Director of Public Prosecutions v Saunders

[2021] VCC 1656

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

AT MELBOURNE

CRIMINAL DIVISION

CR-21-00318

DIRECTOR OF PUBLIC PROSECUTIONS

v

DAMIEN SAUNDERS

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JUDGE:	HIS HONOUR JUDGE McINERNEY
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 October 2021
DATE OF SENTENCE:	21 October 2021
CASE MAY BE CITED AS:	DPP v Saunders
MEDIUM NEUTRAL CITATION:	[2021] VCC 1656

REASONS FOR SENTENCE

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Subject:   CRIMINAL LAW                

Catchwords:  Sentence – Plea of guilty – Recklessly cause serious injury – Attempt to pervert the course of justice – Contravene family violence intervention order – Commit an indictable offence whilst on bail – Eighteen month relationship – Family violence intervention order in place – Charge 1 high objective culpability – Charge 2 lower end of culpability – Substance abuse – Imprisonment – Non parole period

Legislation Cited: s. 17 Crimes Act 1958 – s. 123(2) Family Violence Protection Act 2008          

Cases Cited:Veen v the Queen (No 2) (1988)164 CLR 465 - DPP v L'Eveille [2018] VSCA 60 - Donnelly v The Queen [2021] VSCA 109 - Chew Tan v The Queen [2019] VSCA 226 - Mercer v The Queen [2021] VSCA 132 - Carter v The Queen [2020] VSCA 156

Sentence:Total effective sentence of 3 years and 9 months imprisonment    with a non parole period of 2 years and 6 months. Pre-sentence detention of 554 days.

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APPEARANCES:	Counsel	Solicitors
For the Prosecution	Mr A. Sprague	Office of Public Prosecutions
For the Accused	Mr B. Hardisty (Sentence) Mr S. Kenny (Plea)	Papa Hughes

HIS HONOUR:

1This sentence concerns Damien Phillip Saunders.  Mr Saunders is aged 40, and was born on 10 December 1980.  The plea took place on 6 October 2021.  This matter would have hopefully been heard in the Koori Court of the County Court.  However, as the matter occurred at Collingwood, it was necessary to list it in the general list as, at the time, jurisdiction did not exist for this matter to be heard in the Koori Court.

2In the plea, Mr Sprague appeared for the Director, as he does today.  For Mr Saunders, Mr Kenny appeared in the plea.  Mr Kenny sought to be excused today and Mr Hardisty appears.  I want to thank all parties for being heard remotely; the victim, Ms Blake[1], and her support people; and Mr Saunders' family, who are appearing remotely today.

[1]        Pseudonym used. Throughout these reasons pseudonyms have been used to ensure that there is no possibility of identification.

3The Court arranged for the Koori Court representative of this Court, Ms Shirley Annesley, who is the Aboriginal Liaison Officer to the Court, to confer with Mr Saunders before and after the plea hearing and, indeed, despite the difficulties with time, we have made arrangements for her to talk to both Mr Saunders' family after the sentence today, and to Ms Blake.  I also conveyed to Mr Saunders the advice of Judge Lawson, who is the Judge in charge of the County Court Koori Court, concerning the Yawal Magadjina Program which is provided in prison to assist Aboriginal prisoners to prepare by way of mentorship and obtain post-release support through the local justice program. As will be obvious from these sentencing remarks, given the amount of time that Mr Saunders has had in prison, he no doubt is well associated with similar type programs. 

4In this indictment no.L10379979 there were two charges. The first is recklessly cause serious injury to Ms Blake on 17 January 2020 in Collingwood, an offence against s17 of the Crimes Act, the seriousness of which is reflected by the fact that the maximum penalty prescribed by Parliament is 15 years' imprisonment.

5The second charge on the indictment is laid under the common law, being an attempt to pervert the course of justice.  This took place during a conversation from the remand centre.  This is equally a serious charge, as demonstrated by the fact that the maximum penalty prescribed is 25 years imprisonment. 

