. After a while you left.
(e)Fifth, on 7 November 2012 at 1.20pm you followed the victim to premises where she was working as a domestic cleaner. The children were with her. When she saw you through the front door she hid with the children. You forced open a roller-door, went into the garage and turned the mains power off and on for a few seconds. The police were called, but you had left before they arrived.
(f)Sixth, on 12 November 2012 at 3.25pm you telephoned the victim. She told you to stay away from her, and hung up. Over the next hour you called her a further 24 times.
(g)The final seventh incident occurred on 9 January 2013 at about 5.30pm when you saw the victim’s car outside a house in Narre Warren South. This was the day after the suspended sentence and CBO expired. You knocked on the door; it was opened by a male occupant who deflected your request to see the victim. You then went to another nearby house where the victim was visiting friends. You said you wanted to speak to her, but the friends told you that she did not want to see you, so you left.
9 This brings me to the third charge and summary matters. On the morning of 23 December 2012 you went to premises in Oakleigh where the victim’s sisters lived. The occupants were away camping. You forced your way into the premises (summary charge 7) and ransacked a bedroom. The brother-in‑law of one of the occupants arrived to water the garden. He heard noise from inside the house. He saw you emerging from the side of the house and immediately recognised you. He asked you what you were doing there. You pushed him on the chest and told him he should not be there. He pushed you back, and said the same to you. He started calling the police on his mobile phone, but you slapped it out of his hand. You then stood close to him and said you had been to jail, and that if he got involved or made a statement you, or people you knew from jail, would come after him. You then said that you had a gun, and produced what appeared to be a small black gun from behind your back, which you pointed at his waist (summary charge 8 - it turned out to be an imitation pistol cigarette lighter later found by police at your home). You kept saying to this man that the victim owed you $80,000 and that if she was not the mother of your children she would be dead for what she had done to you. Eventually you left.
10 Because of the intervention order made against you in January 2012, you were a prohibited person under the Control of Weapons Act 1990 (charge 3).
11 Hence, your offending occurred, but for the final stalking incident, whilst you were on the suspended sentence and CBO, and in part whilst on bail, and the stalking offence breached the intervention order.
Police and court process
12 I will mention some of the police and court process. On 25 October 2012 you were arrested concerning the theft of items from the victim’s parents’ house on 21 August 2012. You denied the offending in an interview and were released pending summons. Undeterred by that police intervention, you then engaged in the third to the sixth stalking incidents.
13 On 14 November 2012 you were arrested for the second time. In a police interview you denied any knowledge or involvement in the first to the fourth and the sixth stalking incidents and you gave a false account regarding the fifth, claiming that you attended the premises without knowing the victim was present, when in fact you had followed her there. You were charged with charges 1 and 2, and with multiple breaches of the intervention order, which, of course, was then on foot. Bail was refused, and you were remanded in custody. However, on 12 December 2012 you were bailed in the Magistrates’ Court on very strict conditions, including that you have no contact with the victim other than through a lawyer for the purposes of family law proceedings.
14 Just 11 days later, on 23 December, you committed the offence in charge 3 and the summary charges. Then, on 9 January 2013, you engaged in the seventh incident of stalking conduct. On 10 January 2013 you were arrested for the third time, and in a police interview denied knowing anything about the offences on 23 December 2012 and that of the day before. You were charged again. Bail was refused, and you were held in custody. Applications for bail in the Magistrates’ Court were refused on 25 February and 14 June 2013.
15 On 17 September 2013 you conducted a contested committal, mainly concerning the August and December 2012 matters. However, you offered to plead guilty to the stalking charge, and the victim was spared the necessity of giving evidence. Hence, you entered an early plea on charge 2 but not on the other matters, for which you were sent to trial. You filed a false alibi notice for the offending on 23 December 2012, claiming to have been reporting to police on bail at the time of offending.
16 On 13 December 2013 you were granted bail in the Supreme Court. The conditions were onerous. Among other matters you were required to report daily, live with your mother, comply with a curfew between 9pm and 5am and not to have any contact with the victim other than through a legal practitioner for the purposes of family law proceedings. You were also required to engage in weekly counselling sessions with psychologist Dr G Asher. I shall mention your contact with him shortly.
17 Your trial was due to commence on 8 September 2014 but the matter settled at the door of the court and you pleaded guilty to the remaining charges and summary matters. You have now served 370 days pre-sentence detention up to, but not including, today.
