Director of Public Prosecutions v Scandolera and Harraghy
[2021] VCC 1688
•29 October 2021
m
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR 21-00848
Indictment No. L12861270 & L12861204
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| Robert SCANDOLERA and Dylen HARRAGHY |
---
JUDGE: | HIS HONOUR JUDGE TINNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | Plea 21 October 2021 (S) 25 Oct (H) | |
DATE OF SENTENCE: | 29 October 2021 | |
CASE MAY BE CITED AS: | DPP v Scandolera and Harraghy | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1688 | |
REASONS FOR SENTENCE
Catchwords: Scandolera: Home invasion – intentionally causing injury - possess drug – theft -summary assault - 27 years old - Significant criminal history - on CCO at time – Verdins – Bugmy - quite poor prospects of rehabilitation - Occupant attacked with meat cleaver
Harraghy: Aggravated Burglary - theft of car - offend on bail - Intent to assault - victim present within - not complicit in carriage or use of weapon. Different considerations for Harraghy; on bail at time with more stable background - far less significant criminal history - Early guilty plea and Worboyes (each) - impact of COVID-19 (each)
---
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms N. Burnett (at Plea) Mr V. Liaw (at Sentence) | Office of Public Prosecutions |
| For the accused Scandolera For the accused Harraghy | Ms J Poole Mr M Sturges | Stary Norton Halphen Greg Thomas |
HIS HONOUR:
1 Robert Scandolera, you have pleaded guilty to one charge of home invasion, one charge of intentionally causing injury, one charge of possession of a drug of dependence and one charge of theft. You have also pleaded guilty to a related summary assault.
2 You were born in March 1994 and are 27 years of age.
3 You have admitted a lengthy criminal history.
4 You Mr Harraghy have pleaded guilty to aggravated burglary, theft of a car and a related summary offence of committing an indictable offence whilst on bail. You were born in February 1993, are 28 years of age and you have admitted a far less lengthy criminal history.
5 The summary in each case correctly sets out the maximum penalties. I note that home invasion and aggravated burglary are punishable by the same maximum penalty, being 25 years' imprisonment.
Facts
6
Ms Burnett appeared to prosecute on each of the pleas which were conducted a few days apart. That arose in a setting where I learnt as I was about to hear Mr Scandolera’s plea on Thursday of last week, that
Mr Harraghy’s plea was listed before another judge on the following Monday, that is Monday of this week. That made no sense at all. It was quite undesirable that different judges hear the related matters unless, of course, that could not be avoided and it could be easily avoided here. I have now heard each of the pleas, but as I say, a few days apart.
7
Ms Burnett relied upon two summaries of prosecution opening, each dated 6 October 2021. Your respective counsel told me that the relevant summary was, in each case, an agreed statement. It was marked as
Exhibit A on the respective pleas.
8 I see no need then to set out the full sentencing facts in these my reasons, they will be lengthy enough as is. I sentence pursuant to those agreed summaries. There are also a range of photographs within the depositional material including stills from a number of CCTV cameras. There is no need for those to be marked as exhibits. There were also some medical records in the depositional materials which I raised on the plea so that the parties had the chance of at least addressing me on them. They were referenced in the agreed openings and of course any injury sustained by your victim was only relevant to you Mr Scandolera given the differences in charges and the basis of the settlement of the matter. You caused the injury with the meat cleaver and neither that act or outcome falls at Mr Harraghy’s feet.
9
By way of very brief summary then, you Mr Scandolera assaulted the victim Mr Slattery at your co-accused Mr Harraghy’s premises in Clow Street Dandenong on 26 November of last year. That summary assault in the hallway in the early hours is described in para 6 of the opening. You intervened in that assault Mr Harraghy and pulled Mr Scandolera off
Mr Slattery. You Mr Scandolera stole Mr Slattery’s mountain bike hence charge 4 on the indictment. This all took place in the early hours of that morning. Later on, at that same location, the two of you and one other man left the underground carpark in a car. This was many hours later at around 2:33pm. You were the driver of that stolen car Mr Harraghy. Hence
Charge 2 on your indictment. It is not suggested you had actually gone out and stolen the vehicle. You were driving it in circumstances consistent with theft. That car was then driven to the victim’s residence in Doveton.
Mr Slattery was asleep inside. You two and the other man got out of the car and went towards the rear of the property. You, Mr Scandolera, had the meat cleaver which you pulled from your clothing. You Mr Harraghy went back to the car when you saw the weapon being carried by Mr Scandolera. You, Mr Scandolera kicked in the door and entered with one other person. That person remains unidentified other than by the nickname “Shadow”.
10 Having burst into Mr Slattery’s room, you Mr Scandolera attempted to strike him twice with the meat cleaver as he lay in bed. You then struck him with that weapon to the left side of his head. This was as he was lying in bed and that blow caused him injury. You and your unidentified offsider then returned to the car which was then driven away by you Mr Harraghy. The summary describes in each case how you left and what others observed of that phase.
11 Mr Slattery was taken to hospital and admitted for a couple days. He was discharged on 28 November. He suffered a 6cm long cut which was deep and down to the bone. A CT scan was conducted and that disclosed the presence of a subgaleal bleed as well as the existence of what was at least suspected to be a tiny subarachnoid haemorrhage. It is unclear if it actually was, so I will not sentence on the basis of such an injury existing. It is clear though that he was admitted to the hospital for observation given the nature of the wounds. He was sutured and managed conservatively and as I say, discharged a couple of days later on 28 November.
12 You Mr Scandolera were arrested on 8 December and you were found to be in possession of a small amount of ‘ice’ hence Charge 3 on your indictment. In case I forget to say so later, I do accept your counsel’s submission that the lower penalty provision applies, in that there is no reason for me not to be satisfied on the balance of probabilities that your possession was not connected in any way to trafficking in that drug. You have in this way discharged your burden in that respect and the Crown accept that is so (‘Pantorno’ burden[1]).
[1]Pantorno v The Queen [1989] HCA 18; 166 CLR 466
13 You were interviewed and provided predominantly no comment responses as was your right. You certainly provided no explanation at all for the assault or for the home invasion or for the intentionally causing injury. You admitted possession of the drugs. You refused to provide a DNA sample. Your response to the police is not in any way a matter in aggravation. It simply deprives your counsel of the ability to point to the mitigatory aspect of any significant co-operation in this case. There was not any significant co-operation.
14 You were also arrested on 8 December, Mr Harraghy, and provided a number of admissions about your own conduct in the course of your police interview. What is plain from your interview is your understanding of how unpredictable and out of control Mr Scandolera was. You spoke of his agitated state and seeing him brandishing a weapon at your unit. You described the steps taken to persuade him to put it away and not carry it. You also described another earlier occasion where you had gone with him to pay someone a visit, that was some months before, and that had ended up with him losing control and striking another person with a claw hammer. You do not fall to be sentenced for that conduct but you can hardly pretend that this was a person who might be expected to be temperate or controlled. He wasn’t on the day that you set out in the stolen car and you knew that. You had an interest in this visit as Mr Slattery owed you money in relation to a drug debt and you were also unhappy that you believed he had made some form of overture to your girlfriend. You knew that Mr Scandolera was aware of and in fact likely acting to some degree on the strength of those grievances as well as some other grievances that he held of his own. You drove that man in that state, and another to the scene and then you left the vehicle as a group of three.
