Director of Public Prosecutions v Seiler
[2023] VCC 207
•16 February 2023
| IN THE COUNTY COURT OF VICTORIA AT BALLARAT CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-22-01567
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ZAINE SEILER |
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JUDGE: | HIS HONOUR JUDGE GUCCIARDO |
WHERE HELD: | Ballarat |
DATE OF HEARING: | 25 November 2022 |
DATE OF SENTENCE: | 16 February 2023 |
CASE MAY BE CITED AS: | DPP v Seiler |
MEDIUM NEUTRAL CITATION: | [2023] VCC 207 |
REASONS FOR SENTENCE
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Subject: Criminal Law. Sentence upon plea of guilty.
Catchwords: Armed Robbery – young offender - covid-19 delay – drug and alcohol
abuse – no evidence of remorse and regret – traits of antisocial
personality disorder and lack of empathy for the victims – Bugmy
principles.
Legislation Cited: Sentencing Act 1991.
Cases Cited: Worboyes v The Queen [2021] VSCA 169 – Azzopardi v The Queen
[2011] 35 VR 43 - Boulton v The Queen [2014] VSCA 342; Buckley v The
Queen [2022] VSCA 138.
Sentence: Total effective sentence of 10 months imprisonment followed by a
community corrections order of 2 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms D. Caruso | Ms C. Eckersley |
For the Accused | Mr D. Hunter | Mr A. Mitra |
HIS HONOUR:
1Zaine Seiler, you have pleaded guilty to one charge of armed robbery. The circumstances of your offending are outlined in a prosecution document which was exhibited on your plea, which summarises them. It may be briefly recited.
2On 26 March 2022 at about 4.20 pm the victim, who was a 13-year-old boy at that time, was sitting at a bus stop outside a shopping complex in Wendouree. He was with four friends: two young girls, aged 13 and 14; and two young boys, aged 13 and 14 respectively.
3You exited the shopping centre and walked over to them at the bus stop. You began to speak to the victim and asked how much he was selling the Nike cap he was wearing. The victim replied, 'I'm not selling it'. You then produced a small hunting knife with a silver blade and a wooden handle from your right sleeve and demanded the hat, saying, 'You have two seconds to kick it over'. You then snatched it from him and ran back through the car park into the shopping complex, where you met up with another male and an unknown female where you handed in the cap. He concealed it under his clothing. The victim reported the matter to police in Ballarat.
4Police sought and obtained relevant CCTV footage from the shopping complex and as a result identified the person to whom you had handed the cap. They went to his address to search those premises and spoke to him and the cap was found under his bed. He identified you as the person who had taken the hat.
5On 30 March you attended at the Ballarat police station in relation to an unrelated matter. You were identified as the offender in the armed robbery. You were charged and bailed. You made no comment in your interview.
A committal mention was adjourned three times in June and July 2022 and on each occasion, you failed to appear and a warrant issued on 7 August and you were remanded when arrested.6The bail application was withdrawn at the time that you were committed on a straight hand-up brief and you indicated a plea of guilty. The plea proceeded before me on 25 November 2022.
7Armed robbery is a serious criminal offence carrying as it does a maximum penalty of 25 years' imprisonment. It is an offence which can occur in a variety of circumstances, which sit on a broad spectrum of objective seriousness. Your offending, in my view, lies towards the lower end of such a spectrum. However, that is not to devalue some of its aspects which are nevertheless serious.
8Your victim was a young person who was entitled to go about his day without threat of violence, fear or force. You armed yourself with a knife and acted in public in a brazen and aggressive manner in daylight. He was a vulnerable victim and you took advantage of the circumstances to steal a cap by the use of a knife. It is cowardly, shameful behaviour. When asked if you had any comment on the victim's age you answered, 'Nah', and any comment on the victim, you had nothing to say when asked how you thought he might have felt, probably because you had no insight into the fear you caused him. You answered with no comment answers except at one point to say the circumstances to which you have now pleaded were a load of bullshit.
