Director of Public Prosecutions v Stewart
[2023] VCC 973
•9 June 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT GEELONG
criminal JURISDICTION
CR 23-00278
Indictment No. N11726516
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| Zach STEWART |
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JUDGE: | HIS HONOUR JUDGE TINNEY | |
WHERE HELD: | Geelong | |
DATE OF HEARING: | 7 June 2023 | |
DATE OF SENTENCE: | 9 June 2023 | |
CASE MAY BE CITED AS: | DPP v Stewart | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 973 | |
REASONS FOR SENTENCE
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Catchwords: Aggravated burglary; home invasion; theft of car x 5, criminal damage, theft; burglary; 21 years of age at time of sentence. Sizeable and relevant prior criminal history including 10 prior convictions for aggravated burglary. Early plea - Worboyes v The Queen [2021] VSCA 169. Disadvantaged background - Bugmy v The Queen [2013] HCA 37; R v Verdins [2007] VSCA 102 (intellectual disability) COVID-19. Home Invasion - Category 2 offence; s5(2H)
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr A. Moore | Office of Public Prosecutions |
| For the Accused | Mr J. Barrera | Stary Norton Halphen |
HIS HONOUR:
1 Zach Stewart, earlier this week, you pleaded guilty to one charge each of home invasion, aggravated burglary, criminal damage, theft and burglary as well as five charges of theft of a car. They are the 10 charges on the indictment. You have also pleaded guilty to three related summary offences, being one charge of committing an indictable offence whilst on bail and two charges of breaching the conditions of your bail.
2 You are 21 years of age and you have a worrying prior criminal history, which includes 10 prior convictions for aggravated burglary.
Facts
3 The prosecutor Mr Moore opened the case to me on Wednesday of this week in accordance with the further revised summary dated 11 April 2023.
4 Your counsel Mr Barrera informed the court that this was an agreed summary. That summary was marked as Exhibit A on the plea and I see no need to restate the agreed facts in any great detail now in my reasons.
5 I will sentence pursuant to those agreed facts.
6 So that my reasons might be understood by anyone accessing them, I provide the briefest of summaries of your offending.
7 You were bailed from the Geelong police station on 21 July in relation to a charge of attempted theft of a car. There was a residential condition as well as a curfew and prohibition upon the use of any drug of dependence. Within days, you were breaching your bail and committing these serious offences. Charge 1 and Charge 2 relate to your entry in the early hours of the morning into the home of Ms Ivanecky and the theft of her car. It was around 1 am. She was asleep within what should have been the safety of her home. You were in company, and you stole the keys to her Peugeot. Her car was then stolen and then used to drive to an address in Corio where you and other accused damaged a car and unit belonging to Mr Michealowsky. That is the subject of Charge 3. There was some mention made in the depositional material which I raised in discussion with your counsel of this action seemingly arising out of a bit of a non-incident at a bus stop earlier in the day. Maybe that was the motivation, maybe it was not; it does not actually matter. Ultimately, I cannot determine why you chose to commit the offence. It was extraordinary conduct and no explanation at all has been provided by your counsel as to why you did what you did.
8 Four days later you committed the home invasion upon Mr Sheahan's home and you stole the items listed in Charge 5 on the indictment. The entry the subject of Charge 4, that is the home invasion, was at around 3.30 am as Mr Sheahan slept within what should have been the security of his home. As with the aggravated burglary I have already mentioned, the intent upon entry was to steal.
9 Charges 6, 7, 8 and 9 relate to your driving cars that had very recently been stolen. In most cases, keys had been stolen in the course of an illegal entry when residents were sleeping within their homes. In any event, the precise circumstances of the keys going missing is academic, as I am not dealing with you for those aggravated burglaries or being a party to any such entry. I am sentencing you for theft of the cars in that you were driving them at the relevant time. As with the other offences already covered to this point, incredibly your offsider was filming some of your conduct. I was informed by the prosecutor without objection that a number of the cars sustained significant damage in the course of the theft.
10 This spate of offending came to an end when at around midnight on 11 August of last year you arrived with your offsiders in Lara. You were driving a stolen Suzuki Swift. You and your offsiders forced entry into a house at Curletts Road, hence Charge 10, burglary. That house was unoccupied in that the owners, as I understand it, were interstate. An observant neighbour alerted the police, the police arrived, and you were arrested following a pursuit on foot. You were interviewed and predominantly made no comment responses, as was your right.
11 As I have indicated you were on bail at the time, hence the three summary offences to which you have pleaded guilty. You have been in custody since your arrest, a period of some 302 days.
12 You were not on parole, though the chronology is quite telling in that you were released from your last sentence on 29 April 2022, having served the entirety of that sentence less the emergency management days I have been told about, and yet you were back in police custody by 21 July 2022, bailed on that date and then you continued to offend, committing the offences I must deal with.
13 The agreed summary sets out the chronology of the matter before the court.
14 The prosecution summary also sets out the offence maximums and I am not going to restate them all. It is worth noting through that home invasion and aggravated burglary carry a maximum term of 25 years' imprisonment.
