Director of Public Prosecutions v Sharpe
[2017] VCC 609
•17 May 2017
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| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR -16-01830
Indictment No.G11478822
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RHYS SHARPE |
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JUDGE: | HIS HONOUR JUDGE TINNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 May 2017 | |
DATE OF SENTENCE: | 17 May 2017 | |
CASE MAY BE CITED AS: | DPP v SHARPE | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 609 | |
REASONS FOR SENTENCE
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Catchwords: Aggravated burglary; Theft; Summary offences: Fail to stop and offending whilst on bail.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr Henderson | Office of Public Prosecutions |
| For the Accused | Mr Guthridge | Paul Vale Criminal Law |
HIS HONOUR:
1 Rhys Sharpe, you have pleaded guilty to one charge of aggravated burglary and one charge of theft. Those are the two charges laid on the indictment. You have also pleaded guilty to a related summary matter of committing an indictable offence whilst on bail as well as one charge of failing to stop after an accident. All of this offending occurred on 27 November 2015.
2 You have admitted a criminal history before the courts. You are now 27 years old.
3 The aggravated burglary was a burglary with the intent to steal. The features of aggravation were the carriage by you of an offensive weapon, being a serrated knife as well as the presence of persons actually within the premises that you entered and your awareness (or recklessness) as to that fact.
4 The maximum penalty for the aggravated burglary charge is 25 years' imprisonment. The maximum penalty for the theft is ten years' imprisonment. The Bail Act offence carries a three month maximum term or a fine and the fail to stop charge is punishable by a 14 day maximum term or a fine.
Facts
5
The prosecutor, Mr Henderson, opened this matter to me yesterday in accordance with an amended written prosecution opening that was dated
15 May 2017. Your counsel, Mr Guthridge, told me that this was an agreed statement of facts. I see no need then to describe the full factual setting in my reasons. I will incorporate the agreed summary into my sentencing remarks. That this was serious offending is clearly beyond dispute.
6 You have attended a house in Williamstown North on the day in question. It appears that you had entered the premises prior to the entry the subject of Charge 1. I say that, as your victim, Ms Williams, had returned to the premises with her four young children at about 4.06 pm. She was in the kitchen. She had parked her late model Mazda CX9 out in the street and upon returning to the house, she noticed that some of the rooms had seemingly been ransacked. She was worried and rang her husband. She was in her home with her children aged two, four, eight and nine. She was talking to her husband on the phone and her children were in the kitchen with her.
7 You approached the house and you were wearing a ghost mask and carrying a knife with a 20 cm serrated blade. You opened the front screen door and you entered the house. You walked down along the hallway towards the kitchen. The fearful Ms Williams saw you and said, “Don’t fucking touch my kids, take what you want, just leave me and my kids alone.” Her husband, who was down the other end of the phone at that stage, could hear her screaming over the phone line.
8 As her victim impact statement makes plain, she feared the worst. She feared she was going to be raped. You bent down and stole her purse which, as I understand it, contained the car keys. You then walked out of the house straight to her parked car and stole it. You drove that vehicle from the scene. The summary discloses the later events with the husband responding to her distressed and panicky calls, he returning to the area and seeing the family car being driven in the neighbourhood and the steps that he took to try to stop you. It was in the course of that evasion that you crashed the car and left the scene. Eventually, after a chase on foot, you escaped. You were on a number of sets of bail at the time of this offending.
9 You were charged a fair while later owing to DNA left extracted from clothing left at the scene and also from a swab of the steering wheel. It was in May 2016 that you were charged. You had been interviewed earlier, in December 2015, and had denied any memory of the event.
10 You pleaded guilty on the day of a contested committal hearing where witnesses had been required to attend for cross-examination. Ms Williams was one of those witnesses and she had attended to submit for cross-examination. Sensibly you settled the matter on that day prior to her or any of the other witnesses actually being called and cross-examined. You have been in custody on this matter since being charged on 30 May 2016. In fact you had been in custody from an earlier point in time in relation to unrelated offending that will be dealt with on 1 June of this year at the Sunshine Magistrates' Court.