15
Each summary sets out the chronology. It is an early plea. It also sets out the maximum penalties and the ramifications of what is described as the category 2 status for the home invasion offence in your case
Mr Scandolera.
16 The basis of your liability Mr Harraghy is spelt out in paragraph 3 of the opening in your case. That explains why you are before the Court for aggravated burglary as opposed to home invasion and the basis of that settlement which, of course, I do not go behind. It is unusual in that even accepting that you had no knowledge of the weapon as I must, your design was to enter premises believed to be occupied, in company, and with intent to assault a person who was within. That would itself meet all the elements of a home invasion. The weapon is not a critical aspect to that charge. Anyway that is by the by. I will sentence you as an aggravated burglar and must not find against you knowledge of the weapon. That is not the basis of the aggravation specified.
17 There are obviously some key differences here and one of those is that as a result of not facing the home invasion charge, I am not faced with a category 2 offence in your case, Mr Harraghy. It still was inherently serious offending as was conceded by your counsel. You were after all party to a confrontational aggravated burglary albeit not with weapons. You were the driver of this raiding party, you had a motivation for wanting Mr Slattery visited and the specified intent upon entry which was an intent to assault a person within their own residence. That is no minor crime by any stretch of the imagination.
18 You have been in custody since your arrest on 8 December Mr Scandolera.
19 You have spent less time in custody Mr Harraghy as you were bailed in December 2020 after about 10 days in custody but you went back into custody in August of this year as a result of subsequent alleged offending and the revocation of your bail.
20 So much then for my short summary of the summary. I sentence pursuant to the far more detailed agreed statement marked as Exhibit A in each case.
Impact
21
There is no impact statement placed before me here but it is obvious that the crimes would have had immediate impact. Mr Slattery was assaulted both in the hallway in Clow Street and later in his home by you
Mr Scandolera. He was roused from his sleep and attacked to the head with a most fearsome weapon by you. He was hospitalised for two days. I take into account the impact here. It must have been a terrifying attack. I have to be careful about this. The fact is in your case Mr Harraghy, you had no intention for such an extravagant attack to occur. You had no knowledge of the weapon but it must be said, still expected that he’d be beaten up in his house. That style of crime would itself have had significant enough impact but, of course, that was overtaken here by the actual impact sustained at the hands of Mr Scandolera for which you are not responsible.
In Mitigation
Plea Scandolera
22
Mr Scandolera, your counsel Ms Poole conducted what was a very thorough plea on your behalf and relied upon a written outline dated
20 October.
23 She placed before me some details of your personal background including your educational, relationship, drug and employment history. She made some submissions as to the relative gravity of the offending and as to your prospects of rehabilitation.
24 She placed before me a large range of materials relating to your intellectual capacity, your mental state and/or make up. They included two older reports prepared in 2017 and 2019 for past Court appearances. Also a statement of intellectual disability from 2016 with some associated reports attached. There was a recent report from Ms Cidoni dated 12 October 2021. There was also a certificate of completion for a course you have done in custody as well as a letter from Caraniche as to counselling you have been engaged in and finally a useful letter from your mother’s partner, Mr King.
25 Ms Poole relied upon the following matters in mitigation:
· your early guilty plea in the midst of the global pandemic; (Worboyes[2])
[2]Worboyes v R [2021] VSCA 169; 96 MVR 344
· The presence of some remorse;
· Your disadvantaged background; (Bugmy[3])
[3]Bugmy v The Queen [2013] HCA 37; 249 CLR 571
· The impact of your intellectual disability upon the sentencing exercise and the application of some of the principles from the case of Verdins[4];
· The impacts of COVID-19 upon your custodial experience.
[4]R v Verdins [2007] VSCA 102; 16 VR 240
26 Whilst there is no burden on an accused to establish an exception under s5(2H) of the Sentencing Act 1991, (see Fariah[5]), your counsel accepted that none of those exceptions applied here. I agree and so I will not refer to them again.
[5]Fariah v The Queen [2021] VSCA 213
27 Ms Poole conceded the inevitability of a head sentence and one of a dimension requiring the fixing of a non-parole period.
Plea Harraghy
28 In your case Mr Harraghy, Mr Sturges conducted a thorough plea on your behalf. He informed me of those same things, your personal background including your educational, relationship, drug and employment history. He also made some submissions as to the relative gravity of your offending and as to your prospects of rehabilitation. He took me to the details of your brief criminal history. As brief as it was, he accepted it was relevant to my task. He also took me to some other criminal matters which are outstanding and he placed before the Court the relevant summaries which were marked as Exhibit 5 and your instructions as to which matters were actually contested and which were proceeding as a guilty plea. The prosecution had filed the remand summary that referenced some of those matters. That was Exhibit B.
29 Mr Sturges emphasised the significant differences in the charges as between the two of you and the basis of the charges you were facing and the very different background and prospects that you had.
30 He placed before the court a progress report from an alcohol and drug clinician Ms Telfer-Smith as well as a brief report from a counsellor
Ms Nielson. There were also four character references and they included one from your mother and one from your sister. Finally there was a CISP report dated 18 June 2021 dealing with your efforts on bail.31 Mr Sturges relied upon the following matters in mitigation in your case:
· Your admissions to the police and your early guilty plea in the midst of the global pandemic; (Worboyes[6])
[6]Worboyes v R [2021] VSCA 169; 96 MVR 344
· The presence of some remorse;
· The impacts of COVID-19 upon your custodial experience.
32 He conceded that the offending warranted a term of imprisonment. He was not suggesting that you had served sufficient time to date. He did though remind the Court that there was a period of up to 12 months' imprisonment available to combine with a suitably conditioned and onerous community correction order. He submitted that though this would be a merciful outcome indeed given the serious nature of the offending, that that outcome was open here and would achieve all the purposes of sentencing.
Prosecution
33 Ms Burnett, on behalf of the Director of Public Prosecutions had prepared some written submissions in each case dated 20 October 2021 in your case Mr Scandolera and 22 October in yours Mr Harraghy. They were marked as part of Exhibit A in each case. I see no need to simply slavishly repeat those various matters. Many of those submissions were really quite uncontroversial. There was seemingly no challenge to what are described as Bugmy or Verdins allowances in your case Mr Scandolera. The question was the weight and the Crown argued that on the Verdins limbs at least, that it should be quite slight. The Crown submitted that in your case Mr Scandolera it was a serious example of a serious offence of home invasion.
34 The prosecution was unsurprisingly calling for a prison term here and with a non-parole period. So much had been readily conceded by your own counsel, Ms Poole.
35 As to you Mr Harraghy, the Director of Public Prosecutions was calling for a head sentence and a non-parole period. They submitted that this was serious offending with some level of planning here. You played a critical role and were on bail at the time. You had observed, they said, how volatile
Mr Scandolera was and he was your partner in crime. Though you clearly had better prospects of rehabilitation than Mr Scandolera, the prosecution reminded the court that all the stability spoken of in your background has existed in the past. You offended in this way notwithstanding that and you are now back in custody having had your bail revoked. The Crown argued that a combination type order was not open here.Background - Scandolera
36 I turn then to your respective backgrounds. Yours first Mr Scandolera. You are 27 years of age. Your father is dead. Your mother is still alive and is supportive of you as the letter of Mr King makes plain.
