Director of Public Prosecutions v Smith
[2020] VCC 480
•24 April 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-19-02074
Indictment No. K10504990
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| COREY SMITH |
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| JUDGE: | HIS HONOUR JUDGE TINNEY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 2 April 2020 |
| DATE OF SENTENCE: | 24 April 2020 |
| CASE MAY BE CITED AS: | DPP v SMITH |
| MEDIUM NEUTRAL CITATION: | [2020] VCC 480 |
REASONS FOR SENTENCE
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Subject: Home invasion, attempted theft, theft x 3, burglary, handling stolen goods, aggravated recklessly expose emergency services worker to risk by driving. summary offences: Unlicenced driving and fail to stop at police direction; 27 years old now, 26 at time of offence, Intellectual disability Category 2 offence. COVID-19.
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms A Harrald | Office of Public Prosecutions |
| For the Accused | Mr G. Chisholm | Patrick W. Dwyer |
HIS HONOUR:
1Corey Smith, you have pleaded guilty to eight charges laid on the indictment filed in this court. Those charges, in no particular order, are charges of home invasion, attempted theft, burglary, handling stolen goods, aggravated recklessly exposing an emergency services worker to risk by driving and three charges of theft. In addition, you have pleaded guilty to two summary offences being charges of unlicenced driving and fail to stop on police direction. The maximum penalties are correctly set out in the prosecution agreed summary. I see no need to set them all out. It is worth noting that the home invasion has a 25-year maximum term of imprisonment.
2You were born on 4 August 1992, you are 27 now, but were 26 years of age at the time of the offending back in February of last year. You have a criminal history of some relevance to my task.
3The matter was opened to me on Thursday 2 April by the prosecutor,
Ms Harrald, in accordance with a written summary dated 26 March 2020. Your counsel Mr Chisolm confirmed that it was an agreed summary. There was also footage of the conduct covered by Charge 7 which involved the backing of the car you were driving into the police car. That footage was marked as part of Exhibit A together with the agreed summary.4I note the prosecutor spelled out that you are not to be sentenced for the glass jar being smashed onto the head of Mr Tyson in that house. That was uncharged and it could not be established beyond reasonable doubt that it was even your act. See the last sentence of paragraph 17 of the opening. I also noted that you do not fall to be sentenced for resisting police at the time of your arrest and hence I ignore that reference to a struggle and resisting in paragraph 32. Given that it is an agreed summary, there is just no need for me to go into great detail as to your offending. I will not stray beyond those agreed facts and that is important.
5Very briefly, as you know, over a couple of weeks in February of last year, you committed a number of offences of differing levels of seriousness. Attempted theft of one car between 8 and 9 February, theft of a car on 9 February, theft of a car on 13 February, a home invasion on 15 February, a residential burglary on 23 February and then a sizeable enough theft from a car on that same date up at the Highpoint Shopping Centre. Reports were made to the police of the car you were ultimately caught driving having a connection with earlier offending on that day. Some patrolling police observed the car. You were the driver at one point. You then failed to stop as directed by the police. Hence that summary offence. There was a brief pursuit. Now that is not the subject of any charge, it is only there as part of the context. That led on to the reversing of your car into the police vehicle, hence the charge of aggravated reckless exposure of an emergency services worker to risk by driving. You then escaped in the car. The abandoned car was found later that same day with a large array of stolen property, hence the handling charge. The car also contained some, but not all, of the property stolen from the car at the Highpoint carpark. Finally, you were unlicenced to drive throughout this period and the summary offence of unlicenced driving is a rolled up charge to include those three instances of driving referred to.
6You were arrested on 25 February, interviewed and made denials.
7You were remanded in custody and have remained in custody ever since, a period of 402 days as of the date of the plea, but of course that total has since risen. You pleaded guilty on the day of a contested committal. No witnesses were called.
8There is reference to a co-accused in the summary and the sentence that had been imposed on him. I will not go into that in any detail as your counsel conceded that parity was of no concern here, given the multitude of differences including his younger age, far fewer adult court appearances and even differences in the charges he faced, as well as role.
9As I have said, the maximum penalties are correctly set out in the summary. So much then for my brief summary of the summary. I will sentence in accordance with the full agreed factual statement. This was offending by you, a man, with relevant criminal history. It is though the home invasion that brings it up to this court.
Victim Impact
10There is a single victim impact statement placed before me that is marked as Exhibit B. It relates to the victim, the subject of the home invasion. He was a totally innocent resident just going about his business in his own home. In fact, he was coming out of the bathroom in his own house to find that you and a female offsider had entered his home. He was upstairs when he made the discovery, you were upstairs. It was a very frightening event and has had a sizeable ongoing impact upon him. The crime after all was committed on 15 February of 2019, the victim impact statement is dated 30 March 2020 and plainly
upon a reading of that, it is clear that Mr Tyson is still deeply affected by your crime.11Now I am going to focus, as I must, on the emotional and psychological impacts, as you are not charged with any direct physical assault. I have already mentioned the fact that I will not have regard to the smashing of the glass over his head. I have to be very careful about that. Mr Tyson has been anxious, he has been stressed, he has been depressed. He fears that his home will be invaded in the future. He still receives psychological treatment and his life has changed and obviously for the worse. He has lost confidence. This sort of crime, and for that matter, the allied offence of aggravated burglary, they are notorious for the ability to bring about sizeable impact and it has here and I take that impact into account as I must.
12There are no other impact statements placed before me, but I hardly need one to know how inconvenient it is to have one’s car damaged, or to lose one’s car or to lose one's computer or other personal belongings. Or to conclude that it would be disconcerting, if not frightening, for the occupants of a police car to have a car reverse into that vehicle, even when it was a reckless act as it was here, as opposed to an intentional act of ramming for instance.
In Mitigation
13Your counsel, Mr Chisolm, had prepared an outline of plea submissions dated 31 March, which was marked as Exhibit 1. The outline was sixteen pages in length. Mr Chisholm could not have conducted a more thorough plea on your behalf. He took me to your background in some detail, both in his written outline and in his oral submissions. He relied upon a large number of reports and other written materials. There was a very detailed report indeed from Ms Lofthouse, a neuropsychologist. That was a current report. There was a recent, but very brief report, from Forensicare. There were four older reports, some of them going back to your early days of schooling. The written materials also included CISP bail reports, the NDIS plans and documentation, Justice Health records as well as a letter from your mother. Mr Chisolm made submissions as to the way in which this material could all be used. He made submissions as to the offending, as well as your prospects of rehabilitation into the future. He made submissions as to the relevant purposes of sentencing in this case.