Impact
11 Your victim has made a victim impact statement. I have read that statement again overnight. I see no need to descend to the full details of that statement. This was undoubtedly serious offending. Your victim speaks of the deep impact upon her and her family. This was an horrendous day in their lives and the impact lasts to this day and will beyond. There were, as you know now at least, very young children in the house on the day of your offending and they have been deeply scarred by your acts. It was a frightening event indeed to see an intruder enter into their domain wearing the scary mask that you were wearing and carrying a knife and then that person make off with property including, of course, the family car. Their mother comments on the many and varied ways that your crimes have disturbed their lives and her own life. On the day itself they were screaming and crying uncontrollably in the house. The eldest boy ran and hid. The eldest girl will not to this day be left alone. One of the boys has ongoing nightmares. None of the children will sleep in their own beds. Their mother had to take two weeks off work using her annual leave as those of her children who were of school age were just too stressed and upset to go to school. You have robbed them of a sense of innocence and a sense of security. The impact of your crime has been very significant and I take it into account.
Mitigation
12 Your counsel, Mr Guthridge, raised a number of matters in mitigation. He relied mainly upon:
· Your early guilty plea;
· The presence of remorse;
· Your disadvantaged background;
· Your strong efforts in custody for a significant period of time as evidenced by course completion documents and a number of letters from a psychologist, Dr Honeyman;
· Your prospects of rehabilitation; Your mother was, and is, supportive and you had changed a lot in custody, it was argued;
· He relied upon a report from a psychiatrist, Dr Zimmerman, as well as letters from you and your mother;
· Mr Guthridge made submissions as to the seriousness of the offending;
· He conceded essentially the inevitability of a term of imprisonment in that he was arguing that you had served close to 12 months on these matters and could be sentenced to such a term of imprisonment in combination with a community corrections order.
Prosecution
13 Mr Henderson, who appeared on behalf of the Director of Public Prosecutions of this State, argued that the aggravated burglary was a serious instance of the offence. It was committed whilst on bail. Residential premises were targeted in the daytime by a man with relevant criminal history. You wore a disguise, a frightening one at that, carried a knife and entered premises intending to steal. Within those premises there was a mother and four young children and the impact of the offence was sizeable. The Director through Mr Henderson submitted that the offending was so serious as to not permit a combination type order.
14 I am not bound by any submission made to me, either by your own counsel or counsel for the prosecution. I do not ignore any submission that has been made. What I have to do is reach my own view as to the nature of the sentence called for in this case. I do not believe it is open to me to combine a prison term with a community corrections order given your history before the courts, your past failure to abide by a community corrections order and the nature and the gravity of the offending. That was my provisional view yesterday and it has not altered overnight upon a review of all the material placed before me including, of course, your counsel's submissions.
Guilty plea
15
I turn then to the matters raised in mitigation, and the first of those is your guilty plea. You have pleaded guilty and you have done so at a relatively early opportunity. It was not the earliest occasion. It was not the earliest plea as the matter was listed for contested committal and that had the effect of your victim having to attend the Magistrates’ Court. However, it settled on the day and without her being called as a witness. So I take these matters into account in mitigation of sentence. That is, an early guilty plea entered by you. You have taken responsibility for your offending, and not everyone does. Witnesses, including Ms Williams, have been spared the experience of coming to court to actually give evidence. That is of some significance. The community has been saved the time, cost and the effort associated with the conduct of an actual contested committal hearing in the Magistrates' Court or a trial up in this court. You have in these ways facilitated the course of justice and I must and do reward you for your decision to plead guilty and at the early stage which you did. I must pass a lesser sentence upon you than I would have imposed had you been found guilty at trial by a jury. I also take into account, as I am asked to, your level of co-operation with the police. It is perhaps not the strongest point in your favour as you did not provide a full account of your criminality by any stretch of the imagination. However, you were at least polite and
co-operative with the police and you volunteered your DNA. I take your co-operation into account.
Remorse
16 You have pleaded guilty and, as I have said, done so at an early stage. A guilty plea is normally indicative of some remorse. Additionally, though, in this case I have various exhibits which speak of your response to the offending including your own letters and your reported discussions with the psychiatrist and psychologist.
I am prepared in the circumstances to find that you do actually have remorse for your crimes, as your counsel suggests I should. I take that into account in mitigation.