15 Home invasion is what is described in the Sentencing Act as a Category 2 offence and, broadly speaking, a custodial disposition and not one in combination with a community corrections order is required unless one of the exceptions in s5(2H) of the Sentencing Act applies.
16 So much then for what is only a brief summary of your offending. I will sentence pursuant to the far more detailed agreed statement which was marked as Exhibit A on the plea.
17 In addition, there are photographs in the depositional material, including stills from some of the footage taken by your offsider. There is no need for that sort of material be marked as an exhibit. For instance, at p331 and 333 there is footage of the obvious efforts you were taking to avoid identification as you committed an illegal entry, wearing a hat, a hoodie and gloves. That was the aggravated burglary upon Ms Ivanecky's home. Photographs at p463 show the preparation being undertaken prior to departing to commit the home invasion the subject of Charge 4 and your kit is shown at that scene in the photograph at p459. You were ultimately arrested, and your gloves and a glass hammer are shown at pp775-6. There are also photographs of the damage to Ms Ivanecky's car and to the house and car of the victim of Charge 3, Mr Michaelowsky, and some of the other cars which were stolen.
18 Mention was made of co-offenders, or your ‘offsiders’, as I have described them. I had the prior history of some of them which was marked as Exhibit C. There was no submission made as to parity of sentence in this case. There were a whole range of obvious differences. Thomson, who was around your age, has not even been dealt with. Humphrey was only 15 and has not been dealt with. Szulc was only 17, but he was dealt with in the Children's' Court with very different considerations in play. That court cannot even pay any regard to the principle of general deterrence, which is a matter of real significance in my task. Mrcic was not even charged, as I understand it. Mr Barrera, when I asked him, told me that in the circumstances, he could not make any sensible parity submission and he undoubtedly was correct.
19 He conceded this was serious offending. It was.
20 Offending such as the aggravated burglary and home invasion are notorious for the sense of violation caused to the homeowner or occupant. I am required to take into account the impact of your crimes. The impact statement of Georgia Ivanecky, part of Exhibit B, makes it very clear this sense of violation is not dependent upon actually observing the events. She was asleep at the time, but she woke to a sense of deep violation.
Victim impact material
21 She has made an impact statement and she read it aloud the other day. When she discovered her home had been violated and her car stolen, she felt a sense of shock and helplessness. She believes that she is a resilient person, but she broke down. She did not know what to do. Her parents drove from Warrnambool to comfort and support her. She would not even stay in the house, her house, for the first week after your crime and even many months down the track she is still obviously deeply affected. She is hypervigilant. At one point she slept with a knife on the bedside table. As for her car, well, it was her first new car, one she was so excited to have purchased about a year before your crime. Photographs in the depositional material show the extent of damage to her vehicle. It has now spent pretty much half of its life in the mechanics'. She has been deeply inconvenienced as a result by not having a car and just the financial cost has been large for her. She describes the sense of violation she felt. She is at least thankful she did not wake up amidst the commission of the aggravated burglary.
22 Mr Michealowsky's impact statement describes the impact of what was a pretty extraordinary and brazen crime upon him. He describes anxiety and stress and fear and also of course the financial cost.
23 Mr Morgan's impact statement has to be treated with some caution, not because he would not have felt the matters he did feel upon learning that a burglary had taken place at his premises. Of course, there was shock and a sense of violation, but I am not dealing with you for that crime. I am dealing with you for theft of the car and what he says on that score is of course relevant to my task. Again, there has just been the inevitable significant inconvenience and cost arising in the setting.
24 I take into account then the admissible portions of Mr Morgan's victim impact statement.
25 I have only touched upon a few aspects of what is within those three impact statements. I take into account the more complete documents. These crimes take only seconds for you to commit, and you just skip off, but of course the impact, both emotional and/or financial, lasts a good deal longer. That much is very clear.
In mitigation
26 I turn now to the plea conducted on your behalf by Mr Barrera. He relied upon a written outline of submissions dated 18 May 2023. He filed two very detailed reports from a neuropsychologist, Ms Loretta Evans, and two older reports from Ms Lechner and Ms Moore.
27 Mr Barrera took me to your personal background in some detail. He dealt with some of your past offending and conceded the relevance of that past history. He made submissions about the relative gravity of the offending, the need to avoid double punishment in this case and the need to pay due regard to the principle of totality of sentence. He made submissions as to the relevant sentencing purposes as well as to your rehabilitative prospects.
28 In an excellent plea conducted on your behalf he relied chiefly upon the following matters in mitigation:
· your early guilty plea in the course of the global pandemic;
· your youth;
· your disadvantaged background;
· the application of a number of principles from the case of Verdins;[1]
· the impacts of COVID-19 upon your experience in custody.