9This kind of offending is of concern to the community for the terror and fear it causes, its prevalence and it looks to the court to deter likeminded individuals and punish justly offenders who behave in this way, to denounce their conduct and protect the community from such wanton criminality. The court did not receive a victim impact statement, but I conclude reasonably that the young victim would have been impacted by the threat and aggression offered, particularly the production of the knife, and that such impact would not be just momentary but relatively ongoing.
10The offence was not entirely spontaneous. You had a knife with you and you had been asked by another male to do it some time before. There is no evidence that you armed yourself for this purpose as opposed to you having carried a knife for your own reasons on that day. The fact remains that you then produced to the target victim a knife and robbed him whilst brandishing the weapon. There was a measure of premeditation in this action and your moral culpability for the offending is accordingly substantial.
11I take your plea into account despite your failure to appear twice at committal mention and being arrested on warrant. You were committed on a straight hand-up brief and you pleaded guilty, being the earliest opportunity before a court. The plea will reduce your sentence. The plea has a utilitarian value of having avoided a criminal trial. Further, it was made at a time of pandemic when the criminal justice system has been severely impacted and which has delayed justice outcomes. The plea therefore facilitates the delivery of justice in resolution of this matter. It was made at a time at which the prospect or likelihood of reclusion was also impacted by the pandemic and your consequent remand has meant that the flow-on effect of the pandemic on correctional services has also been severely affected.
12The court then, pursuant to Worboyes, should and will assign a more palpable and evident reduction in recognition of the time of the plea during a time of much greater isolation, lockdowns or restrictions and limitations on movements, on visits, on programs and all other aspects of imprisonment.
13I take your personal circumstances into account. You are 19 years old and have a background which is problematic and significantly deprived. You were born in Ballarat and you have an older sibling. Your parents separated when you were a baby and you did not have any contact with your father until
aged 12. You have half siblings as a result of your parents re-partnering. You reported having been a heroin addicted baby. You were living with your mother in your earlier years with your stepfather, whom you came to hate. You were beaten and physically abused and you have not seen your siblings for about four years.14You lived with your father for 12 months. When the care package benefit ran out your father assaulted you and kicked you out of home. He had been in prison often and was a drug user and violent offender. You have been taken off your parents by DHS and were a child protection client and placed briefly into residential care. You have, however, a closer relationship with your father currently and your stepmother, Kelly. Aged 10, there exists documented concerns about your safety in the family with suicidal ideation. In 2013 you were seen in the infinite Child Mental Health Services by a social worker after your mother and stepfather referred you. A diagnosis of ADHD and oppositional defiance disorder was noted at that time, as well as concerns about parental substance abuse and parenting practices. She concluded you were socially isolated and sad with no positive connection to peers, with zero friendships. Your behaviour at school was also subject of comment. By age 11 you were using methylamphetamine, you experienced bullying at school as well as mental disturbances. You also started smoking cannabis primarily in order to make friends.
15Through Berry Street Child and Family Services you were placed in residential care. By 2016 you reported bullying and a decline in self-esteem, increasing learning difficulties and a decline in educational development. A paediatrician, Dr Jenner, noted the increasing evolution of recurring physical ticks, consistent with Tourette's Syndrome. The doctor found severe emotional disturbance. Your schooling ended by Year 10. A year later Dr Jenner found destructive behaviour and general decline with risk taking activities and it is at this time you first appear in the Children's Court, May and November 2017 for burglary and theft, going equipped to steal. You were placed on probation for six months as well as criminal damage and property destruction, again being placed on probation and intentionally damaging property and cannabis use. Matters adjourned for three months upon a good behaviour bond.