37 Your parents separated when you were two. You relocated to live with your mother in Queensland and she re-partnered when you were perhaps three or four years of age. That new relationship was not a good one. You were removed from your mother’s care when seven years old and the explanation for that decision is set out in the materials before me. I am not going to descend into the fine detail of the unpleasant background that you had. There is much material as to your background contained within the various reports as well as the written outline. I have no reason to doubt the details of your personal and family background.
38 I have no difficulty at all in concluding that the Bugmy submission made on your behalf is made good. You have had a most unenviable background. There was real disadvantage in your developmental years, with exposure to alcohol, drugs and violence. You went into foster care for many years and from that quite young age. The fact is, those that should have been positive role models and looking after you, were anything but positive role models. You were introduced to drugs by those who had a duty to lead you away from them. There has been fragmented schooling, really the complete absence of positive role models in your developmental years and the absence of appropriate stability and guidance in those years. This in a setting where plainly, you already had some sizeable issues in terms of your own intellectual capacity and functioning.
39 So I have no doubt that yours was a background of disadvantage and dysfunction.
40 The fact is you were dealt a very poor hand. Whilst it is true that many years have passed, the fact is these things don’t diminish over time. They leave a mark. They explain a lot about the faltering trajectory of your life. It is hardly surprising that you have developed issues with drugs and that they have continued on as a major problem in your life for so many years. It is hardly surprising that you have been a repeat visitor to the Courts and to prisons. Nor is it that surprising that you might think violence is the way to sort out issues in your life. You were exposed to violence, or observed it being employed against your mother and others often enough. Well, to some extent our backgrounds shape our attitudes to these things.
41 So I do take into account your background in so far as I am able to. I give it full weight. As part of that recognition, there is some reduction in your culpability here. But you are not completely powerless here. You have choices, it’s just that you exercise them poorly. I note that very many efforts have been taken by the Courts to foster your rehabilitation and you have not taken those chances. It is true that the passage of time does not diminish the disadvantage of your background but factors such as specific and general deterrence and community protection must assume real importance in this case. Of course, your background is not going to become a satisfactory one once this case concludes. It does remain with you and it contributes to lessen your prospects of rehabilitation and to heighten the need to protect the community from you. It is sometimes forgotten that the Bugmy principles do not just all go in one favourable or mitigatory direction. I have considered and applied the recent restatement of these principles from the case of Jawahiri[7], which was delivered a few weeks back.
[7] [2021] VSCA 287
42 You have at least been doing some counselling and have completed one certificate whilst in custody so they are good things. It is pretty obvious from your criminal history that you have been caught up in a cycle over the last several years, one of unstable accommodation, drug use, offending, being imprisoned, being released and then winding up back in prison. That is so despite every effort being taken to provide some form of structure by way of a Community Corrections Order, either with monitoring or on occasion with a Justice Plan.
43 I do not ignore the fact that there is some support. It is an insightful and quite sad letter from your mother’s partner. I note also that the hearing was joined by Mr King, and by your mother and a stepbrother. Mr King speaks of the availability of a job and accommodation for you. Well that’s a positive but that job seems to be in the short term and I am afraid there is just no way you will be released in the short term from prison. Still I accept that there is this support. You have, it seems from Mr King’s letter, always yearned for some sense of belonging and of being valued and maybe there is some hope in that respect. It is though, a very long road back for you.
44 You have a very lengthy and relevant criminal history and it plainly does inform my task. I am not going to set it all out. There is no point in doing that. You know that you have been given very many chances by the Courts and you haven’t taken them. You have been sent to prison on a number of occasions for a large range of offences committed over the years. Your history includes a number of serious enough prior convictions including indictable injury offences, robbery and crimes of dishonesty. You were on a community correction order at the time of this offending having only very recently been released from prison on that combination type order. As I have said, you have been on community correction orders with the support offered by a Justice Plan or by monitoring.
45 I want you to understand that you do not fall to be sentenced a second time by me for any of that past offending. You have received those sentences and served them. But I do have to make judgments as to your prospects of rehabilitation and the need to both deter you and protect the community from you. The need for specific deterrence and community protection is really very clear in your case.
46 I turn then to your background, Mr Harraghy.
Background Harraghy
47 You have a very different sort of background. Again I see no need to set it all out. Very briefly then, you are now 28 years of age born in February 1993. You are the middle of three children and really, you have had the sort of stability that Mr Scandolera could really only dream of. Your parents are still together. You were educated to year 10. You have worked in a range of occupations as set out in paragraph [22] of the submissions. It has been a relatively decent employment record but you suffered a back injury back in 2019. I was told that you did some work whilst admitted to CISP bail on these matters. You have two children, two young boys, one your biological son, the other your ex-partner Sarah’s son from a previous relationship. The two boys live with your parents as their mother also has drug issues. You have had issues with drugs over many years. Ice became a real issue when you were 25 or so, and you were using on a daily basis, as at the time of these events. Your residence at the time of these offences was described by your own counsel as a ‘drug den’. You have also had issues with alcohol.
48 You have only two appearances before the courts but they are each relevant to my task. Each related to offences of violence. One on the sporting field, one in a domestic setting. I repeat what I said a moment ago to Mr Scandolera. You do not fall to be sentenced a second time by me for any of that past offending. You have served the two sentences which were imposed, but I do have to make judgments as to your prospects of rehabilitation and the need to both deter you and protect the community from you. You spent 8 months on CISP bail and it would seem engaged very well. There is a positive progress report from Kyle Miller dated 18 June 2021. As exceptional as your conduct was, of course your bail was revoked and you have been in custody since August this year. There are also the other two reports before me (Exhibits 2 and 3) which show that you had some commitment to rehabilitating yourself. I have your mother’s letter and the letter from your sister, which are also instructive. They also both joined the hearing and they have joined it again today. You obviously have a number of qualities. Like so many who use drugs, you become a very different person when you use drugs and when you mix with others who do.
49 I was told of the other matters outstanding. All but the matter of the informant named Creek are proceeding as pleas. So it is not just the two matters in your prior history in isolation. There are these other matters but I must say those offences are not at all surprising, given the sort of life you were leading at the time of the offences that I am dealing with. I put from my mind the Creek matter because that is proceeding at this stage as a contested hearing. That is a subsequent matter involving allegations of violence against a new girlfriend in August of this year and it is that allegation which led to your remand. But given that it is presently being contested it is not right to in any way treat that as some form of proven allegation in making assessments as to your future prospects or the need to give weight to deterrence or community protection. It has yet to be determined. So I must put that matter from my mind and I do. It is different however when I consider the various other matters, which are proceeding as guilty pleas. That includes a pretty extraordinary act of driving committed only a week or two after that favourable CISP report where you were travelling at around 175kmph in a 100 zone on 1 July 2021.