6At the plea, Mr Kenny, on behalf of Mr Saunders, pleaded guilty to two summary matters.  Firstly, Summary Charge 9, which is a contravention of family violence intervention order, which occurred on the same date by entering the house of Ms Blake.  Such is an offence against s123 of the Family Violence Act and, prescribed as the maximum penalty is 240 penalty units and/or two years' gaol. Mr Kenny also on behalf of Mr Saunders pleaded guilty to Summary Charge 11, which is a breach of the Bail Act and Mr Saunders' bail provisions, pursuant to s30B of the Act, the maximum penalty prescribed is 30 penalty units and/or three months' gaol. 

7To date, as agreed today, the maximum period served by Mr Saunders on remand is 554 days, not including today.

8It is also agreed and accepted by all parties, that Mr Saunders is entitled to a Renzella allowance of 128 days and the basis of that is set out in Exhibit 2.  I have also been asked to sign a disposal order in regard to the machete and various other knives. 

9In regard to the prosecution case, Exhibit B was filed, which was the victim impact statement of Ms Blake.  She was 37 at the time of this attack.  Her victim impact statement was tendered as Exhibit D and read to the Court by the prosecutor.

10Also tendered at the plea was Exhibit C, which were the photos of Ms Blake's injuries and the consequent.  I will come to those matters in due course. 

11Coming to that victim impact statement, Mr Sprague read the victim impact statement. Given the injury suffered, the force of such injury, and its consequences, Mr Sprague submitted that this must have been a terrifying experience for Ms Blake. As Ms Blake says in Exhibit B, it left her traumatised and fearful, indeed, she said further she feels lucky to be alive.  In addition to the injury to the right knee, there was also a laceration to the left leg.  Insofar as her injuries, she required braces for a period of six months.  She was left with scarring and limitation in that she now, according to her statement, cannot run and, indeed, cannot ride a bike.  She was required to use crutches for some six to nine months.

12The injury, in particular, to Ms Blake’s right leg above the knee, has had a grave impact upon her and there has been a protracted recovery process, which is still progressing.  While I accept the submission of Mr Kenny that, clearly, in cases of this type, we deal with a range of injuries and, of course, there are more serious injuries, in my view, this is a particularly serious injury, as I have said, has had a grave impact upon Ms Blake. 

13Mr Kenny accepted the prosecution opening, Exhibit A, as being the facts upon which I am to sentence Mr Saunders.

14I come now to assessing the objective offending of these crimes.  Despite the mitigatory matters, Mr Kenny realistically accepted that there was no other option but for a term of immediate imprisonment with a non-parole period.  I refer, in particular, to [48] of Exhibit 1.  This acceptance by Mr Kenny on behalf of Mr Saunders was made, despite Mr Saunders personal background, him being thoroughly institutionalised, and having spent the greater part of the last 10 years in gaol. Those circumstances, of course, create a difficult and concerning sentencing task for this Court. 

15As I said, charge 1 involving the serious injury is, of course, a very serious charge.  Mr Saunders at the time was living in a drug/crime environment and was hypervigilant post an assault carried out upon him, allegedly with an axe, at Ms Blake's house approximately two weeks before these incidents.

16It was as a result of that attack, I am told by Mr Kenny, that Mr Saunders carried the machete, which he had sharpened to a very high degree.  Hence, when Mr Saunders arrived at Ms Blake's home at approximately 2:00 am in the morning, he almost immediately argued with her.  This came about, apparently, because he was concerned that she had been away and perhaps had been cheating on him.  He was, unfortunately, heavily drug affected at the time.

17Mr Saunders attacked Ms Blake with the machete, forcefully, to such a degree that he sliced through her right leg at the top of the knee with such power that he reached the femur, fracturing it at the distal end.  The medical material shows that, as a result of such a significant impact and fracture, there was a high risk of infection and Ms Blake needed hospitalisation in that regard.