16In October 2019, aged 16, Alison Mynard, a clinical psychologist, assessed you and found you met the diagnostic criteria for ADHD and symptoms of
post-traumatic stress disorder but that your behaviours and symptoms were more consistent of a very traumatised and fearful child. In June of the next year, 2020, you appeared at the Ballarat Children's Court, again charged with burglary and theft, criminal damage, going equipped to steal, possession of a controlled weapon and recklessly cause injury and property destruction. The court, without conviction released you on a youth supervision order for
12 months to engage in unpaid community service. The outcome reflects your positive engagement and compliance with supported bail through
Youth Justice, which I will mention again later. You volunteered at the
Redline Raceway and participated in leadership camps.17Despite these games you recommenced using methylamphetamine and cannabis. Your situation became unstable with no stable accommodation. While in Melbourne you were raped by a male. In 2019 you told Ms Mynard you felt safe in Youth Detention and liked being there. This is your first time in adult custody. Alison Mynard wrote a report dated 19 September 2022 for the court. She outlined your background and family dynamic and educational history, including that you struggled to read. You did go to trade school, she writes, and have had five jobs as a carpenter with the longest job lasting a year. Since mid-August 2022 you have been in a relationship and had difficulties contacting her from custody. Alcohol use escalated from 2019 and you had started again using large quantities of ice regularly as well as Xanax every day.
18You presented to her as, 'highly avoidant and defensive', angry and distractible, emotionally very young, saying you loved being in custody. Low in your cognitive function and extremely emotionally immature. You showed no insight into your offending and no remorse at all. Your judgment in terms of the offending was extremely impaired. Mynard outlined your mental health and psychological history including past trauma due to extreme physical abuse when you were a child by your mother and stepfather. This has led to recurring avoidance symptoms of post-traumatic stress disorder and irritability and anger. You describe you were raped at the hands of a junkie in paragraph 33 of her report. You are still fearful of this man. Having been exposed to interpersonal trauma as a child you are unable to complete developmental tasks in adolescence and your symptoms diagnosed as complex post-traumatic stress disorder, meaning you re-experience trauma and you experience emotional dysregulation, negative self-concept and interpersonal difficulties. You reported being always angry, and this is made worse by some ADHD symptoms, as outlined in paragraphs 41 and 42 of her report. You present with traits of antisocial personality disorder. You lack empathy for your victims. You are not remorseful. You are impulsive, very irritable, blatantly disregarding the safety of others, show patterns of irresponsibility. You are not currently medicated and you told Mynard that your mate sent you to get the hat. You told her you do not care about life anymore. You do not appear to recognise that your behaviour has consequences for others as well as yourself and this behaviour is very serious. You are focused on your own survival and immediate gratification. Ms Mynard opines you are in danger even at your young age of being institutionalised and your future prospects are conditioned upon case management, psychological treatment with a trusted counsellor and abstinence from drugs and a medication regime.
19The current obstacles outlined in paragraphs 63 and 64 appear significant and your prospects currently of rehabilitation must be guarded. Dr Loretta Evans also provided a detailed neuropsychological report. She recited your medial history, including alcohol and substance abuse, your background and family history, psychotic history generally, summarising past reports augmented by your current reporting. As to your offending behaviour you said, 'I was asked to and I do what I'm asked to do'. To some extent struggled to define the difference between right and wrong. Not only did you display minimal appreciation of the impact of your actions and lack of empathy, but you could not offer any assurances that you would not re-offend in the future.
20You denied that in your present remand you have any concerns for your safety or capacity to engage with others. Much of Dr Evans' report echoed the concerns and views expressed by Ms Mynard. Dr Evans administered a number of diagnostic tests outlined in paragraph 21 and onwards. In her opinion it is possible that an underlying neuro-developmental disorder has occurred but this is too speculative in nature. She opines your cognitive profile does not meet the criteria for ADHD. She concurs that you lack complete remorse and regret, which is the most concerning aspect of your presentation and that the most prevailing element of your presentation is your exposure to trauma and abuse and likely development of complex PTSD symptoms which have progressed to entrenched antisocial personality traits which now dominate your presentation.