Background
17 I do not see any need to go to your background in enormous detail. That is because I accept the personal background that has been placed before me in the plea conducted by your counsel. What is the point in me repeating it back to you? There is reference to your background in Mr Guthridge’s written submissions, as well as in the report of Dr Zimmerman. You are 27 years of age. You are one of four children, and it seems to me there was very much a disadvantaged background. Your father had left when you were but an infant, money was seemingly tight and you had no male role model other than your older brother who, it would seem, led you seriously astray. Your early background was very much unenviable. You had some difficulties at school with dyslexia and bullying and, of course, you left school at far too young an age. You have had some success in the workforce in labouring jobs, mainly as a concreter. Drugs have been a major issue in your life for a number of years now and they have derailed your life as your own letters highlight.
18 You had no choice as to your background in terms of the developmental years. Your counsel suggests that you were dealt a bad hand in life. Well, I have seen far worse hands held by people who sit where you sit in the dock, but they were the cards that you have been dealt and I agree that they were not much of a hand. Your counsel argues that there was this background of poverty and disadvantage, and I accept that it was. So I take it into account, as far as I am able to, your disadvantaged background. You still have support from your mother and that obviously is a big positive. She stands by you and gave evidence before me yesterday as to the ways that you have changed since going into custody all that time ago. She also has written two letters which are supportive of you, spelling out as they do her observations of the changes that have occurred since you went into custody.
19
You have a criminal record. That is part of your background and I cannot ignore that. It is actually not the longest criminal record when examined closely, and of course, given your background it could be a good deal worse. There is also a doubling up of some appearances with fines converted into community-based orders and then converted back to fines upon breach of the community-based orders. That style of matter pads out the history somewhat. You have been dealt with before for dishonesty offending. You received a community corrections order in December 2013 for a dishonesty offence and you breached that order. You had breached some earlier community-based orders, but I note that they were the fine default work orders to which I have referred and so the breach of those orders is of far less significance, in my mind. You received a one month term of imprisonment on the breach of the December 2013 community-corrections order and on that same day in January 2015 you received an aggregate 12 month term of imprisonment with a six month non-parole period for a large consolidation of offences which included amongst their number, burglaries and one attempted burglary and a charge of theft of a motor vehicle. You were released on parole on 18 March 2015, but that order was revoked a very short time later on 30 March. You were released again on parole on 20 May and that was then cancelled on 1 July. You served out then the balance of the sentence and it expired and you were then released on 1 October 2015. You have committed these offences for which I must pass sentence in late November 2015 but had committed a variety of other offences both before November 2015 and after. I am told that you are pleading guilty to all of those matters that are consolidated for a plea at the Sunshine Magistrates' Court on 1 June. So I can have regard to that chronology, I believe, in the sense that you are admitting your guilt of those matters. You have, at this point, a reasonably
long-term addiction to drugs. Your counsel at more than one point in the plea said that your problem was a health problem. It is not, not as long as you are committing serious criminal offences, but I am sure that your drug addiction is very much pivotal, if not fundamental, to your offending.
Prospects of Rehabilitation
20 What then are your prospects for the future? You are no longer a teenager. I cannot ignore the seriousness of the offending that brings you before me or the fact of it occurring whilst on bail and shortly after completion of a prison term. Yet you have been in custody continuously for a significant period, far longer than in the past. You have done your best to prepare for your ultimate release. There are an impressive range of courses and programs that you have completed. It seems to me that you have taken every opportunity open to you and I do not find that this is driven purely by a desire for a shorter sentence, though no doubt you hope to receive a shorter sentence. I am pretty confident that at the age you are at you are realizing that you need to make sizeable changes in the way you are living your life, or life will just slip past you. I am impressed by the words of Dr Honeyman in particular in her various written reports. You have also written two letters yourself and they are quite insightful. You have the support of your mother. You have, it would seem, a home to go to upon your ultimate release and likely some form of employment upon that ultimate release, whenever that is. So what then do I make of your prospects of rehabilitation? It is hard not to be guarded. I am certainly not going to write you off or say that you have no prospects of rehabilitation. I do not think that is the position, not by a long shot. You are still quite young and you may well change. Hopefully you will. But nor can I accept that you have turned the corner. It is just far too early to reach that view. The test will come upon your ultimate release from custody and you seem to recognise those challenges which lie ahead. I am prepared to find that you desire positive change and that is more than a start.