14In the course of the excellent plea conducted on your behalf, he relied upon the following matters in mitigation truthfully;
·The guilty plea;
·The stage of that plea;
·The presence of some limited remorse;
·Your intellectual disability;
·Your drug addiction brought about at a young age by your disadvantaged state or background and/or your intellectual disability;
·The hardship in custody, especially arising from the impact of the COVID-19 pandemic.
·He argued that you had some prospects of rehabilitation.
15So much of the plea was devoted to submissions directed to the issue of the indictment containing a single category 2 offence being Charge 7, the reckless exposure to risk charge. It was argued that you had discharged your burden under s.5 (2H) in two ways and hence, it was at least open to consider dealing with you on that charge and the others, in a combination fashion with a Justice plan attached to a community corrections order. After I had adjourned, but still on the day of the plea, Mr Chisolm sent an email correcting the submission that he had made earlier that day and stating that in fact the home invasion was also a category 2 offence. The prosecutor confirmed that was the position in a later email.
16These matters I should say are pretty easy to overlook. I overlooked it myself I have to say. Anyway the submissions that had been made in that thorough plea, and in that particular area, as well as to disposition remained unchanged and I have clarified that this morning, though the email itself clarified that. Maybe as a matter of completeness, I should have that email marked as an exhibit. I will mark it as Exhibit D.
17Mr Chisolm was arguing for a combination type sentence, but of course that being even theoretically open on either of the category 2 offences was dependent on discharging the burden cast on you by s.5(2H)(c)(i), and s.5(2H)(e). Failing that of course, such an outcome was not even open in theory.
Prosecution
18The prosecutor Ms Harrald argued that you had not discharged that burden. Additionally, she argued on behalf of the Director of Public Prosecutions that such an outcome was not open here, even if you had discharged your burden under the Act. This was serious offending, including a serious enough home invasion by one with relevant history. There was no prosecution challenge to the existence of some of the Verdins factors that you heard discussed. She argued though that there was no basis to reduce specific deterrence at all, or at least in any sizeable fashion in the setting here and she referred me off to the case of Morin [2019] VSCA 301. You knew what you were doing as she said, and knew that it was both wrong and criminal, that was obvious. The reduction of culpability therefore should not be viewed as substantial in this case, she argued. Again, in terms of the drug addiction, she asked rhetorically well what role did it play in the driving offences exactly or the theft of cars? The prosecution did not cavil with the existence of disadvantage in your life or of course, the obvious intellectual disability that you labour under, but it was a matter of what weight to attach to those matters. It is a matter of degree she argued. As to the increased custodial burden brought about by virtue of the COVID-19 virus, the prosecution accepted that there was some increased burden, but there was much by way of speculation in the submissions that had been raised, she argued.
19She argued then against any finding of the existence of substantial and compelling circumstances that are exceptional and rare, which is the test set out in one of the provisions relied upon. She also argued against any substantial reduction in culpability having been established in this case. She argued therefore that there had been no discharge of the burden cast upon you by the s.5(2H) and hence no ability to combine any sentences imposed on those charges with a community corrections order.
20She did though, concede that there could be some moderation of general deterrence, but she argued that specific deterrence was still important. The Director was calling for a term of imprisonment with a head sentence and a non-parole period.
Background
21As I said a moment ago, your background was set out in quite some detail in the written outline, as well as in the various expert reports placed before me. I am not going to set out your background again in detail in my reasons. There is no reason for me to do so, and that is because I accept the personal family background that has been placed before me. I will mention only a short summary. Briefly, you are 27 years of age, born on 4 August 1992. You were raised by your mother who supports you still and has done so through thick and thin it seems to me. So having that support can only be a good thing for you. You have given conflicting accounts of your relationships with various of your mother’s ex-partners. You have denied any physical abuse either directly, when you spoke to Mr Cummins in 2012 or by possible implication, even to Ms Lofthouse, when recently describing your stable housing on page 5. It is possible of course that this later reference was to the actual house location being stable, so I do not take any great issue with that.
22You have given an account to your counsel of physical assaults at the hands of a number of your mother’s partners. It is really impossible for me to know where the truth lies in that respect. I am certainly not satisfied of that fact on the balance of probabilities. However, that is of no great importance, as I do accept, and this is what is important, that there was a level of disruption in your early upbringing. You really struggled at school, you had no relationship to speak of with your father, and your mother had her own battles too it would seem, with alcoholism at one point. Schooling was very tough for you, owing to your intellectual disability and you scarcely really went to school in Year 7. Your formal education was finished early into Year 8, but in truth, you had not done much schooling past Grade 6, and even then, it is clear that you were lagging well behind your year level owing to your intellectual disability. You had an aid at school and you had been identified as having significant deficits. Your life though, I was told was not all negative and you were good at sport and enjoyed that.
23The materials placed before me disclose the existence of some relationships that you had, one with Chanelle when you were 14 to 16, with a daughter born when you were 15 years of age. You have not had any ongoing contact with your daughter Tiara for many years. In your 20’s, you have been in an on again/off again relationship with Crystal. In fact, you are not sure whether you are still in that relationship.
24There is virtually no work history of any note. You have in the past received the disability support pension. I am told that you would like to work, indeed you have been working in custody and have done so for over ten months.
25Drugs and alcohol have been problematic for many years for you. You moved away from alcohol when you were about 18. Again, you have given varying accounts of the drugs you have used and the age which you commenced the drug use. You committed crimes to fund your habit. There has been very little which you have done by way of rehabilitation, with seven days in Moreland Hall as a 16 or 17-year-old. You have done the occasional short course in the past when in custody and there was a Salvation Army course or treatment under the CISP Bail Program at one point. Though there are varying accounts as to drug use, precision as to exactly when you started using drugs and which drugs you used is not important. I do not doubt that you started drug use at a quite young age.