Victim impact
18 I have received a victim impact statement declared by the victim on 30 October 2014. She speaks of the deep emotional impact of your crimes upon her. She and the children became and remained hyper-vigilant about their safety, which dictated most of their life and activities. Obviously the victim was concerned you might appear at any time to torment her. She has suffered sleeplessness, nightmares, uncertainty, and has become socially and emotionally isolated. She has lost trust in others, and has suffered anxiety attacks, exhaustion and depression. The children became anxious and fearful, and required counselling to deal with their concern about so‑called “robbers” who might come to their house. The victim has experienced hair loss, flare-ups of Crohn’s disease, particularly associated with scheduled court dates, which led to extreme pain in the hands and ankles requiring bed rest. She says that she was almost hospitalised, as she was extremely weak and in constant pain. Sadly, she concludes her statement by saying “I don’t think I could ever really convey completely the impact this whole experience has left on me and my children as it has been extremely traumatic. What we would like is to be left alone in peace, and be able to move on from it all and live our lives without worry.”
19 Clearly, there has been deep and enduring victim impact. An important part of the social rehabilitation of the victim is the appropriate acknowledgment by the court of the effects of your conduct upon her and your two children. You should feel a great deal of shame and remorse for what you did to those people.
Background and personal circumstances
20 I shall turn to your background and personal circumstances, some of which I have already outlined. You are now 35. You were born and raised in Chile, the youngest of six children. You describe a happy childhood. In 1987, when you were eight, your mother immigrated to Australia with you and your siblings for “a better life”. Your father stayed behind in Chile, but sadly died of cancer the same year. You have a very close relationship with your siblings and mother, with whom you presently live.
21 Your mother worked hard as a cleaner and you were the beneficiary of a private school education. Having completed Year 12, you completed a Diploma in Business Management over two years. Between 2003 and 2011 you ran a successful cleaning business, as I have already noted. You blame the downturn of the business on the breakdown of your relationship with the victim, who continues to run the business.
22 Between 1999 and 2003 you were married; there is a daughter now aged 14, with whom you have a close relationship. This is confirmed in a letter received from your ex‑wife, with whom you have maintained a good relationship. She says you are an excellent father and great role model and that over 19 years she has never felt scared or frightened of you.
23 I have already described some aspects of your problematic relationship with the victim and your pursuit of her after the relationship finally finished in 2011. You have not seen your other two children since that time, and wish ultimately to apply to have contact with them through the Family Court. It would appear there was fault on both sides, but nothing that could justify your criminal conduct. Your counsel was unable to say why, if the relationship was so bad, you still wanted to see and pursue the victim.
24 The psychologist, Dr Asher, saw you in May 2013 in anticipation of a bail application. You provided a rambling self-serving account of the relationship difficulties and your previous offending, including that you and the victim had been ignoring the intervention order which was in place. Your account of the present offending was, in part, contradicted by the agreed Crown summary. The psychologist recommended that you undergo weekly counselling and said that you appeared to be an insightful person who was likely to improve.[1]
[1]There was a missing page from the expert’s report, which the defence was not able to provide.
25 Since December 2013, when you were granted bail, there has been a degree of maturation and rehabilitation on your part. There has been no further offending of any kind, nor any contact with the victim. You have been working well with your brother, and more recently have obtained employment as a vacuum cleaning salesman. You began a new relationship in October 2014 with a young lady who supports you in your current predicament. You have had positive contact with family members.
26 Another report from Dr Asher dated 13 September 2014 indicates that, as required, you did engage in a number of counselling sessions following your release on bail in December 2013. You were said to have been suffering from a major depressive disorder during the period you were in therapy, having reported a difficult period in custody and the failure of your lucrative cleaning business. You reported significant emotional distress at not being able to see your children. However, I note that the psychologist said that your psychological state was unable to be tested, and that your state of mental health at that time could not be categorically diagnosed, apparently because you had ceased attending the practitioner because you could not afford the counselling. Nevertheless, the psychologist said that you were likely to need ongoing psychological care and possibly medication if your depression worsened. You are not on any medication at the moment.