[1]R v Verdins [2007] VSCA 102; 16 VR 269; 169 A Crim R 581 ('Verdins')
29 He argued that a combination-type sentence was open in this case. He had in his written submissions raised three of the exceptions set out in s5(2H) of the Sentencing Act. These were s5(2H)(c)(i), (c)(ii) and (e). For the first two of those, a burden rests upon an accused to establish the matter on the balance of probabilities. The third provision has no such burden cast at all. That is a residual category and it is a matter for the court as to whether on a review of the materials placed before the court, that that third exception is enlivened. He abandoned any reliance on s5(2H)(c)(ii), saying there was no evidentiary foundation for his original written submission.
30 I am going to come back to discuss those provisions in more detail, I am afraid to say, I have to, but I say now that in my judgment they attracted too much by way of attention in the course of this plea. It was almost as though finding an exception would then ‘win the day’ and permit me then to ignore virtually every principle of sentencing, which of course is not the position at all.
31 It should not be forgotten that a finding as to the existence of one of the exceptions does not determine the ultimate sentencing outcome. All it would do is, as a matter of law, remove the mandate, not necessarily avoid a prison outcome. A court would still have to pass an appropriate sentence (see the discussion in the leave application in the Court of Appeal of Parker[2] and the reference in that case to the case of Peers[3]).
Prosecution
[2]Parker v The King [2022] VSCA 207
[3]Peers v The Queen [2021] VSCA 264; 97 MVR 379
32 The prosecutor Mr Moore challenged the defence contention that any of the exceptions arose here. The prosecution took me to the extent of your past offending, the chronology of your offending and the recency of your being released from a 12-month sentence that was imposed in November 2021 in relation to similar offending. You had been released towards the end of April 2022, that date now is a date certain, it was 29 April, and the Crown argued that you had been arrested by 21 July, were bailed with tight conditions and just kept seriously offending. The prosecution submitted that the only available sentence here was a head sentence and a non-parole period and that anything less really would be a staggering outcome.
33 I am not bound by submissions made by either party as to the sentence required in this case. I must exercise my own sentencing discretion
Background
34 Before dealing with these various submissions made by the parties, I want to turn briefly to your personal background. There is much detail before me as to that background, including in the various reports placed before the court. I see no need to set out all of that detail, as I have no reason to doubt it at all. Nor is there any reason for me to doubt that the principles from the cases of Bugmy[4] and Hermann[5] and that line of authority are enlivened in this case. So I will act on that material and I provide really only the briefest of summaries at this point.
[4]Bugmy v The Queen [2013] HCA 37; 249 CLR 571 (‘Bugmy’)
[5]DPP v Herrmann [2021] VSCA 160 (“Hermann”)
35 You were born in August 2001; you are now 21 years of age. You were born and raised in the Geelong region. You have an older sister, an older half-sister and younger half-brother. Your early years were pretty chaotic and unstable. Your parents, certainly your father, had issues with drugs. There was some violence in the family home and your father was imprisoned from time to time, including for violence committed upon your mother. You had not seen him for many years at the time of Ms Lechner's report commissioned back in 2015. There is also reference in some of the materials to protective concerns and a range of notifications that had been made to child protection agencies. It is pretty obvious that your needs were not being met.
36 You have in this way then been exposed in your formative years to drug use and also to some level of domestic violence. There were some breaks from that, with one of your mother's ex-partners said to be a better role model for at least a handful of years. You have a mild intellectual disability and I have the various reports, some of them historical, which spell out the existence and the extent of that intellectual disability. After a diagnosis of intellectual disability was made in your primary schooling, you were then transferred to a special school where you stayed until part way through Year 8. I note from Ms Lechner's report that your mother attended the same special school. Ms Lechner also mentions a diagnosis of ADHD.
37 You have had some very brief periods of casual employment, generally in unskilled labouring jobs. When not in custody you have been on Centrelink benefits. There has been a lengthy and problematic drug use history, significant alcohol use and problematic cocaine and ecstasy use. Ms Evans believes you minimise your drug use. You have poor insight into the negative impact of drug and alcohol abuse. There is a depressing aspect of your not knowing any other life than the life that you are currently leading. You say, for instance, that prison feels like home. See Dr Evans' 2023 report p5, paragraph 14. It is troubling that you feel that way and of course one always hopes to avoid a person becoming institutionalised, especially a young person. You are naïve and lacking in empathy and you are still very immature and also impulsive. You have a poor capacity to reflect on your actions and to modify what are firmly entrenched offending behaviours. See paragraph 16 of that same report. You have an obviously high risk of reoffence.
38 You have a worrying criminal history. There is no point in my conducting in these reasons a full audit of that long history before the courts. It is sufficient to say that it is obviously relevant to my task. You have had very many appearances over the years. Many of them were in the Children's Court where every effort was taken to avoid detaining you. Every effort failed as you breached order after order. You were committing burglaries when you were about 13 or 14. Your first aggravated burglary was dealt with in 2017. Your first term of detention was in 2018 for, amongst other offences, your third aggravated burglary. That was followed by further periods of detention, then of course prison inevitably beckoned. So there are many serious offences, including some dealt with in the adult court. You received a head sentence and non-parole period in November 2021 for a variety of offences including your 10th aggravated burglary. That is not a misprint; 10 prior convictions for aggravated burglary.