26Your remand has been spent mostly at the MRC and you have worked as a horticulture billet. You have a single cell and have had no visitors at all over the lengthy period of your remand. I wondered why your mother had not been visiting as she is plainly your one support in the community, so I asked
Mr Chisolm. He told me that your mother had been barred from visiting for a year, owing to her attempt to take tobacco into the prison for another inmate. That sanction will shortly be lifted if it has not been already.27You have had issues with drug use inside prison, so the refusal of the Methadone Program must be seen in that light. The explanation is found in the Justice Health notes marked as Exhibit 12. You have been accepted into the NDIS scheme and you hope that funding will assist you. You still have hopes of getting out of prison and then getting a job and living something resembling what you term an ordinary life. That is to say, to get clean of drugs, to live clean and perhaps even see your daughter. Well of course I hope that you can do all of those things when you are released. I hoped the same thing though when I dealt with you back in 2018, on the appeal which you brought to this court, an appeal which I allowed.
28You have a sizeable enough criminal history. I make as plain as I can to you, that you do not fall to be sentenced a second time for any of those past matters. You have been sentenced in the past and you have served those sentences. However, your history before the courts is relevant to my task and that is because I have to make judgments about your prospects of rehabilitation and your risk of reoffence. I have to consider the extent of the need to deter you from offending in the future and the extent of the need to protect the community from you. All of the past offending, with the exception of the home invasion, has been able to be dealt with in the Magistrates Court, which says something about the level of offence seriousness in the past. If there is a positive, it is that at least you are not off committing serious armed robberies or serious crimes of violence.
29You have multiple appearances for a range of offences of varying degrees of seriousness. Multiple convictions for attempted burglary, burglary and theft, as well as theft from vehicles. There are weapons offences, bail offences, criminal damage and recklessly causing injury offences. There are some driving offences as well. You have been given chances by the courts early on and have not taken them, breaching various community corrections orders, as well as suspended sentences and so prison inevitably beckoned for you.
30The community corrections orders had a variety of treatment conditions intended to foster your rehabilitation, including drug and alcohol assessment and testing and other treatment conditions and judicial monitoring even on at least one occasion. Owing to your various failures on a variety of these orders, it appears that you were sent to prison first in mid-2013. By then, you were about 21. That was seemingly a straight six-month term. However, you reoffended upon your release and were sent to prison in March of 2015 and on that occasion, there was a non-parole period fixed. When I saw you in 2018 at the appeal listing before me, I was told that you served that full head sentence despite there being a seven-month non-parole period.
31You reoffended upon release and received a straight 12 month sentence at the Magistrates Court on 20 March 2018. That entry does not appear in the prior convictions, but I was told about it and the next entry, 16 May 2018, is the appeal which came before me. I imposed the same 12 month term, but was persuaded by your counsel, then Mr Barnes I believe it was, to fix a six month non-parole period and you had already served 191 days, which I declared. I was told that you had been accepted onto the NDIS scheme and that things were looking brighter for you. Well Mr Chisholm told me that you served that full head sentence as well.
32Now I cannot know why that was, but there presumably would be sound reasons as to why you have not been paroled in the past. That says nothing about whether you will be paroled in the future. I will not speculate as to what those reasons were. Again though, you emerged into the community without any great structure in place, this time being released on 5 November 2018, a straight release. Sadly then, by February 2019, you were back committing the offences that I must deal with. So this chronology that I have set out in some detail is not too encouraging. The court orders have not deterred you. Prison has not deterred you and there is obviously a need for you to be deterred from future offending.
33As I mentioned previously, you have been in custody now for a sizable period. In recent times, we have had all the uncertainties thrown up by COVID-19 virus. I will return to discuss that issue later as your counsel says that your burden of imprisonment is increased by virtue of that virus. In any event, I take into account your background insofar as I am able to.
34Now I appreciate that already I have been talking for a sizeable period. I am going to go into a level of detail now and I am keenly aware that some, if not much of what I say, may not necessarily be that understandable to you. I will be dealing with some Sentencing Act provisions. It is pretty complex legislation, but I must deliver my findings. So I do apologise in advance for going into such detail, but I cannot just pronounce my end sentence. It is probably all that you are interested in hearing, but I cannot just pronounce it. My reasons must explain why I am doing what I am doing and that is why I have to go into this level of detail.
35I turn then to some of the other matters that have been raised in mitigation. The first of those is your guilty plea.
Guilty plea
36You have pleaded guilty. Now I ignore the fact of the contested committal being listed. It settled on that day without any witnesses being called, so I will treat it as an early plea. You have taken early responsibility for your crimes. By your plea, you have admitted your guilt. You have in this way facilitated the course of justice. The community has been saved the time, cost and effort associated with a committal in the Magistrates Court, or a trial up in this court. All the witnesses, including poor Mr Tyson, the victim of the home invasion, have been spared the experience of coming along to court and giving evidence. Giving evidence can be a stressful experience. I take into account your early guilty plea. There must be a sizeable reduction in sentence owing to that fact.
Remorse
37Now Mr Chisolm did not suggest that there was much by way of evidence of remorse here, but did point to your expressed concerns about the impact upon the victim of the home invasion, that you were a bit dismayed that you had caused that impact, as you had not envisaged anyone being within the premises. Mr Chisolm submitted on your behalf that there was limited remorse in this case. You have pleaded guilty and done so at an early stage. A guilty plea is often indicative of some remorse. I will accept your counsel’s submissions. I find the existence of some remorse here, mainly as evidenced by your guilty plea. I take that into account in mitigation.
Evidence of drug addiction in conjunction with background
38Your counsel relied upon a combination of factors being your drug addiction and drug use, your disadvantaged background and your intellectual disability. They are all in a way entangled. He did not really press a Bugmy [2013] HCA 37 type submission. Now that is the name of a case that is dealing with some of these issues. The matters leading to reduction of culpability were said to flow primarily from your early drug addiction. Of course I am obliged to take into account your background and I do, insofar as the law permits me to. I will deal discretely later in these reasons with the application of the Verdins [2007] VSCA 102 principles arising from your intellectual disability. The fact is though, when I consider your background, your early background was hardly enviable.
39You grew up essentially without a father and I accept that at the least, there was disruption with movement of your mother’s boyfriends through your life. This all occurred against a backdrop of falling further and further behind at school and that was produced by your intellectual disability. I have no doubt about that. You had no say in any of this. It was just the hand dealt to you and frankly, it was not much of a hand. You left school at an alarmingly young age and in a way, it is not that surprising that you started to abuse alcohol and then drugs at a young age. You were really in no way well prepared for any mainstream life or work for instance. Drugs then became your norm and committing crime to obtain them was just part of your life.