27 At the plea hearing in early November last year there were a number of unsatisfactory aspects and loose ends. I called for a pre-sentence report. Regrettably, there was a lengthy delay until that was provided last February. Since that time there has been further delay in passing sentence not of your making. The Forensicare report is from Dr K Morton, a consultant psychiatrist, dated 13 February 2015. She said there were a number of inconsistencies between your accounts to her and Dr Asher, and assessed you as an unreliable historian. For instance, you initially denied your criminal history, but when it became apparent the psychiatrist had seen your record you acknowledged the charges but minimised what these were, and continued to provide an inconsistent history. She said that although your unfaithful behaviour had led to the end of your relationship with the victim, you were still feeling wronged by what you considered to be an unreasonable financial settlement between you. You acknowledged prominent anger at your ex‑partner, which you identified as a sense of being “hurt”. Significantly, you described marked distress in response to the losses associated with the relationship breakdown and an ongoing sense of wanting redress for these losses. The expert’s assessment was inconsistent with that provided by Dr Asher and, according to Dr Morton, the history provided by you “minimised all difficulties in his life other than those which he perceives to be caused by the victim. The availability of objective collateral history is limited to his criminal record, which suggests longitudinal difficulties conforming to social norms, and with deceitfulness.”
28 The psychiatrist said you were not suffering any psychiatric illness. She had concerns that your behaviour as an adult has been consistent with at least some Anti-social Personality Traits, although she was unable to conclude that you meet the diagnostic criteria for that disorder. Significantly, Dr Morton does not believe that you were experiencing any sort of psychiatric illness at the time of the offending, nor does she believe that the Verdins principles are relevant to sentence. Indeed, no submission was made that they were. The expert considers you would benefit from ongoing psychological counselling so that you may better manage your anger. Of concern, she states that any initiation of Family Court proceedings to gain access to your children will be associated with a significant risk of reoffending. Your counsel said today when given the opportunity that there is nothing in the Forensicare report which warrants specific response from you.
Mitigating circumstances
29 There are a number of mitigating circumstances. You come from a good family background. You achieved well academically, and established a very successful business enterprise characterised by hard work and endeavour. You have no drug or alcohol issues. You have complied with lengthy and onerous bail conditions including daily reporting and a curfew. Whilst on bail there has been a marked degree of maturation and rehabilitation, including the establishment and maintenance of a positive new relationship. Importantly, you have had no contact whatsoever with the victim and have avoided any further offending, particularly concerning her or her family and friends. I accept you are a devoted father and carer of your 14‑year old daughter. You profess to have a genuine love and affection for the other two children and have been troubled greatly by their absence since the relationship with their mother concluded. You benefit from the support of your close family. You support your mother with her health difficulties, including chronic arthritis. In the meantime, there has been delay in the passing of sentence, not of your making, which is all the more significant given your rehabilitative achievements. Finally, you have pleaded guilty to all charges, which has saved time, cost and inconvenience to the community and is of utilitarian benefit. For that alone, there should be a significant discount in penalty. You entered an early plea on the stalking charge, which avoided the victim having to give evidence in any proceedings.
30 In spite of all this, although you are not without prospects for rehabilitation, I must remain cautious and guarded as to those prospects especially given your criminal history as it relates to the victim; the lengthy period over which you committed these offences; the fact that you offended whilst on the suspended sentence and the community-based order (other than for the last stalking incident), and whilst you were on bail (for charge 3, the summary offences and the last stalking incident). Additionally, the recent Forensicare report indicates you still harbour an ongoing grievance of wanting redress for your perceived losses arising from the relationship breakdown. I am unable to conclude you are remorseful for, or that you have any meaningful insight into, your offending conduct. And I note the psychiatrist’s opinion that there will be a significant risk of reoffending if, as you propose, you initiate Family Court proceedings to gain access to the children, as this will bring you back into contact with the victim, whom you still feel anger towards.
Other sentencing considerations
31 There are, of course, other important sentencing considerations. There are significant maximum penalties provided for each of the indictable charges. General deterrence is of paramount importance in a case of this kind, especially where the offender is motivated by a financial and emotional grievance concerning a former spouse or partner. In effect, you waged a war of attrition against the victim, and at times it involved her family or others connected to her. You failed to control the anger you felt upon the relationship breakdown, and were quite unwilling to accept the autonomy, indeed, the human right which the victim had to terminate her relationship with you. Your conduct demonstrates the disturbing social evil of such family violence, which I strongly denounce on behalf of the community.
32 But for the last stalking incident you committed these offences whilst on and in breach of a suspended sentence and community-based order, and in part whilst on bail. And you repeatedly breached the intervention order that was in place throughout for the protection of the victim. You thumbed your nose at these court orders. These matters are all aggravating features.