39 Your counsel told me that they typically involved entry with intent to steal in the early hours where persons were present, and the motivation was to obtain the keys to the vehicle. There are also serious driving offences and other serious offences such as a robbery and attempted robbery. Also, by my reckoning, eight or so burglaries or attempted burglaries and 18 or so car thefts. So it seems at least in the materials before me that court orders are of no consequence to you at all. You just breach them, offending when you feel like it, driving whenever you feel like. You had only been out of custody for a few months and also had been bailed in July 2022 and yet you still offended despite residential conditions and the existence of a curfew and family support.
40 Now, you do not fall to be sentenced a second time for any these past matters. I want to make that very clear. You received those past sentences and you have served them. These matters do not aggravate the matters that I am dealing with, but I do have to make judgements about your prospects of rehabilitation and the extent of the need to deter you and to protect the community from you. I have no reason at all to be optimistic as your future prospects of rehabilitation. You present very sizable risks of serious reoffending.
Bugmy/Hermann
41 Let me turn then to the some of the various matters raised on your behalf, firstly to your disadvantaged background. I have already provided in advance my view as to the success of that submission. I have already set out some of the details of your personal and family background and it was not my charter to upset your mother in doing it, I make that very plain. It was plainly an unenviable background. You could not help being born with an intellectual disability; you could not help developing ADHD. These things are outside your control. Obviously enough, that intellectual disability has had a sizeable role to play in the trajectory of your life, it always would have, but your disadvantage, it seems to me, ran far deeper than having that cognitive deficit. How might you have travelled in a different family setting where there was support and good role models? Of course, we will never know. Yours was a pretty chaotic and dysfunctional upbringing with very few decent role models and, I infer, plenty of bad ones. You were exposed to drugs; you were exposed to violence. You were deprived of the opportunity of normal psychosocial and emotional development and these things all have a role to play in the faltering trajectory of your life and in the development of some of the worrying traits referred to in Ms Evans' report. See pp13 to 14 of the 2021 report. So I do take into account what I judge to be a significantly disadvantaged background pursuant to cases such as Bugmy and Herrmann.
42 Now, an offender's circumstances and their experience during their childhood and their formative years must be considered in the sentencing process and that is because it is well recognised that the effect of social disadvantage does not diminish with time. A background of significant disadvantage is likely to have profound and lasting consequences, as it no doubt has had in your case. There is no need to demonstrate a causal connection and nor does your counsel strive to establish one in this case. He commends the general approach referred to by the Court of Appeal in the case of Hermann. I accept the submissions made in that regard. I give full weight to your background in the way that that phrase is employed in these cases to which I have referred. There is undoubtedly, amongst other things, some reduction in your moral culpability. However, your background is not going to alter overnight. It remains with you, and it must be taken into account when I make judgements then as to your future prospects and also your risk of reoffence.
Guilty plea
43 I turn to some other matters that have been raised on your behalf. I turn to your guilty plea. You have taken responsibility for your crimes by pleading guilty and it was a plea made at the earliest opportunity. These matters are important.
44 As a result of your stance, the time and the cost and the effort of a committal hearing in the Magistrates' Court or a trial committed up in this court have been avoided. Witnesses have not been required to give evidence. Giving evidence can be a stressful experience. No doubt it would have been a stressful experience for Georgia Ivanecky to go into the witness box and to relive these events. Well, she and the other witnesses have been spared that experience by virtue of your pleading guilty.
45 You have facilitated the course of justice in these various ways, and you must be rewarded for doing so. Your guilty plea is worthy of extra weight for the many reasons set out in the Court of Appeal decision of Worboyes.[6] A large backlog of cases has arisen in the course of the global pandemic. Your case was never part of that backlog, it settled very swiftly. So I take these various matters into account in mitigation. You are undoubtably doing far better by way of sentence as a result of pleading guilty and I will in due course reveal to you the extent of the advantage that you have received.
Remorse
[6]Worboyes v The Queen [2021] VSCA 169
46 Your counsel advanced no direct submission as to the presence of remorse. Indeed, he made it clear when I asked that he did not rely upon remorse here; no doubt that was in recognition some of the significant impediments thrown up by Ms Evans' most recent report at paragraphs 14 and 33. There is very little remorse on display here. It would seem though that you have only very limited capacity to reflect on the plight of others. You did plead guilty at an early stage and a guilty plea is often enough indicative of at least some remorse, so I am prepared to at least treat your guilty plea as indicative of some limited remorse in this case.