50 I turn then to consider the other matters raised by your respective counsel.
Guilty plea
51 The first of those matters is in each case your early guilty plea. It was entered at what I will treat as the earliest stage in each case and as a result there have been considerable savings. You have both taken this early responsibility for your offending. As a result, the time cost and effort of a committal hearing or trial has been averted. Witnesses, including your unfortunate victim, have been spared the experience of giving evidence. These are all significant matters.
52 You have each facilitated the course of justice.
53 Your guilty plea is worthy of extra recognition for the many reasons set out in the decision of Worboyes.[8] There is a mountainous backlog of cases waiting for a hearing in this Court. Well, your cases are not part of that ever growing backlog.
[8]Worboyes v The Queen [2021] VSCA 169
54 I take these various matters into account in mitigation.
55 Further in your case Mr Harraghy, well, you co-operated with police and that was in that you made admissions about your own conduct to the police in your interview. That was your choice and that was of value to you and I take that into account. Your counsel addressed me on this topic including at paragraphs [34] and [36]-[38] of his submissions. I mentioned on the plea that I accepted those submissions.
Remorse
56 Your counsel suggests you are remorseful, Mr Scandolera. Well if you are, there is little evidence of it. I can find nothing in the materials speaking directly as to remorse as one sometimes might find in a police interview for instance. You denied the offence in the interview or ‘no commented’ as was your right. You are said to be remorseful by Ms Cidoni but I don’t really know what she bases that on or the extent to which she factors in your account of your motivation for the offence, an account that I do not accept. So there really is no direct evidence of any substantial remorse in your case. However, given your early guilty plea, I am prepared to find that it evidences some limited remorse. I take that into account in your favour.
57 In your case Mr Harraghy, I have your interview as well as your co-operation with the police in that you made the admissions that you did about your own crime (see paragraphs [34] and [36]-[38] of the Defence Plea Submissions). I also have the early guilty plea as well as some references to the presence of remorse in the character references. That and the efforts you took whilst on CISP bail. I am prepared to find that you have some level of remorse. More than I can find in Mr Scandolera's case. Perhaps in your case it is accentuated by your knowledge of what ultimately happened to Mr Slattery. He was hurt in a way which really was beyond your contemplation. I take your remorse into account in mitigation.
Rehabilitation
58 I turn now to the prospects of rehabilitation in each case. As to your prospects of rehabilitation Mr Scandolera, well, they are not too good and nor does your counsel suggest they are. You have an extensive and long term criminal history. You have had no employment for a significant period. You have an intellectual disability. You have had very serious issues with drugs for well over a decade with very little success in dealing with that issue. As we can see from some of the reports placed before me, you have said often enough that the time is right for change and yet you do not change. Such steps as have been taken by the Courts to try foster your rehabilitation have almost invariably failed. As I have said, your disadvantaged background will not just evaporate. It is something that remains with you. So too your intellectual disability.
59 Ms Poole urged me to find that you have at least some reasonable prospects of rehabilitation.
60 You have been before the Courts on countless occasions over the years. You have been given many chances by the courts. You have not taken them. You have been sent to prison and that has not deterred you. You were dealt with for breach of a community correction order on 27 August 2020 at Dandenong Magistrates' Court and you received an aggregate of 180 days with 136 days declared, together with a fresh community correction order to take effect upon your release. That community correction order had treatment, supervision and monitoring conditions. You were released onto such an order and within a very short space of time were roaming at large with a meat cleaver committing this serious home invasion and physical attack within those premises.
61 You get out of prison and then you seemingly just reoffend. You are no longer a youthful offender. You are no longer some silly teenager. You are getting older. You are now 27 years of age and you have these long term issues with drugs and what is, as you know, a very poor track record before the Courts. I do accept that you have made some efforts in custody. You claim that you are trying to disassociate yourself from past criminal associates and plan to live out of the Dandenong area. Your statements as to what you intend to do upon release well, they are just that: statements. They are words. Words are easy enough. Can you really back it up with action? You may well mean what you say, I suspect you do, why would you want to go back and live the sort of live that you have been leading, I am sure that you do not. But these statements that you make in custody are easy enough to make and at least history suggests you have not been able to honour them with action. But perhaps this time might be different. I hope it is.
62 I do accept that there is some support available for you. You need a lot of support. You need a job and a home and structure and support from people. You need a sense of belonging which is perhaps something that you have never really experienced. For you to have any chance in the future you really need to completely change the way you live your life. You have enough issues in your life without adding to them by using drugs. You have no say in your level of intellectual functioning but you do have a say as to whether you use drugs. You must abstain from illegal drugs and that has been beyond you for many years. One would hope that this sentence will serve to deter you to a degree but past sentences clearly haven’t. This one will be far longer than those in the past and so perhaps it will serve to deter you. As I have said, your counsel argued that I should find that you have reasonable prospects. The Crown argued I could really only be guarded here. Well, I am afraid I have no reason for any great optimism in this case. I think you do have some prospects. I certainly won’t write you off, I don’t want you think I am, but if pressed to apply an adjective, from where I sit today, I could only describe those prospects as really quite poor. I hope I am wrong.
63 Having assessed the materials, in my judgment you pose a sizeable enough risk of reoffending and in a violent fashion and I am satisfied of that beyond reasonable doubt.
64 In your case Mr Harraghy, there are reasons to be a good deal more optimistic. Having said that, you don’t have anything reducing your culpability for this offending. You don't have an intellectual disability. You don't have a background of significant disadvantage, such as Mr Scandolera. You have a far more stable background and grounding in life. You have a decent enough employment record. You have a supportive family. In a way it is puzzling that you sit where you sit in the dock. I am sure that drugs have brought your life undone, as they do to many people. You have a far less significant criminal history. It is far shorter and it does not include breaches of Court orders. It is still relevant containing as it does matters of violence but there are no matters personal to you in your developmental background or in your present mental health predicament which would impede your rehabilitation, so that is a positive. There is also the deterrent effect of being held in prison for you. Unlike Mr Scandolera, it is your first experience of prison and not a pleasant one at all given the limitations in play amidst the COVID-19 pandemic. You did very well on the CISP bail until it was revoked. You mother and your sister comment on your improvements whilst on bail.
65 Against that of course, you were taking a significant enough role in what you must have known was serious criminal offending. You intended that there be an aggravated burglary with an unwelcome entry to assault this man in his home, albeit, not with weapons. It was serious criminal conduct. You have these longstanding issues with drugs and I do sense that the drug use and the drug milieu you lived in at the time had a large role to play in this very poor choice which you made and your descent into crime. As I said earlier, you were living in what could only be described as a drug den and were very much out of control. Daily drug use was the norm for you. You have taken some real steps whilst on bail to address your drug and other issues. Then though, of course, your bail was revoked. You have pleaded guilty at an early stage and you have a level of remorse and this signifies to me that you are someone not wishing to return to the life which you were leading at the time of these events. You have professed the strong hope not to head back in that direction, to leave drugs behind you. Well, they are words, that is what they are. Actions will speak louder than words and we will see what happens upon your release. The fact is, abstinence from drug use is however a very big if in your case as well. It has been a major problem for you for some years. If you do not abstain from illegal drug use, your prospects will dip very sharply. You have seen how low you can actually sink when using drugs. However, having considered all the matters before me touching upon your prospects of rehabilitation, I am more upbeat as to your prospects than those of Mr Scandolera and judge that your prospects are quite reasonable, subject to abstaining from drugs of dependence into the future. There is plainly in your case a lesser risk of reoffending.