33 Contrary to your counsel’s odd submission, specific deterrence is also a matter of great importance, unusually so in these circumstances.[2] Your criminal history demonstrates that there have been two previous occasions in 2009 and 2011 when you offended against the same victim and you have a prior conviction for stalking her and breaching intervention orders designed to protect her. You are not to be punished again for that prior offending, but it demonstrates why the victim was a vulnerable person, which explains, in part, the seriousness of the stalking offence in charge 2.[3]
[2]Cf. Duncan v The Queen [2011] VSCA 351, [28], per Bongiorno JA, with whom Whelan AJA agreed.
[3]Duncan, [24], per Bongiorno JA.
34 In addition, your offending was protracted, as it took place over nearly five months. The stalking incidents themselves occurred over three months. I accept that you were not actually physically violent with the victim. But you were with others connected to her. The assault of the male in December 2012 and the pointing of the imitation weapon at him associated with vile threats was serious conduct, especially as you were then a prohibited person. The fact the weapon was an imitation was presumably not known to that victim and it must have been a most traumatic experience for him. You have prior convictions for violence. You are not to be sentenced for burglary concerning charge 1, but the theft occurred after you had unlawfully entered the premises and it was knowingly directed towards the victim’s family.
35 As the prosecution submitted, you forced yourself into every aspect of the victim’s life following the breakdown of the relationship. Your conduct adversely impacted, for example, her ability to socialise in a normal way, when you sought her out at a friend’s house on 9 January 2013; it interfered with her ability to work, when on 7 November 2012 you came to the house she was cleaning; it interfered with her ability to travel in a motor vehicle, when on 11 and 23 November 2012 you chased her in her car or compromised her ability as a mother to pick up the children at school; and it even interfered with her ability to answer her phone, when on 12 November 2012 you called her 25 times in an hour. All of this and the other offending occurred deliberately and knowingly on your part, and some of it occurred in the presence of and to the detriment of your own two children, whom you profess to love and care for deeply. When confronted by police you denied you offending. Yet you clearly knew, indeed you were motivated by and intended that, such intrusion would cause the victim significant psychological harm, fear and distress. It is clear from the victim impact statement that you achieved that result. Your moral culpability is very high indeed. The stalking charge is a serious example of a serious offence. It was reprehensible conduct characterised by significant objective gravity.
36 Your counsel submitted that, notwithstanding the seriousness of your offending, you should be sentenced to time served, effectively 12 months’ imprisonment, and then released upon a community correction order. Particular reliance was placed upon the recent guideline judgment of the Court of Appeal in Boulton v The Queen.[4] Emphasis was placed on the Court’s acknowledgment of the punitive elements and character of a CCO, which it describes as “a sentencing disposition which enables all of the purposes of punishment to be served simultaneously, in a coherent and balanced way”.[5] The Court made clear that it may be appropriate to impose a CCO, with or without a term of imprisonment, for relatively serious offences, even when such cases would have previously attracted a medium term of imprisonment. Particularly, the Court made clear that this sentencing option offers a court something which no term of imprisonment can offer; namely, a sentence which demands that the offender take personal responsibility for self-management and self-control, including the pursuit of appropriate treatment and rehabilitation, which, of course, enables an offender to work in the community if appropriate and to maintain a continuity of personal and family relationships, whilst refraining from undesirable influences.[6] The Court also noted that the combination sentence option of combining a CCO with a sentence of imprisonment adds to the flexibility of the CCO regime.[7]
[4][2014] VSCA 342.
[5][113].
[6][114].
[7][141].
37 The prosecution submitted that time served would be an insufficient period of punishment for your offending; that there should be further imprisonment; and that a CCO would not be appropriate. It referred to a number of recent stalking cases involving a former intimate partner, which I have considered.[8] I agree with the prosecution analysis of these cases and its conclusion set out in its written submission.[9] However, it is not necessary to refer to them in detail. The factual circumstances of each of them differ from the present matter and I did not consider they stand as helpful comparative sentencing cases. At the end of the day, your case turns on its own facts and circumstances. As one judge observed in one of those cases (when considering manifest excess), there is a “…lack of utility in simply comparing numbers…..Circumstances of offending and offender are infinitely variable, and sentences, consistently with principle, may also vary considerably.”[10]
[8]Maher v The Queen [2011] VSCA 136; RR v The Queen [2013] VSCA 147 (RR); Gale v the Queen [2014] VSCA 168; and Fernandez v The Queen [2014] VSCA 169 (in which Priest JA refers to two other stalking cases at [24]-[25]). See also: Duncan v The Queen [2011] VSCA 351.
[9]Exhibit J.
[10]RR, [152], per Ashley JA, with whom Redlich JA agreed.