Youth
47 I turn then to your relative youth. You were only 20 at the time of the offending and you are still only 21 now. You turn 22 in a couple of months. I accept that your relative youth is still of importance to my task. I take into account those principles as set out in cases such as Mills[7] and Azzopardi.[8]Young people, even when they are fully functioning, are not fully developed and they can make very poor decisions without necessarily considering the consequences. They are viewed generally as being more amenable to successful rehabilitation. Youthful offenders are also generally judged to be more vulnerable to the corruptive influences which exist in an adult prison.
[7]R v Mills (1998) 4 VR 235 ('Mills')
[8]Azzopardi v The Queen [2011] VSCA 372 ('Azzopardi')
48 The law generally treats youth as involving a reduction in culpability and as leading generally to some moderation of the punitive purposes of sentencing, including the need to deter and to punish. There is generally a stronger focus on rehabilitation and less weight devoted to punishment. This all makes sense because of course the successful rehabilitation of a youthful offender actually serves to protect the community. That is because the community needs no protection from a offender who is rehabilitated. The benchmark for sending a youthful offender to prison is understandably a high one. It is amply reached in this case, as is conceded. The weight to be given to youth will necessarily vary from case to case. Sometimes of course, there is no choice but to send even a youthful first offender to prison.
49 The more serious the crimes, the less weight can be given to youth and to rehabilitation and that is because more weight must be given to other purposes of sentencing, including community protection, deterrence and punishment. I do not lose sight of your youth in my task. It is still important to my task, but you are a very long way removed from being a youthful first offender. Unfortunately, you have a serious prior record of offending as well as a long track record of disobedience to various court orders. Yet again, you have seriously offended, and the weight given to youth must surrender some ground to the other purposes of sentencing. You present with a high risk of reoffence here.
Rehabilitation
50 This is as convenient a time as any to state my conclusions as to your future prospects of rehabilitation. Your counsel was not suggesting those prospects were strong. See paragraphs 23-29 of his outline. He was right to adopt a realistic approach. There is no point in making exaggerated or inflated submissions in this area and he did not. Your prospects are not strong. It is true you have spent some time in custody, but you have in the past and that seemingly has not deterred you. You have what is described by your own counsel as a significant and relevant criminal history. You do. You have failed time and time again to be deterred by terms of imprisonment or detention. You really have not taken advantage of court orders designed to lead you away from offending and from the courts.
51 You were on bail at the time of this offending that I am dealing with. You had only quite recently been released from a sentence imposed for similar-type offending. I hardly need one in the circumstances, but there is the expert opinion as to the risk of further offending and Ms Evans' view as to the significant and intensive treatment and support required and the pretty pessimistic outcome absent those steps. You are at least working in custody and doing some study and that is a good thing. You are still youthful enough, but unfortunately have little empathy and little sense of any need for change. Your disadvantaged background and your intellectual disability will not alter. It is of course concerning that you are growing so accustomed to life in prison and becoming in a way institutionalised, but there is only so much a court can do when you continue to commit serious crimes.
52 The notion of living with your sister and placing yourself away from negative peers is a little bit unrealistic as a true solution. You have lived with her before. In fact, you mention that in the interview at Questions 54 to 57. It would seem that you were living with her in breach of your bail in some periods after you had been bailed in July 2022, probably to distance yourself from your Geelong associates. I acknowledge that, but this did not stop you from heading down to Geelong and catching up with some of your partners in crime. At least there is still some family support, that much is obvious from what is said in the reports and from the presence of your family before me both the other day and again today. It is a positive that there is family support. Of course, it is, but you have had family support and that has not prevented you from seriously offending.
53 I am prepared to accept your counsel's submission that you have some prospects of rehabilitation. I can really put it no higher that than that. Unfortunately, you also present with a high risk of offending in a similar fashion in the future. I am satisfied of that beyond reasonable doubt. You will need to make a power of effort to remain drug and offence-free in the future and the signs presently are not that encouraging to me. Hopefully that might change. As I say, though, I am not going to write you off and say that you have no prospects of rehabilitation. That is not the position at all. You do have some prospects of rehabilitation.
Intellectual disability and Verdins
54 I move then to consider the submissions made as to the application of the principles from the case of Verdins and apologise in advance for descending into a level of detail, including detail as to legal concepts. But again, I am required to spell out not just to you but to others why I am doing what I am doing and the findings that I make in this area. As I said at the time of the plea, that decision of Verdins is a decision of our Court of Appeal dealing with the impact upon the sentencing process of various conditions existing either at the time of offending or sentence or both. That is no doubt a gross simplification of those principles, but it is sufficient for present purposes. Mr Barrera acting on your behalf relied upon the first, third, fourth and sixth the limbs of that case. The condition he relied upon was the intellectual disability, not the cluster B traits which were described in the reports.
55 The engagement of these principles is not dependent upon some precise diagnostic label. What matters is what the evidence shows about the nature, the extent and the effect of the impairment experienced and how it affected you, the offender, either at the time of the offence or how it is likely to impact upon that person's experience in prison.