COVID-19
66 In each case, your respective counsel relied upon the impact of the COVID-19 pandemic upon your experience in custody. I accept the submissions that were made in that area.
67
I do accept that the COVID-19 virus and the response to it by those running the prisons has increased your prison burden in each case. Prison has undoubtedly been a more stressful environment in the time that you have been there to this point. You Mr Scandolera have been in custody since December of last year. You returned to custody far more recently
Mr Harraghy.
68
Social distancing has not been easy there. No doubt there has been worry about catching the virus in such a setting where, unlike someone in the community, there is no level of autonomy. I was told that for you
Mr Scandolera, there have been frequent lockdowns as well as really a blanket restriction to visiting in the period in which you have been held owing to COVID-19. That does not accord with my knowledge of the COVID limitations but I suppose it is possible there may have been some other reason from time to time limiting your visitors. It doesn’t actually matter. I am prepared to act on the submission that for whatever reason, you have had no visitors and that level of isolation makes custody tough, that is so whether produced by COVID-19 or for some other reason, such as a form of custody management. There would have also been a COVID-19 driven limitations affecting the full range of courses and programs (see paragraphs [14](e) and (f)).
69
It has not been a good time for you to wind up in prison for the first time
Mr Harraghy given the restrictions in play since you have been there. No visits at all in that period and reduced access to courses. Also entering quarantine upon your reception in August. It is a pretty rocky start.
70 The fact is it has not been a good time for either you to be locked up and I take that into account.
71 What lies ahead for either of you in the future is really a matter of guesswork. I cannot guess. I do take into account that it seems likely that these restrictions will continue into the future at least in the short term. That will also produce worry and uncertainty and no doubt some limitations. But I cannot speculate about how long restrictions on visits to prisoners will be employed into the future. We are starting to open up in the community owing to the increased vaccination rate and presumably, the restrictions in a prison setting will lift in due course. I can’t say when that will happen but those administering prisons can make judgments themselves as to the extent to which these things need to be addressed by emergency management days being declared in your particular cases. I can’t take that possibility into account and I don't. Nor though can I guess about what lies ahead for you by way of ongoing restrictions. But I do accept that there will be at least some increased burden into the future.
Verdins
72 Your counsel, Mr Scandolera, relied upon a number of limbs from the case of Verdins. The submissions developed over the course of the plea. Ultimately, she submitted that the 1st , 3rd , 4th and 5th limbs had some role to play. At one point she raised the 6th limb but withdrew that submission and accepted that there was no evidentiary support for that limb. She was not suggesting there was any sizeable reduction in play here. Now there is a wealth of material documenting your make up, your intellectual capacity, your personality style and a litany of past diagnosis’. Some reports challenge the existence of a diagnosis made earlier. But a pretty common thread throughout all of the materials is that you function at a low intellectual level. It is described in a variety of ways and I don’t descend to the detail of those descriptions. Differing terms are employed by the various experts. When I view all of this material including the statement made under the Disability Act, it is clear enough that whatever adjective is employed, you do actually have some form of intellectual disability or cognitive limitation and you always have. There are significant deficits in your functioning and adaptive behaviour and they predate your 18th birthday. No doubt, there have been various other potential insults to your capacity, with for instance drug use raising at least the suspicion of an acquired brain injury as well.
73 It was to the ‘intellectual disability’ that your counsel addressed her Verdins submissions. That was the condition relied upon, not the very many others discussed or hinted at in the reports. These Verdins submissions were not meaningfully challenged by the Prosecution. They argued it was a matter of what weight to give to these matters and that the weight should be but slight.
74
I have reports from 2016, 2017, 2019 and the most recent report from
Ms Cidoni. Also, the material attached to the Disability Act Statement. I do not see any useful purpose in setting out all of this material. I accept that you have an intellectual disability. I accept that in this area, the need for an opinion as to causation is really far less pressing (see Muldrock[9]). You have this condition with you always and it impacts upon your decision making and choices. The statement of intellectual disability is predicated on significant deficits existing. You have an inherently reduced capacity to exercise appropriate judgment. That is just the reality. I accept then that there is some modest reduction in your culpability. Why only modest? Well your counsel was not submitting there should be any significant moderation here at all. She recognised the difficulty in untangling the other contributions. Here, you were using ice and GHB. Drugs themselves have a significant disinhibiting effect. People make dreadful choices when using drugs and that is not limited to people with intellectual disabilities. Your co-accused for instance has no intellectual disability and was using drugs. He made a terrible choice.
[9]Muldrock v The Queen [2011] HCA 39; 244 CLR 120
75 There are also some real limitations to Ms Cidoni’s report. She acts to some degree on your account of the motivation for attending at the victim’s home. That you were targeting that person owing to your beliefs in his being sexually involved with a young girl. This produced anger and disgust it is said (see paragraph [9]). You decided to deal with the behaviour yourself. Well, I put your counsel on notice that I could see no material at all supporting your account and much really which did not. By the way I don’t in this regard take into account your co-accused’s explanation which runs quite counter to yours. I take that into account in his case not yours. But in your case, there was no mention of the motivation as you committed the offence, no warning off of Mr Slattery, and I have a victim who to this day does not understand why he was targeted and the complete silence in your interview on this topic. Your motivation is raised with Ms Cidoni, 9 or 10 days before the Plea. Also I could not see how the first offence of assault and then theft in the hallway connected up with this motivation. I asked your counsel to provide further details of your explanation, who for instance this young girl was and the setting of your getting wind of that fact. She could not provide any further information to the court. In any event I asked your counsel as to whether she was going to go into evidence on this topic. She has chosen not to call you. I am not satisfied on the balance of probabilities of your account as to this motivation at all. I do not know what your motivation was. What dysregulation then is Ms Cidoni really talking about in paragraph [69] of her report? Whatever she is referring to, she says it arose from a combination of factors: drugs, low IQ and “mental illness”. I asked Ms Poole what that mental illness was? It was not clear to me at all and it was not specified and Ms Poole withdrew any reliance on that last portion of that opinion. So, we are left with drug use and an intellectual disability and whatever else actually prompted this attack. Plainly enough on the materials, you were standing over this man and I am not satisfied of your explanation on the balance of probabilities. It really makes it quite difficult for me to deal with these contributing factors but it is clear that the intellectual disability is something always with you. I am prepared to accept the Verdins submissions. There is some reduction in your culpability, over and above the Bugmy reduction I have already allowed for and, I must say, at a level greater than the slight reduction urged upon me by the Crown. There is some moderation of the weight given to specific and general deterrence. That is pretty modest in each case. Finally, I am prepared to find that there is some increase in your burden of imprisonment arising from this condition. Your past experience of custody and the older report prepared in relation to that is still as far as I am concerned valid given the persistence of the condition described in that earlier report.
76 As against all of this though, in so far as it is said your intellectual disability has played into or contributed to the offending, that same disability also to an extent increases your risk of reoffence and in my judgment heightens the need for community protection.