21
I really have not descended to the detail of much of the written material placed before me and I just do not see the need to do so. There is the report of
Dr Zimmerman and of course I take that into account. Neither that report nor any of the other material placed before me is relied upon as attracting any of the principles from the Court of Appeal decision of Verdins v R. As I have announced, I am impressed by your response to the counselling sessions with Dr Honeyman.
22 You have been continuously in prison since January 2016. Some submissions had been raised both orally and in written submissions as to the lockdown situation in custody and how regard should be had to that. Your counsel corrected and indeed abandoned that submission, as he told me he and the prosecutor had accessed the file and it disclosed very few lockdowns indeed and those that existed were a management response as a result of your own behaviour.
23 You have been working in custody at some points, you would appear to be drug-free, though there is no evidence placed before me as to that, and you have done these various courses and programs. Well, what else can you do in that setting but your best? You still have support on the outside and, as I have said, that is very important. Possibly a job to go to and a place to live. Again, they are obvious positives. Nor are you too old to change your ways. You are still relatively young and you can yet live a decent and satisfying life in the future, I do not doubt that, but I can only be relatively guarded at this point in time. I do not assess your prosects currently as being good. That would ignore the reality of the chronology of offending and the extent of your drug issues. I am, though, prepared to find that you have reasonable prospects of rehabilitation if you can remain free of drugs. It is, as you well know, a big if. If you fall back into drug use, well, you have virtually no prospects of rehabilitation in the future. The ball will be in your court upon your ultimate release, no one else’s. No one can force change upon you, try as they might. Not me, not a psychiatrist or a psychologist, not your mother, not a parole officer. Only you can take these steps. It is whether you will, whether you can.
24 So I believe you do have quite realistic prospects of rehabilitation and that they should be assessed as being reasonable at this point.
25 I take into account all of the written material that has been placed before me, as well as the oral submissions of your counsel. I have not seen the need to work my way in these reasons through the four letters placed before me, two from you and two from your mother, but of course they are of value. I have read them and I take them into account.
26 I also take into account the delay since the offence date. Again it does not strike me as your strongest point. For whatever reason, you chose to deny the offence upon being interviewed by the police in December 2015. That is not a matter in aggravation by the way. As a result, the matter was investigated. The DNA was extracted. A statement was made. After that statement had been served, for whatever reason, the matter was listed for a contested committal. It then settled on the day of the committal hearing. I do not believe delay is of any great mitigatory value in this case. Indeed, of course, you committed further offences after the November offences for which I must pass sentence. You have been continuously in custody since January of last year. Now, of course, much of the positive material that I have taken into account has arisen in the course of the delay as you have engaged well with the counsellors and the like and I suppose that is one real benefit of the delay, that is the ability of the court to see the steps that you are prepared to take and have taken. Undoubtedly though there has also been the detriment of uncertainty of outcome in your life until the matter was finalised, and I take that into account in mitigation.
The Offences
27 As to the offences themselves, your counsel, whilst conceding that it was serious offending, argued that the aggravated burglary offence fell towards the low end of offence seriousness. I do not agree with that characterisation at all.
28 It was clearly not as serious as some instances of the crime which are committed and which come before the court. Make no mistake, though, yours was a serious example of this offence. There has been much discussion in the Court of Appeal about the inadequacy of sentencing practice for the crime of aggravated burglary and the manner in which a court might assess the seriousness of a given offence. There have been discussions in cases such as Hogarth and Meyers [2012] 44 VR and Bowden [2016] VSCA 283.
29 In the case of Meyers, a number of considerations were set out, though obviously they are not exhaustive. They include the intent upon entry, the mode of entry, whether a weapon was carried, whether the offender was alone or in company, the time of the day, what the offender knew about who would be inside, and whether the offender was someone of whom the victim was particularly frightened. Well, you were not in company and the timing was not in the early hours of the morning when people were asleep. There was a mother who had just arrived home with her four very young children. You were wearing a frightening disguise and you carried a large knife. There was obviously some premeditation. It was a terrifying offence, though I accept that you did not brandish or gesture with the weapon or issue any verbal threats or demands. Just your presence alone was enough to strike fear into the hearts of those who were within the premises. It has had a dreadful impact your crime.