56 There is much material before me including the two expert reports from Ms Evans and those historical reports from Ms Moore and Ms Lechner. I resist the temptation to work my way through all of this material in my reasons. My reasons are lengthy enough as is. I have had regard to all that material, and I have read it again since the plea. It is beyond dispute that you have what is described as a mild intellectual disability. Mr Barrera points to the 2015 assessment where you had a full-scale IQ of 48, but it seems to me that I really should act on the more recent assessments that have been conducted. I have two assessments only a couple of years apart from Ms Evans disclosing that you have a full-scale IQ of between 65 to 67 with a corresponding general abilities index of 61 and 64 respectively. Those higher numbers, the IQ of 67 and GAI of 64, pertain to that most recent assessment. I have mentioned all those numbers, but my task is not driven by considering the exact score or quotient on a test, no more than it is by considering whether there can be a diagnostic tag or label applied to someone.
57 Your intellectual disability has been a lifelong condition and it will not abate. It will always be with you and has always affected you. That is just the reality.
58 Though it is described as a mild intellectual disability, that adjective 'mild' has a very special meaning in this area, as was made clear in the case of Muldrock,[9] to which reference is made in the written submissions. If someone has a mild cold or mild ankle sprain, the word 'mild' would signify that the condition is transitory and minor, if not very minor. It is very different when the word 'mild' is applied by a neuropsychologist to describe an intellectual disability. There is nothing mild or minor about the impacts that Ms Evans describes. There is nothing transitory about them either. They are lifelong deficits which you carry with you, and you have no say in it.
[9]Muldrock v The Queen [2011] HCA 39 (5 October 2011); (2011) 244 CLR 120 ('Muldrock')
59 There are the significant enough impairments or deficits as disclosed in her very lengthy reports and the impact of them is spelt out. Some relate to your cognitive capacity, others to personality traits and the way that you view and interact with the world.
60 I am not able to find on the balance of probabilities that there is a strong causative link between your impairment and the offending in the sense that the condition (your impairment) somehow drove the offending, as is sometimes seen, for instance when a person in a psychotic state commits a crime owing to the nature of the delusion experienced. I had a case very recently of someone who lit fires in the belief that they were engaging in a spiritual experience and that they had the physical capacity to control the fire with their thought processes. Of course, they did not. Someone in that state would have at their disposal a mental impairment defence and their condition is directly causative of the offending. Their intent to commit the crime is entirely obscured by the condition and their culpability is therefore very much minimal. That is not what I am dealing with here at all. However, the engagement of these principles does not depend upon such a direct causative link, as long as there is some realistic connection or contribution.
61 The relevant question is whether the evidence establishes that the impairment contributed in a way that made you, the offender, 'less blameworthy as a result'. This is a discretionary assessment. It has no fixed guidelines, although the High Court in the case of Muldrock said that the question about the causal relationship is less likely to arise in sentencing an intellectually disabled offender because the lack of capacity to reason, as an ordinary person might, as to the wrongfulness of the conduct will, in most cases, substantially lessen the offender's moral culpability for the offence.
62 The effect though of an impairment on moral culpability is always a matter of degree. A court needs to consider the gravity of the offending and, with the assistance of any expert material, your conduct before, during, and after the offending in order to determine the extent of your impairment's contribution to the offending. That is the position even when considering an intellectual disability, as I am here.
63 As I have said, these deficits are always with you. They always have been, and it is not at all reasonable to think that you exercise the same level of judgement or insight or control as a person without that intellectual disability. There is plainly then a realistic connection such as to enliven a number of the principles from that case that I have discussed.
64 I do accept that the first, third and fourth principles from the case of Verdins can be given some weight in this case. The issue though, as always is the position, is what weight can be given to them? That will always depend on the nature and the extent and the effect of the condition as well as the nature of the crimes and the extent to which particular sentencing purposes must be taken into account.
65 I do believe that there can be some reduction in your moral culpability here. I cannot and do not accept the suggestion that your disability impedes your ability to distinguish between right and wrong, as seems to be suggested by Ms Evans. You have not run a mental impairment defence, nor could you have. It is obvious enough that you knew what you were doing was wrong and not just after the event. Now, that is not an impediment to the application of these principles, but my examination is actually meant to be rigorous. I note that you are wearing gloves and a disguise in two of the offences. You were arrested with a glass breaker. You were fleeing from the police in another. I do accept that you are impulsive, but this offending was actually planned to some extent. Your counsel accepted that. It was not truly opportunistic at all.
66 Ms Evans speaks of your being easily led or vulnerable to exploitation or manipulation but there is no evidence at all of that actually taking place here. None. You do not say that that occurred. Nor does anyone else. You were with others. You were the oldest, it would seem. Some were a good deal younger. You were the person driving the various cars in Charges 5 through to 9. 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. They are rational crimes, the sorts of crimes committed by people who have no intellectual disability at all.