The Offences
77I must pay regard to the nature and gravity of the offences before the court. Now of course I am dealing with different offences and differing culpability given the way the case settled in your case Mr Harraghy. I am not going to keep going back to that paragraph in the opening in your case setting out the basis of the settlement in your case. I don’t lose sight of that fact. I act on it. It is still accepted that yours was serious offending.
78The manner of assessing the seriousness of a home invasion is well established (see O’Brien[10]). It draws on those cases dealing with the assessment of the seriousness of confrontational aggravated burglaries. So cases such as Hogarth[11], Meyers[12] and Bowden[13]. In your case Mr Scandolera, this was undoubtedly a serious example of a home invasion. Entry with intention to assault someone within their home, a raiding party driving from A to B, so significant enough premeditation here, the carriage of a pretty fearsome weapon and a kicking in of the door. Not much comfort that it was not in the early hours. Your victim was asleep and two offenders entered his accommodation. You had monstered this man several hours earlier in the hallway in Clow Street.
[10]Director of Public Prosecutions v Shane O'Brien [2019] VSCA 254; 280 A Crim R 1
[11]Hogarth v The Queen [2012] VSCA 302; 37 VR 658
[12]DPP v Meyers [2014] VSCA 314; 44 VR 486
[13]DPP v Bowden [2016] VSCA 283
79 Your counsel made submissions about matters which were absent from this example of home invasion. For instance, she argued it was not protracted and you voluntary desisted. Each is true and neither are of great importance in assessing the gravity of the home invasion. It was as swift as it needed to be. It was a startling entry followed by a startling physical attack. The absence of some matters of aggravation does not reduce the actual seriousness of the matter before the court. There are enough aggravating features present here, that is for sure. I have to sentence you for the crimes you have committed, not the crimes that might have been committed in a different fashion.
80 It is in my judgment a very long way removed from a low level offence. Your counsel was not by the way submitting that it fell at a low level though she seemingly baulked at it being described as a serious example. Well, I suppose one can always imagine worse examples of a crime. But, if this home invasion isn’t a serious example of the offence, I don’t know what is. This was, as I have said, in my judgment, a serious example of home invasion committed by a man with a lengthy and relevant criminal history and whilst on a community correction order.
81 A trespasser in company with another intruder, kicking down a door and storming in to assault and then committing the offence the subject of Charge 2. Multiple swings of a machete at the victim’s head with one striking home. Really it is the stuff of nightmares when you think about it.
82 Not every home invasion leads on to other offending. Some do. This one did, in your case Mr Scandolera, and that offence was itself a serious crime. It was a serious enough example of intentionally causing injury given the setting and the nature of the weapon employed and where it struck. It was a pretty fearsome blow to the head with a meat cleaver causing an injury requiring hospitalisation. All of it delivered to a totally defenceless, outnumbered male lying in his own bed. You were fortunate indeed not to have more seriously injured this man or worse. I am not dealing with you for serious injury. That is really purely a matter of good luck for him and for you actually. It is no low level example of intentionally causing injury by any stretch of the imagination. Your counsel submitted it was a serious example and she was right. The setting for this crime was in a place your victim should have been safe, being his home. It was a serious separate crime. The drug offence and the theft are obviously far less serious and of course so too the earlier summary assault. However, it must be said the assault preceded the theft. It follows you stole the property from the person you had assaulted a short moment before. For whatever reason, robbery has not been charged here. But I cannot remove from the setting the true context. A nasty enough summary assault leading in to the theft of the victim's bike by a man with relevant prior convictions for dishonesty and violence offences and whilst on a community correction order.
83 Now in your case Mr Harraghy though you are not facing the same charges as Mr Scandolera, it was still serious offending. You contemplated a confrontational aggravated burglary. The Court of Appeal in this State has spoken often enough and loudly enough as to the seriousness of that style of entry and that is so whether it is charged as a home invasion or charged as an aggravated burglary as it is in your case. I mentioned earlier the case of Hogarth which spoke of the seriousness of confrontational aggravated burglary. That case was picked up and discussed in those cases I mentioned earlier, the cases of Meyers and Bowden.
84 In those cases, the Court of Appeal set out some of the non-exhaustive considerations relevant to an assessment of the seriousness of the offence. They included matters such as:
·the offender’s intent at the point of entry (whether to steal or commit assault or cause damage’);
·the mode of entry (e.g. by forcing a door or breaking a window);
·whether the offender was carrying a weapon;
·whether the offender was alone or in company;
·the time of day at which the burglary took place;
·what the offender knew or believed about who would be inside and/or about where the person(s) would be; and
·whether the offender was someone of whom the victim was particularly frightened.
85
Well, you set out to join a confrontational aggravated burglary. That was what you contemplated. You were playing a key role. You were the driver. One of the players that you were driving to join you in the offence was
Mr Scandolera, someone you had seen monster Mr Slattery in the earlier assault in the hall earlier that very day. He was out of control. You had your own motives for wanting to pay Mr Slattery a visit. You were concerned about his conduct with your girlfriend. He also owed you a drug debt. So, an in company offence was contemplated by you. That is, an aggravated burglary with intent to assault and entry was obtained by force. You were in it up to your neck. You were one of three men going to that location. There was obvious premeditation. You were driving the other two there and you all got out at the scene. It was too late to be squeamish once you saw the meat cleaver. Though you are not fixed with the knowledge of that weapon and hence the nature of the actual attack that took place or entry with that object specified (indeed you did not ultimately enter the premises), the fact is you contemplated a nasty enough joint assault upon this man in his own home.
86 You knew of Mr Scandolera’s state of unpredictability. You knew of his agitated state on this day. You had been pulling him off Mr Slattery in the earlier assault. You knew of his desire to beat up Mr Slattery and, as you said, possibly to take his belongings. You also told the police of an earlier event that I mentioned, that is an event that you had attended with him which went awry. What did you contemplate on this particular day? Well, a physical beating up of Mr Slattery with the superior numbers important to that event. You made up those numbers. What took place was worse than you contemplated. What you were complicit in though, was certainly no minor example of aggravated burglary. Despite your counsel’s claim in his written submission, there is no reduced culpability here for your crime. Ultimately, Mr Sturges accepted that was so. I am not by the way saying it is irrelevant that you desisted. It is just as well that you did. Had you not done so, had you not turned around and gone back to the car, you would undoubtedly be facing a more serious charge relating to the entry and likely the additional charge relating to what took place after entry. Your turning away once you saw the weapon does not however impact upon the assessment of your culpability for the offence you contemplated. Unlike your co-accused, you have no Verdins or Bugmy factors at all. No reduced culpability. Your culpability was not low at all here. In fact, it was relatively high. It is not in any way reduced by your having used ice on the day of the crime.
Purposes
87
I have to consider a number of purposes of sentencing. I must pay regard to your respective prospects of rehabilitation. I don’t ignore that purpose in either case but your prospects, as I have said, are really quite poor,
Mr Scandolera. Rehabilitation surrenders sizeable ground to other purposes of sentencing, including deterrence and community protection in your case.
88It is a more optimistic picture in your case, Mr Harraghy.
89I must punish you both justly and proportionately. Punishment is important here.
90I must also denounce your conduct in each case. Again, that is important.