30 In my assessment, the aggravated burglary committed by you sits very comfortably above the lowest examples of the offence of aggravated burglary.
31 It is an inherently serious offence to enter another person's premises as a trespasser as you did. You intended to steal and you were armed and fixed with knowledge of at least the presence of others within the house. This sort of offending, as I say, is inherently serious and inherently dangerous. It is difficult to ever predict the end outcome. How can you? How can you know in advance how those within the premises will react to such a frightening situation or those summonsed to come to the premises? Well, of course you cannot.
32 Not every aggravated burglary leads into other offending. Yours did. You stole items within the premises and then really, cool as a cucumber, you stole a valuable car linked to the premises using the keys that were obtained. It was a serious example of theft of a motor vehicle, in my judgment.
33 Now your counsel on more than one occasion in the course of the plea raised a version that had you enter the property without any knife with an intent to steal, then exit the property upon hearing the arrival of residents and then your going back in to recover some items that you had left in there that might identify you including your own bag. He said that in the interim you had gone back to your own car and then returned to the home with a knife that you had obtained from your car. At one point Mr Guthridge was suggesting that you had entered on that second occasion without any intention to steal. Leaving aside the lack of logic in that account given that you had taken a knife from your car back to the house and were wearing a disguise and then entered and actually stole items and then actually stole the car, it is totally inconsistent with your guilty plea which carries with it the essential admission as to entry with an intention to steal. That is the specified intent of the actual burglary and it relates to the second entry and it becomes an aggravated burglary by virtue of the carriage at that point of the weapon and also your knowledge or recklessness as to the presence of persons within the house. I raised that directly with your counsel, that is, the difficulties of that account that he was urging upon me, which also incidentally had been given by you to the Psychiatrist. Mr Guthridge did not persist in urging that account upon me. It seems plain enough on any view of it that you must have known of the presence of others within the house at the time of the second entry. Your own version acknowledges that fact, that is, being disturbed and leaving. You clearly entered on the second occasion with the intent to steal, whatever other motivation may have existed for your entry. Maybe you have seen the family return home, park their car and enter the property and this has heralded your return for the very purpose of stealing some items or even the car in the way that you did. I suppose one might hold that suspicion, but a suspicion is not enough for me to act on and I am not satisfied of that factual setting beyond reasonable doubt.
34 So I suppose it is possible that you did not know exactly who had come home, so I cannot and will not find against you any actual knowledge of the presence of the children prior to entry, but it is inescapable from your plea and the fact of the second entry that you returned into the property at that stage knowing that someone was within. You entered, disguised as you were, intending to steal and carried an offensive weapon, and all of this occurred whilst you were on bail.
35 This was, in my view, very serious offending. It is a long way above the low level example your counsel suggests it represents. I have barely mentioned the car theft, but the car theft itself when one examines it was a serious instance of that offence. The car was stolen from outside the house following on from the burglary. There clearly must be some cumulation of sentence as is explicitly conceded by your counsel.
Purposes
36 I turn now then to the purposes of sentencing. I have to consider a number of purposes of sentencing, as I am sure you are aware. It is clear enough that weight must be given to general deterrence, to protection of the community, to denunciation, punishment, and specific deterrence. Your counsel places the greatest focus on your rehabilitation. If all the court had to do was to consider the prospects of rehabilitation of an offender, well, sentencing would be so much easier. But that is not what I have to consider in isolation. Your prospects of rehabilitation are still a matter of importance, I do not ignore them, but I am required to consider all these other matters including, for instance, the need to punish you justly and proportionately. You must be punished and that is an obvious and important sentencing consideration. I must also denounce your conduct and I do. Again, it is important as a purpose. This was serious offending. It had a significant and deep impact upon totally innocent members of the community and all they were doing was occupying their own home, a home that you trespassed in with the intention to steal in this frightening fashion. This was serious offending and it must be roundly denounced by the court.
37 There are other purposes of sentencing and one of those is the need for this court to seek to discourage or to deter you from offending in the future. Well, courts have tried to discourage or deter you in the past with little success. I clearly must give that principle, that is specific deterrence, real weight in my sentencing task, given the nature of your offending, your criminal history, and given that the offence occurred whilst on bail. The chronology highlights the need for specific deterrence, though I do not ignore the passage of time since and your positive response in custody in the period of the delay.