18

Unfortunately, there were no photos immediately after this attack, only

Exhibit C, which I have referred to, which shows the repair that has been effected upon, in particular, the right leg and the quite obvious and significant scarring left as a consequence of this attack.  However, those photos, being in colour in Exhibit C, give an indication of the extent of this slicing to the lower thigh above the knee, and I refer, in particular, to the photos marked 186.2 and 186.3.

19This attack, it should be noted, was aggravated by the fact that it was committed while there was a family violence intervention order in place protecting the victim. I note that Mr Saunders was, despite that order, at the premises with the victim's consent.  Further, it is generally aggravated by the fact that this offence was committed in what is known as a 'family violence context'. 

20Hence, I find the objective culpability of this first charge to be high.

21Coming then to Charge 2, as I have said, given the penalty prescribed, and the potential attack on the legal system by such actions, this charge is seen as being inherently serious.  The defence submitted that I should determine that the culpability here should be seen at the lower end, in particular, because it was not persistent, was only for the one day, concerned only the one conversation and that there were no further consequences known to the Court where Justice was interfered with. I agree with the submission put that certainly this must be seen at the lower end of culpability and, nowhere near as serious as the first charge on the indictment.

Criminal Priors

22I come then to the priors of Mr Saunders.  These priors, unfortunately, are indicative of a person who is institutionalised, who has been subject to social deprivation, and addicted to a variety of substances of some form from an early age.  These prior offences were admitted by Mr Kenny and comprise of some 31 pages, beginning from the Children's Court in 1999, with perhaps, interestingly, a charge of intentionally cause injury for which Mr Saunders received a sentence of nine months' detention in a Youth Training Centre.  He was 19 at that time.

23Since that time, there had been numerous drug, theft, driving, burglary type offences.  Concerningly, however, Mr Saunders’ history is replete with crimes of violence.  Apart from the one I have referred to for which he was sentenced to youth training, when he was 20, in February of 2000, he was convicted of the charge of recklessly cause injury and placed on a community-based order for 12 months.  When Mr Saunders was 21, on 5 June 2001, he was sentenced for another charge of recklessly cause injury to one months' gaol. 

24When Mr Saunders was 21, in that same year, on 15 November, he was again sentenced for a charge of recklessly cause injury to a two-month suspended sentence, which he ultimately breached.  When Mr Saunders was 28, in March of 2008, he was convicted of a charge of unlawful assault and sentenced to three months' gaol, and in November 2008, he was convicted of armed robbery.  He was sentenced to two years gaol, he served six months and was given a 34‑month suspended period.

25When Mr Saunders was 34, in April 2014, he was sentenced for recklessly causing injury and threat to cause serious injury to six months' gaol.  Then, finally, when he was 37, in July of 2017, he was convicted of assault emergency worker and, together with a number of other offences for which he was dealt with on that day, sentenced to an aggregate sentence of 155 days in gaol.

26I note in such history that it is also replete with assistance schemes and/or attempts, one of the schemes was called 'Break the Cycle', and there were many references in Mr Saunders’ sentences to the Royal Commission Into Aboriginal Deaths in Custody.  There have been a number of referrals for men's behaviour change programs, for drug dependency programs.  He was placed in residency at Odyssey House in January 2017.  Mr Saunders was subject to judicial monitoring in January 2017 and has had numerous orders where he has been subject to supervision pursuant to community correction orders.

27Mr Saunders, I want to make it clear to you that, despite my mention of your priors, you do not come here to be sentenced for them again.  That is very important for you to understand.  I am sure you do.  As the High Court in Veen v the Queen (No 2) (1988)164 CLR 465, 477 - Mr Saunders, can I apologise now to you, there are a number of legal references because of the complexity of your case and the difficulties of your case that I have got to refer to. You just have to be patient until I get to the end, all right?

28

As I said, I was referring to page 477 of the Veen judgment of the

High Court, where they said:

'The first is that the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence.'

29On the same page, the High Court went on to say that such prior offences are relevant to show: 

'Whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience to the law.  In the latter case, retribution, deterrence, and protection of society may all indicate that a more severe penalty is warranted.  It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity, or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind.'