40Now these offences were in part committed by a person who was addicted to drugs and who was under the effects of drugs. Normally that would be of no mitigatory value at all and would provide only some explanation or context. Here, your drug use commenced at a very young age and in the setting I have described, and to that extent, I believe you can be distinguished from an older and better equipped offender who has made a free and rational choice to use drugs. The case law suggests that such a person has an understanding as to the predictable consequences of that choice. That sort of person, a mature person is making a free and informed choice. I must say I have often wondered about that line of authority. The extent to which even a mature adult offender has any real understanding of how low he or she may sink in the future, when he or she first uses drugs in my view is highly debateable.
41In any event, you were both young and intellectually disabled when you first used drugs and though of course no one forced them into your body, you chose to do that yourself, I doubt that you could have had any real sense of where this would all lead you. So I believe I can in fact give some limited weight to the McKee Brooks [2003] VSCA 16 submission made on your behalf. There can be some modest reduction in your culpability and some moderation of sentence and an exhaustive consideration of the dispositions open to the court that may address those issues, which bring you back before the courts in the cycle you have been repeating over the years.
42The fact is though, that it cannot dominate my task. You have a choice now as an adult, as to whether you will continue to use drugs and to commit crime. You are not forced into offending. The courts have tried to lead you away from offending and have imposed treatment conditions to go to the heart of the cause. You know that you offend to obtain drugs and must have some understanding that the addiction needs to be addressed and yet, you choose for whatever reason, not to address it. A drug addiction cannot be a licence to offend. Further, what does the theft of the cars or attempted theft of the car, or unlicensed driving have to do with your addiction? These matters in mitigation - and I do pay regard to them in a mitigatory fashion, it is an unusual case in that sense, but they can only be given limited weight. I do take them into account in your favour.
Intellectual disability and Verdins
43I move then to the aspect of intellectual disability and the discussion of the case of Verdins. I could spend the next hour dissecting in these reasons the various materials placed before me which discuss your level of functioning. There is no point me doing that. My reasons will be quite long enough as is. You will have to trust me when I say that I have read all of those materials again and that I do take them into account. You hopefully would take me at my word, as you know that I had previously read Ms Cidoni’s report when you came before me in 2018 and that on that occasion, I gave weight to the Verdins factors when I actually allowed your appeal and I do so again in this case. You have sizeable cognitive impairment and you have had them throughout your entire life.
44Your low level of functioning can be tracked through the various materials placed before me, including some school assessments in Grade 3 and 5. You have what is described by Ms Lofthouse as a mild intellectual disability, but that adjective 'mild' has to be seen for what it is. If someone has a mild cough, it might equate with something that is very minor. The use of the word 'mild' is something of a term of art when applied in this way by a neuropsychologist to describe an intellectual disability. There is nothing mild or minor about the impacts that she describes. They are significant global cognitive impairments or deficits as disclosed in her very lengthy report.
45So yes, I accept now, as I accepted in 2018, that the first five principles from the case of Verdins can be given some weight in this case. The issue, as it always is, is what weight? That would always depend on the nature and the effect of the condition. I believe there can be some reduction in your moral culpability. However, your condition in no way deprives you of the ability to understand what you are doing. You know for instance that burglary is quite wrong, not just wrong, but seriously illegal. You are not acting under any delusion or truly clouded judgment in that respect. I am not satisfied on the balance of probabilities that your intellectual disability was greatly contributing to the decision to burgle houses or steal cars or from cars, or to handle stolen goods. These offences make perfect sense. They are perfectly rational crimes, the sorts of crimes committed by people who have no intellectual disability. You were a drug addict. You were committing some property offences to fund your drug habit. You did so with an understanding of what you were doing and why, as well as how wrong it was. You knew that it involved serious criminal behaviour. Of that I have no doubt at all.
46You were also doing many of these acts whilst disinhibited by drugs. So whilst there is talk of impulsiveness in the report of Ms Lofthouse, these were on the whole, not impulsive offences. The exception might be Charge 7, but that impulsiveness was derived from the actual situation you were in and the perfectly understandable and rational panic in such a setting and the desire to escape the scene. The other offences though were not spontaneous in any shape or form. The realistic connection then required to even attract the first limb of Verdins is pretty sketchy and thin in this case, in my view, given that
Ms Lofthouse on page 16 describes joint contributing factors being your impairment and your drug use. It is impossible to disentangle the two.47Drug use impacts upon a person’s decision making. Well what I have to do is have regard to the perfectly rational aspects of the offending. You considered what you were doing. It is obvious just reading the summary and looking at the timing of some of these offences, you were selecting vehicles, stealing them, driving them, selecting premises, entering premises with a view to steal, presumably looking through the window of the parked car to see what was of value inside before the window was broken. I do not believe there is any basis to allow for any substantial or significant reduction in your moral culpability here, but I will still give the first limb some weight. Yes, your intellectual disability undoubtedly touches upon the appropriate disposition, so the second limb is enlivened, but with offences as serious as some of these, by a man with a sizeable enough history and the past lack of response to court orders disclosed in that criminal history, the options really have run out.
48I do not believe that there can be any significant reduction in the weight to be given to general deterrence. Again, I have to look at the condition and its impact. I am prepared to moderate that purpose to a degree, but it is far from eliminated, I can tell you. Specific deterrence is achievable here. You can, and must be deterred. You have been given past opportunities by the courts, which you have not taken and I am not that optimistic as to your prospects of rehabilitation. Past community corrections orders, even prison sentences have not deterred you and you offended within two months or so of your last release from prison. You must understand, you are not free to flout the law. I will give some modest reduction to specific deterrence. The Crown say I should not, but I disagree with that submission. However, it is still an important purpose of sentencing in this case. Finally, I also find that there is some pretty modest increased custodial burden posed by your intellectual disabilities.
Increased burden
49I turn now to the submissions made as to impact of the COVID-19 upon my sentencing task. The submission made by Mr Chisolm is that it will make your time in custody more difficult. I do not doubt that at all. The global pandemic is worrying for everyone. It has already had some direct impacts upon prisoners. Visiting rights have been suspended. Now you have not been receiving any visitors at all throughout your lengthy remand, but your mother’s prohibition upon visiting is soon to be lifted, if it has not already been lifted. She will be unlikely to be able to visit you once it is lifted because prison visits have been suspended. Lockdowns are already to some extent being instituted.