21This neuro-developmental disorder's main elements in this personality trait is coupled with chronic drug use, which was present at the time of your offending and which remains enduring and permanent in nature. There is insufficient evidence to indicate the presence of an intellectual disability. Intoxication is, in her view, the key contributor to the offending, impacting on your decision-making process. And to the likelihood deterioration whilst in prison Dr Evans noted that an appreciable decline from a cognitive prospective would not be anticipated. She would recommend psychiatric monitoring to ensure your mental state does not deteriorate. Without this there is a heightened risk of emotional mental health decline whereby harm to self and others potentially would increase. She recommends psychiatric treatment but is pessimistic about your capacity to engage or benefit from therapeutic interventions to assist your prospects of rehabilitation, which she writes are, 'extremely doubtful at this point in time', with the risk for recidivism being presently extremely high.
22During your plea it was said that you had utilised your time in custody productively through employment and education in various jobs and courses. See paragraphs 31 and 32 of the defence submissions. You were also on the waiting list for drug rehabilitation programs run by Caraniche, a traffic management course and a tradies maths. I was then properly informed that there is a subsequent matter before the Magistrates' Court. These matters are yet to be resolved one way or another with plea negotiations of fact. While I note with concern these charges, they are said to arise some four months after this current offending with which I am dealing but I will not presume to speculate in any way about them or their ultimate disposition. It was acknowledged that general deterrence and community protection are of significance for armed robberies of this ilk and offences involving street violence, but it was said that your background should moderate the moral culpability attaching to your conduct. I accept that the Bugmy principles apply to your case to reduce your moral culpability, impacting on these two sentencing principles. They, however, remain relevant as does specific deterrence. Given your prior history and the matters raised in the reports tendered, particularly as to remorse and empathy.
23The most relevant and difficult factor is your youth. You are a young offender within the meaning of s3 of the Sentencing Act and the well understood principal applicable to youth offenders should apply to you. Rehabilitation and reclamation may be difficult and guarded. The road ahead for you may well be fraught with uncertainty, but the policy of the criminal law is to rehabilitate if possible and reform a youthful offender, which is a valuable endeavour for the offender and in the long terms for the community. The offence of itself lies as it does in the lower part of the spectrum of armed robbery and should not be overwhelmed by the assessment of your prospects. The court, in my view, despite a pessimistic outlook, should be slow to claim that you are incorrigible and recidivism is inevitable for you. It is true that the primacy of youth is not inviolable and must at times take a back seat in the evaluation of an appropriate sentence but its mitigatory consideration is not extinguished here. It would be unjust to consider rehabilitation as unrealistic. See Azzopardi.
24This conclusion is bolstered in part by the supervised bail progress report of April 2020, which was tendered. It pertains to your appearance at the
Ballarat Children's Court in April 2020. In January 2020 you had been released on youth supervised bail. You attended all the scheduled appointments with Youth Justice. You resided with your stepmother and are no longer engaged with child protection. You complied with your bail conditions and engaged positively with educational and employment prospects. Your presentation and attitude improved. This probably occurred because you established a trusted relationship with support people.25I received an assessment by the Mental Health Advice Response Service of the County Court dated 1 December 2022 and the author, Ms Hughes, wrote that you would reside with your parental Aunt Emily upon your release and that she may be able to facilitate your employment. You appeared well settled into our prison environment. You were willing to engage with mental health clinicians to address your diagnosed symptoms and it was recommended you access ongoing psychiatric and psychological treatment as part of any correctional order. Your assessment by Community Corrections found you suitable, although a high risk offending and you indicated you consent to a community corrections order.
26I have considered this disposition at length, mindful of the effect of a youthful offender in adult prison. I do not hold that a combination sentence is inappropriate as it provides for significant punitive sanctions as well as leaving open pathways to rehabilitation. See Boulton [2014] VSCA 342 and
Buckley [2022] VSCA 138.27Please stand, Mr Seiler. On the armed robbery charge you are convicted and sentenced to 10 months' imprisonment to be followed by a community corrections order of two years. You will perform under that order upon your release 200 hours of unpaid community work and you will be under the supervision of Community Corrections and return to court for judicial monitoring, the first of which will be on 21 August 2023. You will receive assessment, treatment and rehabilitation for drugs and mental health issues. You will attend programs as directed to reduce your reoffending. During that period you will be of good behaviour. Mr Seiler, if during that period you reoffend or you breach your conditions of this order and are placed on contravention, you can be punished for that breach and you may well also be re-sentenced for this armed robbery, at which point you may face much more serious further punishment. Do you understand?