67 Nonetheless, they were crimes committed by a person with the intellectual disability that you have, and you are for that reason, to an extent, less blameworthy, so there is certainly some reduction in your moral culpability. That arises from your intellectual disability, from your disadvantaged background and from your relative youth as well. As to the first limb of Verdins, dealing with moral culpability, I do not believe that 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. As I say, it is simply not reasonable to think that you were exercising optimum judgement. Plainly you were not and that is to some extent a product of your impairment and also those associated traits that are referred to.
68 There can be some sensible reduction or moderation in the weight given to general and specific deterrence, but they are not eliminated as purposes in this case. Your counsel was explicit in not relying at all upon the fifth limb and it is not a matter of any great weight in my task, given the view taken by Ms Evans as to the benefits of structure and predictability in prison and the fact that you seem to be travelling pretty well. See paragraphs 14 to 36 of the 2023 report. As to the sixth limb of this case, Mr Barrera relied upon paragraph 36 of Ms Evans' report. In that paragraph she sets out a range of possibilities that 'may' arise. Sometimes possibilities upon possibilities. As to the sixth limb there is simply no material before me enlivening that limb. There is no material satisfying me on the balance of probabilities that there is any serious risk of prison having a significant adverse effect upon your mental health. That is just not the tenor of paragraph 36 at all.
COVID-19
69 Mr Barrera made some very brief submissions as to the impact of COVID-19 upon your burden as a prisoner. He conceded that the restrictions have significantly reduced. Plainly that is so and the existence in the past of restrictions that pre‑date your reception into prison are not a matter of any importance to my task. They were in the past. So many of the matters spelt out in paragraph 14 of his submissions were historical and did not pertain to your time in custody since you went there in August of last year. They might have had an application at the time of your previous sentence. As you would know, personal visits, which had been suspended, resumed in March of last year and I repeat you have only been held since August of last year in relation to the matters I am dealing with. Nor do I believe that there is much reality to the notion set out in paragraph 17 that you are somehow the sort of person who will be in any way concerned with this loss of autonomy that exists in a prison setting and hence deprived of taking reasonable safety measures to avoid contracting the virus. There is a bit of a fiction in that submission in my judgement. You were after all a person roaming the streets with co-accused in breach of your curfew. It does not strike me that this submission is worthy of much consideration. I give it very little weight indeed.
70 I do recognise though that the pandemic is not over. There may yet be some occasional impacts, for instance occasional lockdowns. There might be the odd quarantine. It really is impossible to know if there will be any ongoing significant impact and, if there is, of course the authorities would be empowered to take it into account, as they no doubt did in relation to that previous sentence where I was told about all the emergency management days. I am not free to speculate about these matters.
71 I take into account the impact of the virus to this point in this very limited way. It is not a matter of any great weight in my task.
Category 2 offences and sectionand (e)s 5(2H)(c)(i), (c)(ii)
72 This is an appropriate time to state my conclusions on the issue of whether or not there is an exception made out under s5(2H) of the Sentencing Act. Again, forgive me for descending to this level of detail including descriptions of particular provisions within the Act, but I must do so. The parties must understand the findings that I have reached.
73 Before doing this though I repeat what I said a little bit earlier. Even establishing an exception or my finding one to exist would not automatically lead to a non-custodial outcome. It would simply remove the mandate.
74 The plea focused upon the sentencing ramifications thrown up by the existence of a single Category 2 offence, which was the home invasion. I am dealing with much more than that offence, including your 11th aggravated burglary and multiple car thefts. For the home invasion, that is Charge 4 and only for that one offence, there is a statutory prohibition upon a court imposing a combination-type sentence, unless one of the exceptions set out in s5(2H) applies. As I said earlier, the offender has the onus of establishing on the balance of probabilities the exception in either 5(2H)(c)(i) and (ii). There is no onus in relation to s5 (2H)(e). See the case of Fariah.[10]
[10]Fariah v The Queen [2021] VSCA 213
75 Three exceptions were originally relied upon, s5(2H)(c)(i) and (ii), as well as 5(2H)(e). Your counsel withdrew any reliance on s5(2H)(c)(ii), saying that there was no evidentiary foundation. He was right. There was no material before me indicating that your impaired mental functioning would result in you being subjected to substantially and materially greater than the ordinary burden or risks of imprisonment. That is simply not the state of the evidence before me, and your counsel's withdrawal of that argument was perfectly sound. He had not even advanced a limb 5 Verdins argument.
Section 5(2H)(c)(i)
76 I turn to section s 5(2H)(c)(i). Mr Barrera argued that he had established 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 and materially reduced your culpability. I am setting out really in that short sentence the actual requirements under the Act. Plainly the term 'impaired mental functioning' would include an intellectual disability such as the one you labour under.
77 I suspect that I have already provided a glimpse of my finding on this topic when dealing with the Verdins submissions. I am not going to restate everything that I said then. I am of course satisfied that you had the intellectual disability and hence that you had impaired mental functioning at the time of the commission of the offence. There is no doubt about that.