50As a prisoner, you will not have the ability of going where you want to go, or distancing yourself from other people. You will have no real autonomy as a prisoner. As I said in a case a few weeks ago, we in the criminal justice system are waiting with bated breath as we consider the possible impacts of this global pandemic, if and when it hits the prison. It seems to me likely that it will hit the prison. The Court of Appeal first dealt with this concept in a decision of Brown [2020] VSCA 60, that was in late March. They correctly counselled Judges against speculating. There have been countless decisions since in the Supreme Court and also the Court of Appeal. See for instance the case of Re Broes [2020] VSC 128; Re McCann [2020] VSC 138. Re Tong [2020] VSC 141, Madex [2020] VSC 145, Sazimanoska [2020] VSCA 66 and Nguyen [2020] VSCA 76. Also, more recent cases of Nicholls [2020] VSC 189 and Re Diab [2020] VSC 196 from earlier this week. I have read all of those cases. It should be noted that very many of these decisions concern bail applications, where there are very different considerations in play, as well as different standards to be applied.
51It is still too early to know how this is all actually going to play out in the prisons. It is a rapidly evolving setting. It changes almost from day to day. It has, for instance, changed considerably since the plea was conducted before me on
2 April, with differing stances in place by Corrections, in the way that new prisoners will be isolated upon reception. It has changed very significantly in the community since I last saw you with, I must say, a much brighter outlook, with a strong flattening of the curve and very significant reduction in reported new infections and talk of relaxation of restrictions. How long will the virus affect us? What steps will be taken by Corrections? How many prisoners will be infected? How will those not infected be impacted? I cannot answer any of these questions. I do not accept the suggestion that I can take judicial notice of the restrictions which will appear. I cannot know on the balance of probabilities, how it is likely to actually impact upon you. Only time will tell.52I cannot know what true impact it will have upon serving prisoners or classes of prisoners. I do not doubt though that the pandemic will be generating some stress amongst prisoners and their families. Will there be lockdowns in the future and to what extent? Will there be allowances or sentence adjustments made by the authorities by way or emergency management days being declared? I cannot know for sure, so I certainly cannot work on the theory that there will be those reductions. It seems likely though that there will be some lockdowns, as it is hard to know how else it might be managed given that social distancing is the key to avoiding the spread of this virus and how else can that really be instituted in a prison setting?
53I suppose one way it might be managed would be by removing the infected prisoners. Will that happen? Again, I do not know. Lockdowns would invariably limit social interaction. They would be likely to limit work opportunities and even access to courses and programs. As I have said already, all visits have to this point been suspended. All of these things occurring, or even worrying about these things taking place into the future will increase your burden. I accept that. There is probably no good time to be in prison when one thinks about it, however, this is certainly not a good time to be there. There is an increased stress in play. So I accept that there is this increased custodial burden here.
54There is nothing to suggest that you are in a high risk group or that you have any particular health vulnerabilities. I am not satisfied that it is open to me to reach any view as to whether you are at a greater risk of infection than were you not in prison. It is impossible for me to know that. A drug addict out in the community chasing and using drugs and associating with other drug users and criminals, is probably not the best model of social distancing when you think about it. As I say, it is not my job to speculate as to the manner in which COVID cases will be dealt with in prison. However, as I say, these things are all worrying for you, as they will be for every prisoner and I do take them into account in the ways that I have pronounced. There is this increased burden.
Rehabilitation
55I turn then to your prospects of rehabilitation. What are your prospects of rehabilitation? You have a lengthy criminal history. You have been given chances by the courts and you have not taken them. You have breached virtually every community corrections order or suspended sentence that has ever been imposed. Inevitably, that approach led to prison and not even being sent to prison has stopped you from offending. You served three prison sentences. The first was a straight six months. You then reoffended. Then you served out two complete head sentences and responded then by committing further similar offences upon your release. As I said earlier, you were released in early November 2018 and committed this multitude of offending in February 2019.
56You have a long-term issue with drugs which you have been either unable or unwilling to meaningfully address. You also have the intellectual disability which is said to contribute to your commission of crimes and one thing I know for sure is that this disability will not leave you. It is a static condition. You have virtually no history of employment, and little by way of training or job skills. You have pleaded guilty at an early stage. I think there is actually some remorse here. You are working in custody. You still have a supportive mother, somewhere to live and the added supports which hopefully can be accessed via the NDIS. I am told that after some initial hiccups in prison, you are now drug free. You have spent a very sizable period in custody already by way of your time on remand. You have plans for the future and you hope to live some sort of normal existence. As I said earlier, I hope that you can. I hope that you can succeed.
57It is my belief that the time you have already spent in prison, and the sentence which lies ahead for you, will serve to deter you to a degree. From memory,
Mr Chisolm, I do not think applied any particular adjective to describe your prospects. He was urging me to find that there were some prospects. He was urging me to consider a community corrections order with a justice plan, in combination with a term of imprisonment and he was arguing that that style of sentence would maximum your future prospects and enhance both those prospects and community protection for that matter.58Ultimately, I can only be quite guarded here. I am certainly not going to write you off, I can tell you that. I am satisfied that you have some realistic prospects of rehabilitation, but you will have to work hard. I cannot put it much higher than that I am afraid, and those prospects of rehabilitation will be conditional upon your complete abstinence from drugs into the future. You just cannot use drugs. Abstinence has eluded you for many years now. You have enough significant issues in your life without adding into the mix, the use of drugs of dependence. They will only further damage you and your prospects. I would go as far as saying that if you do not desist from drug use in the future, you will have almost no prospects of rehabilitating.
Category 2 offences and section 5 (2 H)
59So much of the plea focused upon the legal issues and the sentencing ramifications thrown up by the existence of what was said to be a single Category 2 offence. For it is impossible to impose a combination type sentence for such an offence, unless one falls into an exception set out within the Sentencing Act. It then transpired of course that the most serious offence before me, the home invasion, was also a Category 2 offence. So I have two Category 2 offences that I have to deal with. In each case, the Sentencing Act quite deliberately sets out a different approach for Judges when dealing with such offences. It modifies the fundamental principles of sentencing such as parsimony and proportionality. Prison is required and not in combination with a community corrections order, unless an exception is established by the offender. The exception has to be established on the balance of probabilities not to the higher criminal standard as is suggested in error on one occasion in the written submissions of Mr Chisolm (see page 2, paragraph [1](d)(ii)).