38 Of course, a court must not impose a jail penalty other than as a last resort and in circumstances where no other disposition would meet the needs of the circumstances of the case. Significantly, the Court in Boulton made clear that “the advent of the CCO calls for a re‑consideration of traditional conceptions of imprisonment as the only appropriate punishment for serious offences”, and it concluded that a CCO can serve all the purposes of punishment, “even in quite serious cases”.[11] Indeed, the Court said that “even if in cases of objectively grave criminal conduct, the court may conclude that some or all of the punitive deterrent and denunciatory purposes of sentencing can be sufficiently achieved by a short term of imprisonment of up to two years if coupled with a CCO of lengthy duration, with conditions tailored to the offender’s circumstances and the causes of the offending, directed at rehabilitative purposes.”[12]
[11][5]–[6].
[12]Appendix 1, Clause 27.
39 Having given the matter careful consideration, particularly in light of the Boulton principles, I agree with the prosecution submission. The important principles of just punishment and community protection dictate that your offending - especially the period of time over which it occurred, viewed against the backdrop of your previous criminal history involving the very same victim, and whilst on the suspended sentence and the community-based order and (in part) whilst on bail – deserves a total effective sentence which will involve the service by you of a further period of imprisonment. This is so, notwithstanding the progress you have made in recent times.
40 I have considered whether it is necessary to place you on a CCO after your release from prison but decided that is unnecessary from your personal perspective and that it would be a further unwarranted punishment upon you. I have reached that conclusion in light of your rehabilitative efforts whilst on bail, and the absence of any inappropriate conduct concerning the victim or her family and associates. If you are granted parole, you will have that on-going support which is of benefit to you and the community. Obviously you need ongoing psychological counselling to address your personal issues, which remain unresolved, but that can be part of your parole or, at least, this can be sought by you upon your release from prison, as you have already achieved with Dr Asher in the past. There is every reason why you should continue to live with your mother.
41 You were jolted by the first time custody already served and hopefully it is abundantly clear to you that any further inappropriate conduct concerning the victim, her family, or connections, or any other former partner you may have in the future, would place you in a position where you would certainly be sentenced to further imprisonment. I must have regard to the operation of the principles of totality and proportionality in your favour, and to avoid a crushing sentence upon you. However, there should be some measure of cumulation of sentence given the separate offences and different persons you committed offences against.
Sentence
42 Mr Sanchez, please stand up. On each charge you will be convicted and sentenced as follows. On charge 1, to 6 months’ imprisonment. On charge 2, to 21 months’ imprisonment. On charge 3, to 3 months’ imprisonment. On summary charge 7, to 1 months’ imprisonment. On summary charge 8, to 2 months’ imprisonment. The sentence on charge 2 shall be the base sentence. I order that two months of the sentence on charge 1 and one month of the sentence on charge 3 be served cumulatively upon each other and upon the sentence imposed on charge 2.
43 The total effective sentence is 2 years’ imprisonment. I fix a period of 18 months’ imprisonment to be served before which you shall not be eligible for release upon parole.
44 I declare that the period of 370 days’ pre-sentence detention be reckoned as already served on that sentence, and that such declaration be entered in the records of the Court.
45 But for your pleas of guilty, I would have imposed a total effective sentence of 3 years’ imprisonment with a minimum of 2 years.
46 The prosecution has applied for the granting of a forensic order, which, ultimately, was not opposed by you. It is a discretionary matter but I am satisfied, given the seriousness of the circumstances of your offending on the indictable charges; your prior criminal history; the fact that the order is not opposed; and that its granting is in the public interest, that the application should be granted. Accordingly, pursuant to s464ZF(2) of the Crimes Act 1958, you are ordered to undergo a forensic procedure for the taking of a scraping from the mouth and/or a blood sample in accordance with Subdivision 30A of Part III of the Crimes Act until a sample of a sufficient standard is obtained for placement on the database. I must inform you that notwithstanding your present lack of opposition to the application, if, at the time of the making of the request for a forensic sample, you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force, then the sample to be taken will be a blood sample, and police may use reasonable force to enable that forensic procedure to be conducted. I shall also make the forfeiture order which is not opposed. Please sit down for the moment.
47 I hand to the prosecution the signed orders. I ask counsel, are there any mechanical issues arising from the sentence?
COUNSEL: No, your Honour.
HIS HONOUR:
48 Mr Sanchez, you need to go with the prison officers now. Thank you. Please remove the offender.
49 [Offender removed]
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