28OFFENDER: Yes, Your Honour.
29HIS HONOUR: I declare that you have served, by my reckoning, 193 days by way of pre-sentence detention. I will have noted that in the records of the court. But for your plea I would have sentenced you to 15 months' imprisonment. I do not believe that there are disposal orders or other orders and that is all that is required.
30MS CARUSO: We do not believe so, Your Honour.
31HIS HONOUR: I am sorry?
32MS CARUSO: Is Your Honour reckoning any of the treatment to be credited for unpaid community work?
33HIS HONOUR: No. Yes, you can remove Mr Seiler, thank you. Just before you go, you have served, I think from my reckoning about - just over six months.
34OFFENDER: Yes, Your Honour.
35HIS HONOUR: You have got about four to go depending on what credit or so you get for COVID days. Do you understand?
36OFFENDER: Yes, Your Honour.
37HIS HONOUR: When you are released you are supposed to go and report to Corrections within two days. I suggest to you that you keep your appointments, and you have been able to do that before and you let them help you with the things that you need assistance with. You attend your appointments. You are lucky that you have got your Auntie Emily that is able to support you. Try and find some work, try to fix your life up as soon as you can because otherwise you are going to lose the best years of your life in an institution and nobody wants to see that. I know that you are saying that you might be comfortable in there and safe, but just look at what life is happening outside. Yes, take him away.
38OFFENDER: The trouble is - - -
39HIS HONOUR: Yes, thank you, Mr Hunter, and everyone else who made themselves available this morning.
40MR HUNTER: Your Honour.
41(At 10.16 am His Honour left the Bench.)
42(At 10.30 am His Honour returned to the Bench.)
43HIS HONOUR: There is an issue that has arisen in relation to the pre-sentence detention period. As far as I knew when this matter appeared before me for plea I was only told that it had not been resolved the Magistrates' Court matter, and that it was going before a magistrate for a mention in early December. I now see that on 10 January 2023 at the Magistrates' Court in Ballarat
His Honour Magistrate Saines convicted Mr Seiler with intentionally cause injury and affray and sentenced him to three months' imprisonment, an aggregate sentence concurrent with other State sentences imposed and he noted that the time held in custody, 90 days, reckoned as a period of imprisonment already served under that sentence, and he had in mind the remand date of
8 August 2022. From what I recall, the matters that those two charges are concerned with arose in July 2022 and that 8 August might have been the date at which Mr Seiler was arrested and placed into custody and remanded. It is noted by Mr Saines that pre-sentence detention has been declared by reason of Renzella principles, which I am not sure what that refers to. It might have been a reference to the fact that back in August but not the 8th, rather the 7th, the day before - - -44MS CARUSO: In any event, he was declared s18 pre-sentence detention. I am not sure what he means by Renzella where he has made a declaration.
45HIS HONOUR: The chronology that I was given was that after July in which
Mr Seiler failed to appear for committal mention he was arrested on warrant on the 7th.46MS CARUSO: That is right, Your Honour.
47HIS HONOUR: And he was remanded, and that maybe is the date to which Magistrate Saines refers to as being the remand date, on the 8th.
48MS CARUSO: Yes.
49HIS HONOUR: The problem is that that remand date, 8 August, is the remand date, at least as far as I know, which primarily was related to this matter.
50MS CARUSO: It is.
51HIS HONOUR: The matter that I dealt with, and so the time that he was held in custody, that is 90 days, which His Honour has declared in relation to those matters, really overlaps with this time rather than the other way around, and I would have thought that given that this matter before me took place four months before, he may have been arrested and remanded on both matters simultaneously but does not this matter have some measure of primacy or priority in relation to this?