60Those exceptions are set out in paragraph (2H) of s.5 of the Sentencing Act. Only two are relied upon here. Your counsel, in his written submissions was relying upon s.5 (2H)(c)(i) and (ii), as well as 5(2H)(e). He abandoned his submissions as to (2H)(c)(ii), stating that on the materials available, it was not open to find that high level of increased burden specified in that provision. That concession was plainly correct, as there was only pretty feint support for any increased burden owing to the intellectual disability, much less the substantially and materially greater than ordinary burden required. Again, I apologise for going into such level of detail and I understand how difficult this will be for you to follow, but I must pronounce my findings.
Section 5(2H)(c)(i)
61So Mr Chisholm argued that you had proven on the balance of probabilities, that at the time of the commission of the offence, you had impaired mental functioning, that was causally linked to the commission of the offence and which substantially reduced your culpability. Impaired mental functioning certainly includes an intellectual disability, there is no doubt about that. I suspect I have already provided my finding on this topic when dealing with the Verdins submissions, so I will not restate all that I said then. I am satisfied that you had the intellectual disability and hence the impaired mental functioning at the time of the commission of the offence. No doubt about that.
62I am satisfied on the materials, that it had some casual connection and that the drugs were not the sole cause and hence s.5(2HA) does not apply. However, I am not satisfied that it substantially reduced your culpability. I am not satisfied of that on the balance of probabilities. As I said, you were committing rational planned offences. They were not spontaneous. You knew exactly what you were doing and knew it was both seriously wrong and criminal. I am not satisfied that there was any substantial reduction of your culpability owing to your impaired mental functioning, so I am not satisfied that you have discharged your burden under that provision. That is s.5(2H)(c)(i).
Section 5(2H)(e)
63Alternatively, or in addition, Mr Chisolm submitted that there were substantial and compelling circumstances that are exceptional and rare and that justify not imprisoning you. That is the exception thrown up by s.5(2H)(e). I should say, I have not already said it, but I will say it now, I have read all of the cases referred to by Mr Chisolm and I had done so even prior to coming on to the Bench at the time of the plea. That includes the COVID-19 cases, including those that have been delivered since I heard the plea.
64I also had more than a fair understanding of the particular special provisions in the Sentencing Act, as I dealt with a slightly different provision, but one with similar exceptions when dealing with a Directors’ appeal against sentence last year, in relation to an assault upon a paramedic. It was a case that attracted a fair bit of publicity. It was the case of Haberfield. See Haberfield [2019] VCC 2082. I am not going to restate all the principles that apply in your case. Frankly, I am not greatly assisted by what other Judges at my level have done in other cases. That does not provide any answer to me in relation to this case. It would always be determined on a case by case basis.
65I must pay attention though to the words used in the subsection and also by applying other provisions of the Act, which give guidance as to the interpretation of those words. So firstly I must consider the actual words used in the provision. The bar is raised very high here by the words actually employed in the provisions. Not just substantial and compelling, that is already a very high bar as cases interpreting that older provision made clear. See the case of Hudgson [2016] VSCA 254. I cannot just overlook the words exceptional and rare. They have been added in to make it even harder to establish. The bar is raised about as high as it can be without becoming totally illusory.
66In determining whether there are substantial and compelling circumstances, Parliament then tells judicial officers directly in s.5 ss (2HC) to pay greater regard to general deterrence and denunciation, than to other sentencing purposes, and to give less weight to the personal circumstances of the offender. The court is told not to take into account previous good character other than the absence of prior convictions. Not to take into account an early plea of guilty or prospects of rehabilitation. That, together with s.5(2I)(a), signals Parliament’s stated intention that ordinarily for a Category 2 offence, a term of imprisonment is to be imposed.
67Again, I have probably already previewed my finding on this topic when dealing with the increased custodial burden and delivering my finding in that area. I do not believe that any of the matters raised on page 13 or 14 of the written submissions, (see for instance paragraphs m(i), (ii) and n(i), (ii) and (iii)), either individually or in combination, rise to the level of being substantial and compelling circumstances which are exceptional and rare and which justify not making an order as to imprisonment here. I do not ignore your cognitive impairment or your background of your drug addiction. Undoubtedly the global pandemic is rare in the extreme. It will lead to an increased burden and I have spoken already of that. But none of these matters in my view, rise to that very high level either individually or in combination. I am not satisfied on the balance of probabilities that the exception is made out.
68Even had I been satisfied of the proof of either exception, that would not, in my view, have freed me up from my obligation of passing an appropriate sentence and quite independent of these provisions, there could surely be only one disposition open especially for the home invasion; namely prison.
The Offences
69I am not going to say much more about the offending. I have already summarised it broadly and I will sentence according to the agreed statement of facts. The home invasion is obviously the most serious of the offences and it was serious, make no mistake. I know that you had no intention of disturbing the occupant. You were probably very surprised when he came out of the bathroom, but of course you entered these premises in company with another person as trespassers and with intent to steal. The occupant happened to be present and those matters made it a home invasion. Your being in company was critical to that offence being made out.
70It was serious offending, though you do not fall to be sentenced for the glass being broken over his head or any intentional or for that matter, reckless causing of injury. It was still a frightening and serious offence with sizeable impact. Then we have multiple car thefts and the attempted car theft. All pretty brazen offending when one looks at the summary. I note that the car, the subject of Charge 2, was stolen as the driver had left his vehicle to go inside to collect something. The car the subject of Charge 3 was taken from a school carpark, even after you had been discovered acting suspiciously by a maintenance worker. You were confronted and not even the parking of a car to block your exit deterred you. You rammed that car and mounted the nature strip and were off. The burglary took place at between 6 and 7 am after you had entered a car in the driveway and used a remote control to open the garage door.
71There was a sizeable theft from the car at High point, a sizeable handling as disclosed in the summary and then the conduct with the police car. For what it is worth, I was expecting to see something far worse when I read the police statements describing the collision. The footage makes it clear enough that it is not in the worst category of that style of offending by a longshot and there is recklessness at play there and the desire to escape, and the car came into the position behind your car as you were in the act of reversing. So reckless rather than intentional. But the property offences are all serious enough and you have obviously a highly relevant history. Other than the driving into the police car, as I said earlier, this was not spontaneous conduct, but rather was planned criminal activity. You had no business even being in a car of course and yet you were, on three days, driving without licence and then failing to stop on that final occasion.
Purposes
72I have to consider a number of purposes of sentencing. I must pay regard to your prospects of rehabilitation. As I have said, it is hard not to be guarded, but I am prepared to find that you have realistic prospects into the future. I am required to punish you for your crimes, but I have got to do that justly and proportionately. I must also denounce your conduct.