38 I must also obviously give some weight to protection of the community from you.
39 As to general deterrence, that is the need to deter other people, it is a major sentencing purpose in this sort of case. This court must send a loud and clear message to other individuals in the community who might be minded to commit this sort of serious and illegal entry into another person's home. Such conduct will not be tolerated by the courts and will almost inevitably be met with a sizeable term of imprisonment. The message must be sent loud and clear to others in the community who might commit this sort of offence. That is because of the serious nature of aggravated burglary, a fact which has been spelled out by this State's highest court repeatedly over the last several years. It is a fact also borne out in the sentencing statistics maintained at the Sentencing Advisory Council. Such offences are so serious in part because of the sense of violation they cause when the trespass is engaged in. A home being entered is invasive even if not in a true confrontational setting. The impact statement in this case surely demonstrates why aggravated burglary can be such a serious offence.
40 I must, and I do, pay regard to current sentencing practices and I have considered the Sentencing Advisory Council's Snapshot No.184 of June 2016 for the offence of aggravated burglary. There is a theft snapshot, but really it is of no value at all given the range of conduct embraced by such an offence as theft.
41 The aggravated burglary snapshot discloses that in the period covered by the data, where prison was selected as a disposition (it was not always), there was a median sentence of two and a half years' imprisonment. The most common prison sentence for aggravated burglary was two years to less than three years, and the second most common sentence was three years to less than four years, with the third most common prison sentence being one to less than two years.
42 Now, all of that is statistical material. That is all it is. It is obvious that such statistical material has inherent limitations. Much, if not all, of that data predates the case of Boulton to which reference was made.
43 Statistical material says nothing about the individual features of the offence or of the offender, and even so-called comparable cases have deep limitations. The statistical data says nothing as to the intent upon entry, the aspect of aggravation, whether there was a weapon, whether there were people inside and, if so, what people.
44 As the Court of Appeal made plain in Bowden, the taking of a weapon markedly increases the objective gravity of the offence. You took one. Broad daylight into an occupied residential property, a person's home, intending to steal, disguised and armed at the time.
45 I have looked also at the Judicial College of Victoria sentencing manual dealing with the overview of aggravated burglary sentences. You have committed a serious aggravated burglary. It was serious offending when regard is had to the impact of the crime, the carriage of the weapon, the nature of that weapon, the use of the disguise and the circumstances of entry into premises that were occupied.
Boulton
46 Your counsel accepted that there was a need for a term of imprisonment, but was arguing that your immediate release could be provided for by way of release on a community corrections order given the pre-sentence detention that you have served to date. The Director of Public Prosecutions disputed that submission.
47 As I have said already, I have to exercise my own sentencing discretion. I do not ignore either of the arguments placed before me, but I have to reach my own view as to what is appropriate in this case.
48 You heard some reference to a case of Boulton v R. That is a guideline judgment issued by the Court of Appeal back in December of 2014. That judgment seems to have been greatly misunderstood by very many in the legal profession. I am not suggesting that Mr Guthridge has misunderstood it, but the reasons in that case of were of a general nature. There was nothing in that case obliging a sentencing judge to reach a particular conclusion in a particular case. The Court of Appeal made that very plain in the case itself and has repeated those sentiments very many times since in other cases.
49 It is bindingly obvious that not every offender for every crime can or should be admitted to such an order. There are some crimes where the purpose of sentence cannot be given adequate weight by the use of such an order, even when used in combination with a prison term.
50 I noted in discussions with your counsel yesterday that Parliament had relatively recently moved to restrict the community corrections order disposition. Some of those amendments do not apply to my task, but some do including those which limit such an order being made in combination with a prison sentence where the prison term is greater than 12 months. See the Sentencing (Community Corrections Order) and Other Acts Amendment Act 2016.
51 The Court of Appeal, in a case of Basic delivered in May of last year, expressed the view that the community corrections order disposition was plainly not having its desired effect. They stated that it was being misused and even misunderstood by judges who were passing and constructing sentences almost as a ploy or a device to keep open the community corrections order disposition; that there seemed to be very many cases where sentences just below the then maximum two years were imposed simply to allow combination‑type sentences to be selected.