52MS CARUSO: It ordinarily does, Your Honour, and I just cannot off the top of my head think of the case law, but there is some case law on this and it indicates that the PSD must be taken into account in the first sentence that comes before the court.
53HIS HONOUR: That is a problem.
54MS CARUSO: And that is a problem with the other - - -
55HIS HONOUR: The sentence that Magistrate Saines has imposed was in January.
56MS CARUSO: That is right. So he had to take it.
57HIS HONOUR: And so he has got to take it, as you say, and so that means because otherwise the 90 days completely overlap.
58MS CARUSO: That is right.
59HIS HONOUR: And in effect he ends up doing 90 days less, does he?
60MS CARUSO: So, Your Honour is not able to take into account that 90 days. You have to reduce the pre-sentence detention.
61HIS HONOUR: Yes.
62MS CARUSO: But without his counsel and him being here that means that Your Honour has to take into account totality in terms of his total time and
Your Honour may have reduced the total effective sentence - may have.63HIS HONOUR: I do not think that I would have but I am concerned to declare the right amount of time.
64MS CARUSO: It is 90 days less.
65HIS HONOUR: I do not have any idea in terms of a summary or in terms of what the intentionally cause injury or affray was like but for Magistrate Saines to have imposed three months it could not have been anything - even the injury could not have been that serious. However, because he has been able to manage to get that to court and have it dealt with by 10 January of this year, in effect he has used up those 90 days.
66MS CARUSO: That is right.
67HIS HONOUR: And I am left with 103 days rather than 193 days.
68MS CARUSO: That is right.
69HIS HONOUR: I will have my associate contact the instructor to see whether during the course of the day - you are not - are you here? You are the instructor.
70MR MITRA: I am.
71HIS HONOUR: I beg your pardon, I did not realise. You followed the discussion. I am sorry, I do not have your name.
72MR MITRA: It is Mitra, Your Honour.
73HIS HONOUR: Yes, Mr Mitra. You have followed the discussion.
74MR MITRA: Yes, Your Honour.
75HIS HONOUR: Perhaps the best thing right now would be, and I do not know whether Mr Seiler is still in the cells, he probably is because he would not have been already been transported back to wherever he needs to go. Perhaps the officer in the dock might be able to confirm that. Sorry, do you know whether Mr Seiler has already been taken back or is he still - - -
76SECURITY OFFICER: No, he is not in the cell. He is waiting for the paperwork. So if the paperwork has not been delivered to him in custody he is still here.
77HIS HONOUR: Good, all right. All right, thank you. I think it is important that he should be told that as a result of this overlap - first of all, do you agree with my conclusion about this?
78MR MITRA: Yes, Your Honour.
79HIS HONOUR: Yes. I do not intent to vary my sentence because he has done 90 days of the charges that Mr Saines dealt with in the Magistrates' Court. It just means that he has 90 days, that is three months less on the pre-sentence detention that I have declared, back to 103 days, and that is something that he needs to know.
80MR MITRA: Yes, Your Honour.
81MS CARUSO: Yes, and just for clarity, Your Honour, I think the operation of the Act will mean that your sentence is concurrent with the sentence he is currently serving, so that will - no, he used 90 days. Sorry, it will be done.
82HIS HONOUR: I think that the day starts today.
83MS CARUSO: Yes.
84HIS HONOUR: He has done 90 days.
85MS CARUSO: It does. Sorry, I - - -
86HIS HONOUR: And he has continued to serve some time so the continuation of that time from August last year until now picks up at the end of the 90 days and runs into this sentence, which is probably about four months or so, or a bit less, yes. Sometimes these things happen in this way but I do not think even taking into account totality - yes, I do not think that that would impact on the sentence and it does not at all because it seems to me that the measure of the sentence in the Magistrates' Court is of a weight which indicates the kind of offending which it was and which does not impact on my sentence, which I think is appropriate. Did you represent him at the Magistrates' Court?
87MR MITRA: I was instructing on that matter, Your Honour, so I was present. Mr Hunter of counsel appeared on that day.