73I must pay appropriate weight to specific deterrence. I have spoken of some moderation owing to intellectual disability, but there is still the need to deter you from offending into the future. That can be achieved and it must be achieved. Community protection is also of some importance. Those factors that have been raised in support of the Verdins principles relate to an intellectual impairment and as I have said, that is something which will not alter. The need for community protection is clear here. I must give it at least some weight.
74General deterrence, though moderated, is by no means eliminated. It is still is an important enough purpose of sentencing here. This court must send a clear message to others in the community who may be thinking of committing this style of crime. Likeminded offenders must be deterred. As to the police, they are doing a difficult enough job without having their vehicles struck, even in the way this one was struck, which I view as nowhere near at the top of offence seriousness. It is a long way removed in my judgment from a front on ramming of a car which we sometimes see. That is not what was happening here.
75I must have regard to the maximum penalties. I also have to pay regard to current sentencing practices and the impact of your crimes. As to current sentencing practices, it is not a single controlling factor. There is not even a Sentencing Advisory Council snapshot for home invasion or the aggravated reckless exposure to risk by driving charge. Nor even Sentencing Advisory Council online data for those two offences. I have looked at some instances of sentencing for home invasions as disclosed in the new Judicial College of Victoria Sentencing Manual (see 6.1.4.1 & 2).
76But I am sentencing you for your crimes and that is not a mathematical task. No amount of looking at other cases or even casting around for statistics will provide the answer to my job. Other cases are not precedents and statistics always have inherent limitations. Many of those other cases that I have seen have aspects of confrontation as part of the motivation for the entry. They were trespassing with intent to assault and sometimes even with the carriage of weapons. They are very different events. Confrontation was actually no part of your motivation to enter these premises. You entered in company, intending to steal in what you thought, and no doubt hoped, was an unoccupied house.
77None the less of course, given the nature of the entry in company, it was a home invasion and home invasion is a serious crime.
78I take into account all of the submissions made by your counsel. I take into account also of course all of the written materials.
Parity
79Your counsel made it plain that he was not making a submission as to parity of sentence. Your co-accused faced a number of different charges. There were some in common, but he was not dealt with on the home invasion, he did not go into the house and he was dealt with for a burglary. There was an unrelated car theft. I know virtually nothing about his individual circumstances other than the fact that he must also have had an intellectual disability given the justice plan that was employed. He was also a good deal younger than you and with only one previous adult court outing. The combination sentence imposed upon him is also quite opaque. It is for these various reasons that your counsel placed no reliance on the principles of parity of sentence and that was a sensible end position. Of course, I will not ignore anything placed before me and the details of that sentence have been placed before me, but that sentence imposed on your co-accused casts no real light at all on the sentence required in your case.
Totality
80I have taken a last look at the orders that I intend to make and I have done that to guard against a crushing outcome and also to ensure that the total effect of my sentences is commensurate with your criminality here. Here of course we have differing crimes, targeting differing victims on differing days, no doubt with differing impacts. There must be a level of cumulation in the circumstances. I have to pay some regard to the provisions of s.16(3D), which reverses the usual presumption of concurrency in relation to the sentences passed upon the two Category 2 offences. However, there is no requirement to show exceptional circumstances and I will moderate the extent of cumulation here, across the indictment actually, to give weight to the important principle of totality.
81Prison is always a disposition of last resort. Your counsel was urging me to impose a combination disposition, namely prison, with release onto a community corrections order with a Justice Plan attached. But that was conditional upon my being satisfied of the discharge of your burden under s.5 ss (2H) of the Sentencing Act. I am not so satisfied that that burden has been discharged, but even had I been, I would have sent you to prison in the circumstances and not by way of combination sentence.
82Mr Chisholm’s secondary position was that I should impose a straight sentence. Well that is simply not open here. I must pass appropriate sentences and then I must order an appropriate level of cumulation and that leads to a sentence of imprisonment of a dimension where the law demands that I fix a non-parole period. When I pass a sentence of two years or more, as I must here, I am required as a matter of law to fix a non-parole period, other than in some very rare circumstances provided for in s.11 of the Sentencing Act, circumstances which in no way apply here to you.
83What I will do though, is provide for a lengthy gap between your head sentence and the non-parole period. I believe that release onto parole provides your best bet for rehabilitation and reintegration into the community. It provides the best chance of community protection as well. A straight unsupervised release is a bit depressing to contemplate, as it has failed now on three occasions. I will provide for at least the possibility of your early release by fixing a modest enough non-parole period. Now, I cannot speculate as to whether you will actually be released on parole, and nothing that I will say or have said already as to the advantages of structured release, detracts from that position. I must and do proceed on the basis that you will serve every day of the head sentence that I am shortly to pronounce and that is because I am not allowed to take into account the possibility of your early release on parole. The Adult Parole Board will make that decision as to whether you can be released and that has nothing to do with me. It will really be between you and them.
84However, it is my view that a structured release will give you and the community the greatest hope. That level of structure would surely be important and you have demonstrated now on three occasions, that an unsupervised release has not been effective. I will provide to the Adult Parole Board my reasons, as well as the various reports filed on the plea, to assist them in no doubt what will be a difficult task. Of course their task is never simple and they are engaging in it, not me. They will need to reflect, at the appropriate time, on very many things including your risk upon release and your conduct in prison. I have no control over any of those things. You do. My tip to you then is to behave very well as you continue to serve this sentence, to do all that is asked of you, to remain drug free, to do everything as asked. Those things cannot hurt your prospects upon your ultimate release, whenever that is. Again though, I make it plain, that I sentence on the understanding that you will serve every day of my head sentence and that whether you will be paroled or not is not something I can take into account. I am obliged to fix a non-parole period and I do.
Sentence
85I will have you remain seated given that we are using the video link in this process and I will pass sentence upon you. Now you will lose track of the particular numbers, I will tell you what the total effective sentence is and then I will fix the non-parole period. So you will not really know the outcome until we get to the very end of it.
Indictment
86So on Charge 1, the attempted theft of a car, you are convicted and sentenced to six months imprisonment.
87On Charge 2, theft of a car, you are convicted and sentenced to eight months imprisonment.
88On Charge 3, theft of a car, you are convicted and sentenced to 10 months imprisonment in relation to that charge.