30The Victorian Court of Appeal also spoke on this matter in Berichon v The Queen [2013] VSCA 319, [44], where the Court said:

'… the applicant had a very serious and disturbing prior history with respect to the use of firearms.  Although, of course, he is not to be punished again for the prior offences, the applicant's prior history is relevant as an indicator of his moral culpability, his prospects of rehabilitation, his dangerous propensities and the community's need for protection, and the increased importance of specific deterrence as an animating factor in the sentencing process.'

31Mr Saunders, I must say, in your case those quotations present very challenging concepts in sentencing you.  Given the matters that I have now referred to, your counsel quite professionally accepts, as I have said, that you must be imprisoned.  I have given that reference, and the prosecutor, insofar as the written submission of the prosecution, is in agreement with that submission, see [2] of Exhibit D.

32The prosecution also supplied the Court with comparative cases.  I refer to Donnelly v The Queen [2021] VSCA 109, Chew Tan v The Queen [2019] VSCA 226, Mercer v The Queen [2021] VSCA 132, and Carter v The Queen [2020] VSCA 156, which, of course, are described by the High Court in R v Pham (2015) CLR 550, [29], that is, comparative cases, as being illustrative yardsticks in the process of the instinctive synthesis, that I must adopt in your sentence. The prosecution submitted that there was a need for substantial cumulation between Charges 1 and 2 on the indictment in order that there be appropriate individual recognition of the distinct criminal liability therein involved.

Plea of Mr Damien Saunders

33I come now to the plea of Mr Saunders.  Mr Kenny tendered:

(a)   Exhibit 1, his outline of submissions that I have referred to dated 4 October 2021;

(b)   Exhibit 2, a further submission as to the Renzella allowance, which was dated 6 October;

(c)   Exhibit 3, a clinical report of Ms Mynard,  psychologist dated 7 July 2021; and,

(d)   Exhibit 4, a letter from Professor Meredith dated 6 October 2021, who is, in fact, a member of Mr Saunders' family.

34Perhaps if we go to Ms Mynard's report firstly.  She, as I have said, is a clinical psychologist.  Her report, Exhibit 3, was dated 7 July 2021 and I want to read from that report.  Firstly, I want to read from p2, and this in addition to the background material that Mr Kenny put to the Court, and I referred to the background material in Ms Mynard's report, but, in addition, I want to read out some matters there.

35As set out in paragraph 11,Mr Saunders was 'subject to family assaults, both emotional and physical as a child.’  At paragraph 12, it refers to ‘…his grandfather physically abusing Mr Saunders and his brother to the extent that they would run away from home.  When they were returned, his grandfather would flog them every afternoon after school.  He recalls being smacked and being hit with a stick.  He was frightened of his grandfather and constantly hypervigilant, never feeling safe.  Mr Saunders and his brother left home and were homeless for several years, albeit being very young.'

36I turn to p3, paragraph 14,

'Growing up without a father, Mr Saunders' father died when he was four years old from a car accident.  While he remembers a funeral, Damien was never able to meet his father.  Paragraph 18, 'Mr Saunders does wonder if abuse in the past had played a part in his tendency for drug use and addiction.  He has not done any trauma counselling.  He acknowledges that he often uses drugs to try and feel stronger and get away from his memories.'

37I turn to p5, paragraph 30,

'Mr Saunders first used speed when he was 11 years old and used speed up to his mid-twenties.  After that, he used methamphetamine.  He reported he first commenced heroin at the age of 20, seven years after his older brother died of heroin overdose.  He stated that he wanted to see what it was all about and he ended up with a $800 a day habit.  He noted that using ice and heroin could help him regulate his emotions and forget traumatic memories.'

38

At paragraph 32 'he explained that he uses both methamphetamine and heroin together over the last five years.'  I also note in paragraph 35 on that page that he now has six children, including four children to one partner, a

19 year old, a 17-year-old girl, a son who is 16, and a daughter who is 14.  They all live in Mildura.  Mr Saunders last saw them at Christmas time. 