91 Community protection, is a matter of importance here. It must be adequately reflected in each case. To travel to this man’s unit to assault him, to enter with intent to assault and in your case, Mr Scandolera, to take with you and then use a meat cleaver to swing into a defenceless person’s head, it says a fair bit about you and the need to protect the community from you. It is and must be a sizeable purpose of sentencing in your case. It is still of some weight in your case as well, Mr Harraghy. It is afforded less weight owing to my more favourable view of your prospects into the future.
92
I must pay appropriate weight to deterrence, both general and specific. There is the need for this court to seek to deter you and others from offending in the future. Each are important enough purposes here. That is so despite the relatively modest Verdins reductions in your case,
Mr Scandolera.
93Specific deterrence relates to the need to deter you and is of real importance in your case, Mr Scandolera. I must try, as many judicial officers have before me, to deter you from future offending. It is an important purpose of sentencing in your case, Mr Scandolera.
94
It is less important but still relevant and of some weight in your case,
Mr Harraghy. You were on bail and have prior criminal history for violent offending and this offence represented a real escalation. You had no factors beyond your control such as a disadvantaged background or mental health issue or condition contributing to this decision to offend. So I must try to deter you. It stands to reason though, that less weight is applied to this purpose owing to my more favourable conclusions as to your prospects of rehabilitation and risk of reoffence.
95General deterrence relates to the need to deter others. That is a significant sentencing purpose in each case and again that is so despite your intellectual disability, Mr Scandolera.
96The Courts must convey the message through the sentences imposed that substantial prison sentences will be imposed on those who choose to commit crimes such as these. I am speaking of the home invasion and the intentionally causing injury in your case, Mr Scandolera, and the aggravated burglary in your case, Mr Harraghy.
97I must have regard to the maximum penalties as well as the impact of your crimes.
98I must pay regard to current sentencing practices. That is not a single controlling factor.
99I have looked at the relevant portions of the Sentencing Advisory Council’s online data for examples of sentences imposed for the home invasion charge. There is no Judicial College of Victoria sentencing snapshot for this crime. The most common sentence in the period covered by the statistics fell in the range between three and four years. At the higher end, that would represent less than a 6th of the maximum penalty. I have also looked at the relevant portion of the Judicial College of Victoria's sentencing manual dealing with sentences imposed for this crime (see 6.14.1 and 6.14.2). The case of O’Brien is of some use to me. An offender with some excellent plea material and no relevant criminal history was dealt with by a combination type order in this Court which on a Directors’ appeal to the Court of Appeal resulted in a six year term being substituted. What is far more important though than the actual outcome are the strong statements from the Court of Appeal in that case and many other cases as to the need for sizeable penalties for this sort of crime (or for that matter, for confrontational aggravated burglaries). I have also looked at the actual sentencing snapshots and relevant sections of the Judicial College of Victoria sentencing manual dealing with intentionally causing injury as well as aggravated burglary. I have looked at Snapshot No. 237 of 2020 for aggravated burglary and No. 240 of 2020 for intentionally causing injury. The most common sentence for aggravated burglary falls in that same range of between three and our years. I have also looked also at the relevant portion of the Judicial College of Victoria sentencing manual for examples of intentionally causing injury and aggravated burglary sentences.
100Having done all this though, I say the following - no amount of looking at statistics or other sentences imposed upon other offenders will dictate the appropriate sentences to be imposed upon either of you. The fact is other cases are not precedents and there is no such thing as one correct sentence.
101Statistics have inherent limitations. It is no part of my job to sentence either of you in accordance with what has been the most common or average outcome in the past.
102What I have to do is to pass appropriate sentences in each of your cases, and I have to take into account the nature of these crimes and your background and the various matters raised in mitigation in your respective cases. These are the sorts of things which are simply not disclosed in the statistical data.
Parity
103 I apply as I must the principle of parity of sentence to my task. As a general proposition, like offenders ought receive the same or at least similar sentences. The principle is designed in large part to avoid a justified sense of grievance between co-offenders. This is something of a gross simplification of the principle but will suffice for present purposes. All things however are seldom equal and they are clearly not here. I have in these reasons to this point already, spelt out many of the differences between the two of you and I am not going to mention them all again now. I shall mention just some of the matters.
104 For a start, I have differing charges. I have the differing liability as spoken of in paragraph 3 of your summary, Mr Harraghy. That is important. You are not a party to an armed home invasion or assault within with a weapon. You were an important enough player in what you believed was a confrontational aggravated burglary with entry with intent to assault and use of force but not with a weapon. You desisted when it looked to be heading in a more serious direction. So your offending is less serious, Mr Harraghy. You do not face an injury charge. You do have a car theft charge.
105
When looking at matters personal to you, you were of a similar age the two of you but there are differences in each direction, not all in your favour actually, Mr Harraghy. You have, as I have said, no reduction in culpability arising from a disadvantaged background or intellectual disability. You came from a stable home environment and were not intellectually disabled. So there is no reduction in culpability, there is no moderation of specific and general deterrence arising from these various considerations I have spoken of. There is no increased burden arising from a mental health condition in your case. You, at the time, were on a community correction order
Mr Scandolera. You were on bail Mr Harraghy.
106 But you Mr Harraghy are plainly in a better position in terms of risk of reoffence, and hence there is some moderation of the weight given to protection of the community and specific deterrence in your case. You have a very short criminal history and have what I judge to be significantly better prospects of rehabilitation into the future.
107 All things are decidedly not equal here. You must do a good deal better than Mr Scandolera by way of sentence. That is I am sure obvious to us all. I hope that is obvious to you as well, Mr Scandolera. At the end of the day though, I suppose I can’t stop you from holding unjustified grievances. I am taking a bit of care explaining these things so you Mr Scandolera will understand why you will do a good deal worse than Mr Harraghy by way of sentence. I have done what I can to explain why there will be these differences.
108 I have taken into account all of the submissions made by your respective counsel and by the prosecution.
109Prison is a disposition of last resort but is plainly warranted here. That is conceded in each case. I do not have available a combination type order in your case Mr Scandolera. None of the exceptions arise on the materials. The fact is even if they did, such an outcome could not be in any way realistic given the seriousness of your offending and the nature of your past history before the courts. It is inescapable given the seriousness of two of the crimes that there must be a substantial prison term imposed upon you.
Totality
110I must consider whether the effect of the sentences is just and appropriate and commensurate with your overall criminality. These offences all occurred in a tight time frame. In your case, Mr Scandolera, the summary assault was many hours before the later conduct. So too the theft of the bike. Here there was separate criminal conduct with differing timings, elements, acts and impacts. The home invasion is the most serious offence but the intentionally causing injury offence is itself a serious criminal offence. The sentence imposed on the intentionally causing injury cannot just be subsumed by the sentence imposed on the home invasion. That would be quite wrong. There must in fact be some quite meaningful cumulation recognising the separate serious criminal conduct which the use of that meat cleaver involved once you had entered these premises.
111I must consider the same principles relating to totality of sentence when dealing with you as well Mr Harraghy. The theft of the car was really a quite separate crime, although occurring on the same day and in the factual setting described. There plainly must be some cumulation. All of this offending occurred whilst you were on bail. I am treating that as a matter of aggravation. It follows that to also cumulate sentences purely as a result of s16(3C) would be to doubly punish you, so I won’t do that. That provision does not oust the application of principle of totality.