89On Charge 4, the home invasion, I convict and sentence you to two years imprisonment. That will be the base sentence.
90On Charge 5, burglary, you are convicted and sentence to 10 months imprisonment.
91On Charge 6, theft from car, you are convicted and sentenced to five months imprisonment.
92On Charge 7, aggravated recklessly exposing an emergency services worker to risk by driving, you are convicted and sentenced to two months imprisonment.
93On Charge 8, handling stolen goods, you are convicted and sentenced to six months imprisonment.
Related summary offences
94On the summary charge of fail to stop (Charge 20), you are convicted and sentenced to 14 days imprisonment.
95On the summary offence of unlicenced driving, (Charge 21), that being a rolled up charge relating to the three instances of driving, you are convicted and sentenced to 21 days imprisonment.
Cumulation
96The base sentence is the two years imposed on the home invasion, (Charge 4). I direct then that :
§Seven days of the sentence imposed on the summary unlicenced driving charge, (add seven days).
§14 days of the sentence imposed on the reckless exposure to risk charge (Charge 7), (add 14 days)
§Two months of the sentences imposed on each of Charges 1, 2, 6 and 8 (adds eight months); and
§Three months of the sentences imposed on each of Charges 3 and 5 (adds six months)
is to be served cumulatively upon the base sentence and upon each other. The sentence on the fail to stop charge will be served concurrently.
I have to this extent, otherwise directed under the provisions of s.16(3D).
TES
97Now as I have said, you will be having difficulty following those orders for cumulation. Those orders result in a total effective sentence of three years, two months and 21 days imprisonment. (38 months and 21 days). I am though, for the reasons I have pronounced, going to fix what I judge to be a quite modest non-parole period.
Non-parole period
98I fix a period of 18 months during which you will not be eligible for release on parole.
Section 18 pre-sentence detention
99You have already served 424 days by way of pre-sentence detention. So that declaration is to be entered into the records of the court. You will get credit for that obviously.
Licence orders
100On Charges 1, 2 and 3, they are all relating to either theft of a motor vehicle or an attempted theft, in each case, I order that all licences and permits to drive are cancelled and you are disqualified from driving in this State for a period of six months on each of those charges commencing from today.
101On Charge 7, all licences and permits to drive are cancelled and you are disqualified from driving in this State for a period of two years commencing from today.
102On the summary offence of fail to stop, again all licences and permits to drive are cancelled and you are disqualified from driving in this State for a period of six months commencing from today.
Section 6AAA.
103I have taken into account your guilty plea and reduced your sentence accordingly. If you had pleaded not guilty and been found guilty of these offences, I would have convicted and sentenced you to five years imprisonment. I would have fixed a non-parole period of three and a half years in that setting and that statement also has to be entered into the records of the court. Let me just see if there are any other matters. Ms Singh, are there any - - -
104MS SINGH: No, Your Honour.
105HIS HONOUR: Hold on, is there a disposal order is there? I am just being handed one by my - - -
106MS SINGH: Apologies Your Honour, yes there is a disposal order in relation to a cigarette butt and a Woolworths receipt.
107HIS HONOUR: Yes all right. Mr Chisholm, I am assuming there is no issue in terms of that?
108MR CHISHOLM: Your Honour, no objection taken. I'm sorry. No objection to the state taking the cigarette butt and receipt.
109HIS HONOUR: All right. Are there any other matters that I need to deal with, either of you?
110MR CHISHOLM: No, Your Honour. May I just please clarify, in respect of the licence cancellation, was it Charges 1, 2 and 3 in respect of which it was six months?
111HIS HONOUR: Yes.
112MR CHISHOLM: So I've got that right?
113HIS HONOUR: Yes, that's right and then - - -
114MR CHISHOLM: No other issues.
115HIS HONOUR: I see. Ms Singh, any other matters I need to deal with once I have dealt with the disposal?
116MS SINGH: No, Your Honour.
117HIS HONOUR: Very well, thank you. I will just sign that disposal order.
118MR CHISHOLM: Your Honour, may I just ask to assist Mr Smith who may not be able to do the maths, if it could be indicated to him that the 424 days equates to 14 months of that 18 months non-parole period he has already done, if Your Honour - if that's permissible just to indicate that to him?
119HIS HONOUR: Well you have just indicated it to him, but yes I will do that then. Anyway I have signed the disposal order. There is no issue in terms of me making that order, so I order pursuant to the provisions of s.78 of the Confiscation Act, that the property referred to - a Woolworths receipt and cigarette butt - be forfeited and handled in the way contemplated by that order. That statement is to be entered into the records of the court.
120All right, well that completes the matter. Mr Smith, again I apologise for taking so long and going into pretty complex legal matters, but you need to know and even if you are not following it, your counsel needs to understand, and others for that matter, why I have done what I have done. So as you will have explained to you, I have passed a head sentence of 38 months and 21 days. So that is three years and two months and 21 days. I have fixed a non-parole period of 18 months and you have already served 424 days. I have not done the calculations, but Mr Chisholm says well that equates to about 14 months. So you are not that far removed from being in a position where you can make application for parole. Do you understand?
121OFFENDER: Yes.
122HIS HONOUR: As I say, I have no further control over this. I have passed the sentence I have passed, the rest is in your court and all I can suggest is that you continue to behave yourself in custody and do everything that is asked of you to try and maximise your prospects of being paroled, but that is between you and the Adult Parole Board, not me.
Mr Chisholm, I have got a bail application that is getting underway in about ten minutes. If you want to, I am happy enough to leave the Bench and give you a handful of minutes with your client, using this link if you want?123MR CHISHOLM: Your Honour, I was only seeking to explain to - I won't take it up because I was just going to explain the numbers to Mr Smith and then organise a (indistinct) conference where I have a bit longer and can take the time. So all I might indicate to Mr Smith is those numbers have been explained quite clearly to him now.
124HIS HONOUR: Yes.
125MR CHISHOLM: And I will organise - sorry, if I talk directly Your Honour, but I will organise - - -
126HIS HONOUR: That's all right.
127MR CHISHOLM: - - - a video or telephone conference to the prison within the next week, - - -
128HIS HONOUR: Very well, that's fine then.
129MR CHISHOLM: - - - so it can accommodate it.
130HIS HONOUR: All right well you have heard that Mr Smith, so Mr Chisholm will organise a conference using some form of video link technology and do that within the next week, all right? So I think that completes the matters, so what I might do is simply disconnect the various devices please.
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