39If I then go to p6, at paragraph 36, it is noted that he has another son who is aged five, whose mother was in custody when he was born.  Obviously, there have been ongoing difficulties with that relationship with Mr Saunders because of his incarceration. 

40On that same page is reference to these crimes.  He speaks of meeting Ms Blake somewhere between 2017 and 2018.  Mr Saunders talks of his suspicion of Ms Blake, that he did not know or was not sure what he was to say to her.  He admitted that he had been using ice four to five days prior to the offending.  He says that he did not use it for two days prior to the offending. 

41Going to paragraph 7:

'He said that Ms Blake had come back after being away.  He confronted her about cheating on him.  He had a knife in his hand.  He meant a machete.  He explained that he threatened her and that his wrist went too far and the knife fell into her leg.'

42That does not sound consistent with the impact as has been observed.  Unfortunately, at that stage, Mr Saunders was, and I refer to paragraph 43 here, 'minimising his offending and said that he was trying to show his frustration with his partner by threatening to kill her.' 

43I then go to p8 under ‘Opinion’.  If I can read from that, 'Mr Saunders had a very difficult childhood.'  Paragraph 51, 'he has multiple layers of trauma that he has experienced in his life, including childhood issues, trauma from abusive grandfather, multiple experiences of trauma in adulthood, including the traumatic grief of losing a brother and, most recently, being attacked with an axe to the head,' in this instance it says 'months' prior to the offending.  'His PTSD symptoms of paranoia and hypervigilance have been heightened by his ice use.'

44I then go to p9, paragraph 57:

'Mr Saunders appears to be in a survival state currently and has been for his whole life, being highly triggered by his traumatic memories and unable to process the severe traumas he was exposed to.  In this highly traumatised state of survival, Mr Saunders frontal lobes are less functional with impaired reasoning, lack of positive problem solving skills, and difficulty self-monitoring and self‑regulating.'

45Finally, at p10, Ms Mynard said at paragraph 62,

'The writer believes that Mr Saunders does require rehabilitation and intervention to continue to move forward with his life.  Otherwise, his risk of reoffending is moderate to high.  His prospects of rehabilitation are moderate, given that he can reflect on himself and his behaviour.  He does have emotional intelligence.  However, he will need to show some commitment to engage with services offered to him and take the benefit of his family's support.  He is currently stuck in a pattern of re-offending and has struggled to stay in the community for three or five months at a time.'

46If one ever wanted classic symptoms of what is known as the Bugmy principles, we have got it here.  As always, the issue with Bugmy is to rationalise all of the circumstances before me so that, as required by the High Court in DPP v Dalgliesh (2017) 91 ALJR 1063, 1075, Mr Saunders receives an individualised and just sentence based upon the facts of this case.

47Coming then to Bugmy (2013) 249 CLR 571, 592 - 593, [37], I want to come to what the Court of Appeal said insofar as Bugmy is concerned. The Victorian Court of Appeal, in discussing Bugmy in DPP v L'Eveille [2018] VSCA 60, [26], said:

'In order to assess the rival contentions concerning the use which should be legitimately be made of Bugmy principles as a mitigating factor, it is necessary to consider what the High Court said in that case.  In Bugmy, the High Court was concerned with an offender who came from an Aboriginal community, surrounded by alcohol abuse and violence when growing up, a lack of formal education, and a long record of convictions and incarceration, including for offences of violence.'

48One might have thought that is a pretty good summary, if I can interrupt the quotation for the moment, of what I have been referring to in regard to Mr Saunders.  I will continue with the quotation:

'The High Court determined that deprived or traumatic childhoods of that kind may constitute a mitigating factor in sentencing such an offender, although each case must depend upon its own facts in order to ensure individualised justice.'

49Further, in the case of L'Eveille the Court of Appeal said:

'The concept of full weight requires some explanation.' 

50At [28], the following was said:

'However, this is not to suggest, as the appellant's submissions were apt to do, that an offender's deprived background has the same mitigatory relevance for all of the purposes of punishment.  Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult. An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated, such that the offender's moral culpability for the inability to control the impulse may be substantially reduced.  However, the inability to control a violent response to frustration may increase the importance of protecting the community from the offender.'