112In your case it is argued that I had available a combination type sentence. That is a term of imprisonment with your ultimate release onto a community correction order. Your counsel recognised it would be a merciful outcome indeed, given the seriousness of the aggravated burglary but spelt out to me the availability of a period of up to 12 months' imprisonment to combine with the community correction order. If I believed such an outcome could achieve all the purposes of sentencing, I would be required to proceed in that fashion. That is because a Court will never impose a more significant or onerous sentence than is required to achieve the actual purposes of sentencing in the given case.
113It is plain to me having reviewed all the materials that such an outcome could not give anything like adequate weight to deterrence, denunciation, punishment and community protection. To contemplate such an order, you would need to be in a position to commence a community correction order within 12 months and that is also, in my judgment, an impossibility given your offending and the limited pre-sentence detention available here. I have no option but to impose individual sentences, mark out a measure of cumulation and to then fix a non-parole period in your case.
114I have taken a last look at the sentences imposed in each case to guard against the imposition of a crushing sentencing outcome.
Ancillary Orders - Scandolera
115There are two ancillary orders sought in this case, one of them a forfeiture order and one a disposal order. Each of them are consented to. The disposal order relates to the drugs that is sought pursuant to s78 of the Confiscations Act. I have signed that order. I am satisfied that the conditions exist for the making of the order. I order pursuant to s78 of the Confiscations Act the forfeiture to the State of that property referred to in the schedule. I direct that it be handled and dealt with in the manner contemplated by the signed order.
116Likewise there is a forfeiture order made under the provisions of s33 of the Confiscations Act. There is consent or lack of opposition to the making of the order. I am satisfied it ought be made and on that charge and pursuant to, s33 of the Act the property referred to in the schedule is likewise forfeited to the Minister.
117I am sorry to have taken so long to get to this end point. Normally I would have you stand up, Mr Scandolera. I will not though, just remain seated, we are doing this by way of the internet which I must say I would much rather you be present in court physically but we just cannot do that at the moment.
SENTENCE
Scandolera.
118On Charge 1 home invasion, you are convicted and sentenced to a period of 5 years 2 months' imprisonment. That will be the base sentence.
119On Charge 2 intentionally causing injury, I convict and sentence you to 3 years 3 months' imprisonment
120On Charge 3 possession of the drug of dependence, you are convicted and sentenced to 2 days' imprisonment
121On Charge 4 the theft of the bike, you are convicted and sentenced to 3 months' imprisonment,
122
On the related summary assault, you are convicted and sentenced to
2 months' imprisonment.
123The base sentence is therefore the 5 years 2 months' imprisonment imposed on the home invasion.
Cumulation
124I direct then that
·1 month of the sentence imposed on the summary assault;
·1 month of the sentence imposed on the charge of theft; and
·14 months of the sentence imposed on the intentionally causing injury charge;
are to be served cumulatively upon the base sentence and upon each other. The sentence imposed on the possess drug offence will be served concurrently with all other sentences.
Total Effective Sentence
125These orders result then in a total effective sentence of 78 months or six and a half years' imprisonment.
Non-parole period
126I am required to fix a non-parole period. I am not allowed to speculate as to whether you will be released on parole. That decision will rest in the hands of the Adult Parole Board. It will be between you and them and I have no role in that decision.
127I direct that you serve a period of 4 years 3 months before becoming eligible for release on parole.
Section 18
128 You have spent already the period of 326 days in custody by way of pre-sentence detention and that period is declared as having already been served under this sentence. You get credit for that.
Section 6AAA.
129
I have taken into account your guilty plea. If you had pleaded not guilty and been found guilty of these offences by a jury, I would have sent you to prison for eight and a half years. I would have fixed a non-parole period of
6 years 3 months. That statement is also to be entered into the records of the court.
Sentence Mr Harraghy
130Now to you Mr Harraghy.
131On Charge 1, which is the charge of aggravated burglary, you are convicted and sentenced to three and a half years' imprisonment.
132On Charge 2, the charge of motor vehicle theft, I convict and sentence you to 8 months' imprisonment
133On the related summary offence of committing an indictable offence on bail, you are convicted and sentenced to 7 days' imprisonment.
134The base sentence is therefore the three and a half years imposed on the aggravated burglary.
Cumulation
135I direct that 3 months of the sentence imposed on the theft charge is to be served cumulatively upon the base sentence.
136The sentence imposed on the summary offence of commit an indictable offence on bail charge will be served concurrently.
137I am to this extent then otherwise directing under s16(3C) of the Sentencing Act.
Total Effective Sentence
138This results then, in your case, to a total effective sentence of 45 months or 3 years 9 months' imprisonment.
Non-parole period
139I am required to fix a non-parole period in your case, given the dimensions of that sentence. As I said in the case of Mr Scandolera, I am not allowed to speculate as to whether you will be released on parole. That will rest in the hands of the Adult Parole Board.
140I direct that you serve a period of 2 years 3 months before becoming eligible for release on parole.
Section 18
141 You have spent already the period of 73 days in custody by way of pre-sentence detention and that period is declared as having already been served under this sentence so you get credit for that pre-sentence detention.
Section 6AAA.
142
I have taken into account your guilty plea. If you had pleaded not guilty and been found guilty of these offences by a jury, I would have sent you to prison for 5 years 8 months. I would have fixed a non-parole period of
4 years. That statement is also to be entered into the records of the court.
Licence order
143 I must make a licence order in your case owing to the nature of the theft charge, relating as it does to a vehicle. Motor vehicle theft carries a mandatory licence order under the provisions of the Sentencing Act. A licence order is both punitive but also protective. On that score this is not one of these cases where I’m dealing with extraordinary driving conduct where there might be some sound basis to tailor the licence order so it is waiting there for you upon your ultimate release. I have in fact considered whether I should make an order under s89A of the Sentencing Act in relation to the aggravated burglary charge given the critical role the vehicle played in that crime. I have decided not to. Ultimately, I have decided to make an order only on the theft charge and not to tailor the order to coincide with your release.
144 On Charge 2, the charge of theft, I cancel all licences and I disqualify you from obtaining any licence or permit and from driving in this State for a period of 12 months effective from today.
145Let me see if there are any other matters that I need to deal with. Firstly from you, Mr Liaw, are there any matters that I need to further pronounce?
146MR LIAW: No, that looks like it covers off all the required orders, Your Honour.
147HIS HONOUR: Ms Poole, any other matters I need to deal with?
148MS POOLE: No, Your Honour.
149HIS HONOUR: Mr Sturges?
150MR STURGES: No, Your Honour, thank you.
151HIS HONOUR: I will get these reasons, no doubt, they are very lengthy. As I say, I am sorry it has taken so long to get through them. No doubt each of you will need to communicate with your clients and discuss what's occurred here today and discuss their rights in relation to the sentences that have been imposed. I will get these reasons back from VGRS I would think within a handful of days, probably mid next week I imagine given the fact that we've got a public holiday and maybe even a long weekend for many. But once they are revised, I will get them across to the various parties.
- - -
10
0