52 The Court of Appeal in that case suggested that this approach tended to distort the whole process of sentencing, that it was not the way that sentencing is meant to take place, and that the process had distracted from a true consideration of the gravity of the offending before the court. They went on to say that it had led, in their judgment at least, to artificial or compressed prison sentences being imposed to allow a community corrections order to be imposed in combination.
53 The Court of Appeal in that case urged action to be taken by Parliament. Well, whether in response to those words or not, as I have said, Parliament has acted and some of those amendments do apply to my task.
54 Section 5(4C) of the Sentencing Act prohibits the imposition of a sentence of confinement unless the court concludes the purposes of sentence cannot be achieved by a community corrections order to which specified conditions are attached. A court needs to pay careful attention to the purposes for which sentence is to be imposed and consider whether they can actually be achieved by a standalone community corrections order. Well, of course there are some crimes that are just too serious and this instance of aggravated burglary plainly is one of them.
Your counsel was not suggesting that it was possible for you to avoid imprisonment, but you had already done a significant period in custody and he was arguing for a term of imprisonment equating roughly to your pre-sentence detention and for your immediate release into the community on a community corrections order.
55 I have no doubt at all that your offending demands that you serve a substantial term of imprisonment, far more substantial than you have served.
56 There is no alternative at all, other than to impose a term of actual imprisonment upon you. You have already served to this point 352 days in relation to this matter and you have been in custody continuously for 494 days. I have considered whether 352 days is adequate. I simply do not believe that it is. I believe that I must impose a sentence which will significantly extend your stay in prison. I do not believe it is open to admit you to a community corrections order in this case in combination with a term of imprisonment. The offending is just too serious. The sentence needs to adequately reflect general and specific deterrence, denunciation, community protection and punishment. I believe that what I must do is pass appropriate individual sentences, express some level of cumulation, as is conceded to be the position by your counsel, and then move to fix a non‑parole period. The dimensions of the sentence required in this case do not permit any combination type disposition.
57 The Adult Parole Board will then be in a position to assess your needs at around the time of your becoming eligible for release on parole. Whether you will be released on parole or not, that is not a matter that I am allowed to even consider. I have no power over the Adult Parole Board. I am not even permitted to take their possible future action into account in any shape or form. What I must do is proceed on the basis that you will serve every day of the head sentence which I will soon pronounce.
Totality
58 I have taken into account the principle of totality. Firstly, there is obviously a relationship between the four offences before me. They occurred in a very close time frame. Secondly, you have been continuously in custody for a period greater than the pre‑sentence detention period that I am able to declare, and I am entitled and indeed, I believe, bound to pay regard to that fact as well.
59 I have engaged in a last look at the sentences imposed by this court and the total effect of them in endeavouring to guard against the imposition of a crushing sentence upon you. Ultimately, though, despite all the matters raised in mitigation, I have reached the view that there really is no alternative but to impose a term of imprisonment upon you and one which then demands the fixing of a non‑parole period. That non‑parole period will also reflect the efforts that you have made to date in custody and my judgment that you do in fact have reasonable prospects of rehabilitation in the future if you can rid yourself of drug use, that you may just be at a stage where rehabilitation is a path that you may choose in the future.
Disposal
60 There is a disposal order that is applied for in this case. There is no opposition to that order being made. It relates to the jacket and the shirt that were left, I think, in the course of the chase. There is no dispute that the order ought be made. It is made under the provisions of s.78 of the Confiscations Act. I have signed that order. The items attached to the schedule are the subject of the order. I am satisfied that they were used in connection with the offence, and pursuant to the terms of that order, those items are to be held and handled in the manner as contemplated by the order which I have signed.
Sentence
61 Mr Sharpe, can you just stand up, please, just very briefly?
62 On the charge of aggravated burglary, that is Charge 1 on the indictment, I convict and sentence you to 40 months or 3 years and 4 months' imprisonment. That is the base sentence.
63 On the second charge on the indictment, being the charge of theft, I am convicting and sentencing you to 12 months' imprisonment.
64 On the summary offence of failing to stop, I convict and sentence you to three days' imprisonment, and likewise on the summary offence of committing an indictable offence on bail, I convict and sentence you to three days' imprisonment.