51It is to be noted that, of course, in Bugmy the High Court sent the matter back for reconsideration of the sentence to the Court to determine whether the appellant's background of profound childhood deprivation allowed the weight that would ordinarily be given to personal and general deterrence to be moderated in favour of other purposes.

52Taking those principles on board in this case, I find that such principles do reduce the culpability in regard to Charge 1 and 2, but, as already detailed, in particular as to Charge 1.

53It is necessary to balance such finding against the obvious dangerous propensities as to violence which have been exhibited by Mr Saunders and the need, in those circumstances, to craft a sentence which not only deters him, but others, from committing further such offences.

54In the plea, Mr Kenny put in mitigation for Mr Saunders the following matters: 

(a)   Firstly, after Mr Saunders effected the assault on Ms Blake, he immediately tried to assist;

(b)   Secondly, that Mr Saunders has expressed regret, and does regret, his actions; 

(c)   Thirdly, Mr Kenny's submission was that I should find that the injury could be classified as a mid‑range type injury for this offence.  As I have explained, I accept that because cases such as this involve even more serious assaults than Ms Blake's. However, in accepting that submission, I should make it clear that that does not take away what I have described as the impact of the injury in the victim impact statement and the fact that this Court must take such into account as detailed in these sentencing remarks; 

(d)   The fourth matter that Mr Kenny put was that, on behalf of Mr Saunders, he accepted the aggravation in this offence, as it was committed while on a specific family violence intervention order concerning Ms Blake and also while on bail.

55Albeit that the provisions in this case of s16(3)(c) apply, Mr Kenny also counselled the Court, respectfully, of course, to ensure that double punishment was not effected.

56Mr Kenny further submitted that Mr Saunders still has support here in Melbourne from the Yorta Yorta Melbourne mob and also has family in Shepparton.  However, as I understand, Mr Saunders does not want to stay in Shepparton and I take into account, in particular, the comments from his other family, so to speak, which is set out in Exhibit 4 from Professor Meredith.

57Insofar as rehabilitation, Mr Kenny said, and it seems to me one can only agree, given Mr Saunders’ history, that one's view must be guarded on the basis of the materials I have read from Ms Mynard’s report. Mr Saunders, can I just say to you now, you will have plenty of time to read this judgment and it will be explained to you, but, at the age of 40, with your history, you have got to do something because if you continue as you are going, you will be across the road on a murder charge. You simply must change your life.  You cannot go back to Collingwood.  It is a disaster if you went back to Collingwood.  You have got to take the steps, for example, that have been mentioned by Judge Lawson, that are available in your own community to take hold of your life because, if you do not, you are going to be in gaol forever, unfortunately.  It is bad enough now to have to sentence you and take into account the time that you have spent in gaol.

58Mr Kenny also put as matters of mitigation - and I accept totally - during the time that Mr Saunders has been on remand he has been subject to the risk of infection from COVID-19.  Fortunately, that risk until very recent times has not presented itself by way of community contamination in gaol, and the Corrections Department is to be congratulated on that.  However, there have been circumstances where one is subject to excessive lockdowns, one's ability to get out of the cell is therefore limited, one is subject to restricted visits, restricted programs, and I take all of those matters into account.

59In particular, I take into account the principles sets out by the Court of Appeal in Worboyes [2017] VSCA 169 [39], as to the extra utilitarian value of Mr Saunders making a plea to these charges in these times when the justice system is so stressed. The guilty plea itself entitles Mr Saunders to appropriate discount, which has to be reflected in a s6AAA statement, and that will be effected by me, but I do, indeed, grant to him the appropriate discount for all of those factors.

60I was referred to the sentencing snapshot in regard to Charge 1 by Mr Kenny.  It is noted that the median sentence for those charges, as a single sentence, is two years and eight months, with the range being up to 10 years.  So it gives simply an indication of the variety of offences that this section covers, and which Courts have to deal. Mr Kenny reminded the Court as to the absolute necessity to take into account totality in this matter.