88HIS HONOUR: I am not being critical. These overlaps happen quite often. It would have been preferable if I had been told about it before today in terms of the - do you remember, in essence, in the summary form, what the intentionally cause injury and affray was like? Was it a fight or something or - - -
89MR MITRA: It occurred, Your Honour, at a bust stop in Ballarat where Mr Seiler attended and in response to something that he perceived the victim had said, he punched him several times.
90HIS HONOUR: Was he on his own or was he with others?
91MR MITRA: He was on his own, Your Honour.
92HIS HONOUR: Right. Why was he charged with affray?
93MR MITRA: There were a number of people I think - apologies, Your Honour, I believe that somebody had attended with him but was some way distant from the actual offence and Mr Seiler left the scene alone.
94HIS HONOUR: In any event, do you recall the nature of the injuries? Was
it - - -95MR MITRA: There was nothing substantial, Your Honour. There was a cut lip and there was no requirement for any medical attention.
96HIS HONOUR: Yes.
97MR MITRA: With respect, Your Honour, I must apologise that this was not shared with Your Honour. As I understand it from counsel who appeared before Your Honour at the plea, Your Honour wished to adjourn sentence until the matter had been finalised. At somewhere along the line, it has not been shared with Your Honour what the disposition was.
98HIS HONOUR: I was told, I recall, that in November - sorry, that in December there was going to be something like the first or something like that, there was going to be a mention and that the resolution was still being discussed. So I expected some resolution perhaps to have been achieved but - and I repeat, I am not being critical. I know that these overlaps happen from time to time but it would have been helpful to me to know what the outcome of 10 January disposition had been and I would have been able then to consider it, but having looked at the order and having now been told what the matter was about, it seems to me that even then applying the matters of totality to the sentence, given the time assigned by the magistrate to that particular series of offences, that that would not have made a difference to my sentence. It is just important that Mr Seiler is told that the time that he has spent from August 90 days forward really dealt with that matter and that the sentence which he is now undertaking begins thereafter, leaving him 103 days by way of pre-sentence detention.
99I will instruct the transcribers to transcribe this particular discussion that I have had with the learned prosecutor and with yourself, Mr Mitra, so that the sentence reflects these comments that have been made and are part of the sentencing disposition. I think it is important to record how the pre-sentence detention has been arrived at.
100MR MITRA: Thank you, Your Honour.
101HIS HONOUR: Thank you for your attendance.
102MS CARUSO: Did Your Honour want Mr Seiler to be brought back up,
Your Honour?103HIS HONOUR: If that was able to be done I think that would be best. Mr Seiler, I have had you brought back in court because there is something that I need to correct. Apparently, you were at the Ballarat Magistrates' Court on 10 January of this year and Magistrate Saines sentenced you to 90 days for intentionally cause injury and an affray. You remember that?
104OFFENDER: Yes, Your Honour, yes.
105HIS HONOUR: Then he calculated that period of time, those 90 days, based on the time that you had already been in custody from when you had been remanded in August of last year, and so that time was already served in effect by a portion of your remand. So what remains then for this sentence is not
193 days because 90 of those days that the sentence that the magistrate gave you, has to be subtracted from that. Do you understand?106OFFENDER: Yes.
107HIS HONOUR: So instead of 193 days in relation to the sentence that I gave you this morning for the armed robbery, it is actually 103 days pre-sentence detention. Do you understand?
108OFFENDER: Yes, Your Honour.
109HIS HONOUR: Yes. I have considered the impact of that on my sentence and it has not changed the outcome but I thought it was important for you to understand in the calculation of the time that you have spent that goes towards that 10 months before you are released on a community corrections order, that that is why it is 103 rather than 193. Do you understand?
110OFFENDER: Yes, Your Honour.
111HIS HONOUR: All right. Do you have any questions?
112OFFENDER: No, Your Honour.
113HIS HONOUR: Thank you. You can go. All right, thank you, Mr Mitra. You are excused.
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