Cumulation
65 I direct then that three months of the sentence imposed on Charge 2 be served cumulatively upon the base sentence. The three day sentences imposed on the two summary offences will be served concurrently with the other sentences imposed this day and upon each other.
Total effective sentence
66 What this all results in for you then is a total effective sentence of 43 months or three years and seven months' imprisonment.
Non Parole Period
67 I fix a period of 24 months during which you will not be eligible for release on parole.
Pre-Sentence Detention
68 You have been in custody already in relation to these matters for a period of 352 days. That declaration is to be noted in the records of the court pursuant to s.18 of the Sentencing Act. So you already have the benefit of having served that time subject to these sentences.
Section 6AAA
69 I told you that I took into account your guilty plea. Had you been found guilty of these offences following a contested hearing, I would have convicted and sentenced you to five and a half years' imprisonment. In those circumstances I would have fixed a non‑parole period of four years. That statement made under section 6AAA is also to be noted in the records of the court.
Licence order
70 On Charge 2, a charge of theft, the theft includes theft of a motor vehicle, so I am required to make an order against your rights to drive. You are going to prison for a substantial period of time. I do not know when you will be released. What I do know is that whenever you are released you will need to establish yourself back in the community. With any luck you will find your way back into the workforce and obviously the absence of a licence is a matter of significant disadvantage in that area. I am mindful of that and I note that there is something of a tension between your rehabilitation on the one hand, and punishing you and protecting the community on the other.
71 However, having balanced these matters as best I can, pursuant to s.89(4) of the Sentencing Act, on Charge 2, the charge of theft, I cancel all licences to drive, I disqualify you from obtaining any other permit or licence or from driving in this State for a period of 12 months. That is going to be effective from today's date, all right?
72 Now I accept that it is likely then that this order will have virtually no practical effect upon you, however, the service of the prison term is punitive indeed and my suspicion is that inability to obtain a licence upon your eventual release may disadvantage you and hence impede your rehabilitation which is neither in your interests nor the community's interests.
73 Grab a seat if you would, please.\
74 All right. Now, Ms Yildiz and Mr Guthridge, are there any matters that I need to deal with that I have overlooked at all or not?
75 MS YILDIZ: No, Your Honour, you have covered all matters.
76 HIS HONOUR: Mr Guthridge?
77 MR GUTHRIDGE: Yes, I just refer to a matter that you were involved in, Lang Kouth, where I think the non-parole period was two years.
78 HIS HONOUR: Sorry?
79 MR GUTHRIDGE: Lang Kouth.
80 HIS HONOUR: Yes.
81 MR GUTHRIDGE: You were involved in that matter.
82 HIS HONOUR: What about it?
83 MR GUTHRIDGE: I think there was a four year sentence there with a two year non-parole period.
84 HIS HONOUR: Yes, what about it?
85 MR GUTHRIDGE: I'm just asking the question, Your Honour, whether you would consider that in relation to parity.
86 HIS HONOUR: It's not a matter of parity. I am not asking whether there is anything else you want to say on the plea, Mr Guthridge. The plea concluded yesterday. I have just announced sentence. I am really asking whether there is anything I have overlooked in terms of ancillary orders or anything like that, not - - -
87 MR GUTHRIDGE: No, apart from that, Your Honour, there's nothing else I have to add.
88 HIS HONOUR: Yes, all right. Will you go down and see him downstairs?
89 MR GUTHRIDGE: I'll see him here, Your Honour.
90 HIS HONOUR: You will see him here, but briefly.
91 MR GUTHRIDGE: Yes, yes.
92 HIS HONOUR: Yes, all right. I will just sign that order. Go down and have a word to him then, please. Pop down if you want, have a chat to him.
93 Yes, well, I don't pretend to know why you would raise that matter after I passed sentence, Mr Guthridge or, for that matter, the significance of that decision of Kouth, but perusal of the reasons would disclose that he was a youthful offender with no relevant prior history at all, but ultimately he received a term, from memory, of four years and four months with a non-parole period of 27 months. I don't pretend to know what you want me to do, but anyway, I have passed sentence and nothing that you have said dissuades me from any of those views. All right.
94 Mr Sharpe then can be removed. Thank you.
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