61Mr Kenny further submitted the Renzella principles, which I accept, and were accepted by the Director, that I must take into account in both the sentence and the assessment of the appropriate period to be served prior to being eligible for parole, that Renzella time, has been agreed at 128 days.

62Mr Saunders, I come to sentence you after taking into account those factors.  As I said to you earlier, I am sorry for the time that this sentence has taken, but, as you will notice, if you get the opportunity to read it, there are many considerations that have to be taken into account in your case.  I have been as merciful as I can be in the circumstances.  I repeat my comments to you about the future.  Obviously, you do not need to stand.  You just sit where you are, since this is remote.

Sentence

63I come to sentence you.  You will be convicted on all charges.  In regard to the indictment, you will be convicted of Charge 1 and sentenced to imprisonment for three years. 

64In regard to Charge 2, you will be convicted and sentenced to for imprisonment of 18 months. 

65In regard to the summary matters, in regard to Charge 9, you will be sentenced to imprisonment for three months; in regard to Charge 11, imprisonment for one month.

66Despite the provisions of s16(3)(c) of the Sentencing Act, which apply to sentencing persons who commit offences while on bail, the principle of totality, in my view, must prevail as a matter of justice and full cumulation is not appropriate in this case. 

67Using charge 1 as the base sentence, I order that nine months of the sentence imposed, that is, the 18 months, on Charge 2 be cumulated with Charge 1 - I do not cumulate any other of the sentences - making a total effective sentence of three years and nine months.

68I order that the period that you must serve before being eligible for parole is two and a half years. I declare that the period served by way of pre‑sentence detention, pursuant to s18 of the Sentencing Act, be declared as service of this sentence and a declaration to that effect be entered in the records of this Court. 

69Mr Saunders, I am required to tell you as a result of you pleading guilty what that means to you by way of benefit.  Can I indicate, as would be obvious to anyone who has listened to this sentence, the fact of pleading guilty is only one of the mitigatory factors that I took into account in this sentence. However, doing as best I can to comply with Parliament's requirement, can I indicate to you that, had you not pleaded guilty, the sentence I would have given you is not three years and nine months with two and a half years to serve before being eligible for parole, but it would have been a sentence of five years with three years and nine months as the appropriate period before you are eligible for parole.  I have signed the disposal order, which relates to not only the machete, but two other knives as required by the prosecution.

70HIS HONOUR:  Do either counsel need any clarification of any of those matters?

71MR SPRAGUE:  No, Your Honour, nothing to raise.

72MR HARDISTY:  No, Your Honour.

73HIS HONOUR:  Fortunately, even though this has taken some time ‑ is Ms Blake now present, remotely?

74UNIDENTIFIED SPEAKER:  Yes, she's here.

75HIS HONOUR:  Sorry?

76UNIDENTIFIED SPEAKER:  Yes, she's here.

77HIS HONOUR:  She's here?  Good.  All right.  So Ms Gillespie, you've got six or seven minutes before this - we tried to get this extended, I might tell everyone.  Ms Gillespie, you can take the opportunity, as you said you will, to not only talk to Mr Saunders and, indeed, Mr Hardisty, you might want to stay on while that is done.

78MR HARDISTY:  I will, yes.

79

HIS HONOUR:  Also, Ms Gillespie, I understand you're going to talk to

Mr Saunders' family and you may well also talk to Ms Blake.  Ms Blake, I am sorry that the Court had to start without you being here, but, as I explained, we have only got an hour from the Corrections Department and, as is obvious, it has taken me nearly all of that hour to pronounce this sentence.  You will, of course, be sent by the prosecution a copy of my written remarks when I settle them.  Yes, well, I will get off as soon as I can.  Madam Associate, will you assist

Ms Gillespie to effect those discussions.

80ASSOCIATE:  Yes, Your Honour.

81HIS HONOUR:  Yes, Mr Tipstaff.  We can adjourn the Court.

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