78 I am satisfied on the material that it did have some realistic connection to your offending such as to enliven the first limb of Verdins. I have already spoken of that at length. You were obviously not exercising optimum judgement and no doubt in part that was owing to your low level of functioning. I am not, however, satisfied on balance that there was a true causal link. Even if I were wrong as to that finding, I am not satisfied on balance that the impaired mental functioning substantially and materially reduced your culpability. I am then not satisfied that you have discharged your burden under s5(2H)(c)(i).
Section 5(2H)(e)
79 Additionally, Mr Barrera submitted that there was a second exception arising here, namely that there were substantial and compelling circumstances that are exceptional and rare which justify not imprisoning you. This is the exception set out in s5(2H)(e). There is no onus cast upon you to establish that.
80 The words used in the sub-section are not there by accident. I must also apply the other provisions of the Sentencing Act which give guidance as to the way those words are to be interpreted by a court. I am not free to ignore the case law that has interpreted the provision either. Every case will be determined on its own facts.
81 The bar is raised very high here by the language of the legislation, not just ‘substantial and compelling’, which was a very high bar indeed, as cases interpreting that older provision made clear. See Hudgson.[11]
[11]DPP v Hudgson [2016] VSCA 254
82 This is designed to be a stringent test. See Farmer.[12]
[12]Farmer v The Queen [2020] VSCA 140
83 The case of Buckley[13] sets out how high this test really is. At paragraph 44 of the decision of Buckley the Court of Appeal said the following:
'As we have said, the legislative intention could not be clearer, by adding the words that are "exceptional and rare", that Parliament intended to make the test almost impossible to satisfy.'[14]
[13]Beau Buckley v The Queen [2022] VSCA 138 (‘Buckley’)
[14] Ibid at [44]
84 Of course, such an observation is just that, an observation by the Court of Appeal as to the apparent general operation of the legislation without providing guidance to its meaning. I have to consider the instant case, not just an observation of general principle, and the provision itself does not speak of impossibility. It is not impossible to achieve, plainly not. If it was, it would not be there.
85 The case of Lombardo[15] that was discussed in the course of the plea sets out the relevant two-step enquiry in relation to this particular provision. I must identify whether there are substantial and compelling circumstances, meaning circumstances that are sufficiently weighty and powerful to justify not imposing a custodial sentence and, if so, I must then ask are the circumstances also exceptional and rare in the sense that they are wholly outside the 'run of the mill' factors typical of the relevant offending.
[15]Director of Public Prosecutions v Lombardo [2022] VSCA 204; 102 MVR 19
86 In determining whether there are substantial and compelling circumstances that are exceptional and rare, I am required 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. A court is told by the provisions 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. These are very significant and very deliberate alterations made to the way in which a judge would usually perform the sentencing task.
87 In support of this exception Mr Barrera pointed to your intellectual disability, your disadvantaged background, your youth and your reduced culpability and the moderation of various purposes, as well as the fact of your plea.
88 I do not believe that any of the matters raised on your behalf either individually or in combination rise to that level of being substantial and compelling circumstances. Nor are they exceptional and rare. Again, I make clear there was never any burden upon you in this respect. It is just that on an examination of the assembled materials placed before me and applying the principles from Lombardo to my task, I am not of the view that there are substantial and compelling circumstances that are exceptional and rare in this case.
89 So there are no exceptions in this case and, as such on the home invasion, I must pass an immediate term and not one in combination with a community corrections order. As I have said though, the concentration on this particular one charge and the exceptions had a bit of an air of unreality to it. I am dealing with a spate of offending by a man with highly relevant criminal history and a very poor track record of disobedience to court orders. I am not just dealing with a single home invasion.
90 I have had to spell out my conclusions in great detail owing to the focus on this area. But as I have said, success on this submission would not have affected the need for me to pay regard to the other purposes of sentencing and the principles ordinarily to be applied to that task. It would simply have removed a legislative prohibition. I could really have no confidence at all that you could or would comply with a community corrections order even if one could be structured. Nor could any such order possibly provide sufficient weight to community protection. However, that possibility does not even arise on the materials before me. I conclude by stating that irrespective of these particular provisions that I have dealt with there could really be only one sensible outcome here, being a head sentence and a non‑parole period. Any other sentencing outcome would be entirely inadequate.
The Offences
91 I have already summarised the offending and I am going to sentence according to the agreed statement of facts in this case. The home invasion and the aggravated burglary are inherently serious offences. The home invasion requires, as one of the elements, a person being in company with another, so that fact must not be doubly counted by me. Your being in company is not a matter of aggravation for that offence.
92 The aggravated burglary is quite different. Aggravated burglary can be committed by a lone person, but this one was not. You were in company.
93 The Court of Appeal decision of Meyers[16] sets out a number of considerations as to how a court might best assess the seriousness of an aggravated burglary. These are not exhaustive considerations, but they include things such as 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. Of course, you were on bail at the time of all of this offending and that is a matter of some aggravation.
[16]DPP v Meyers [2014] VSCA 314; 44 VR 486 at [48]
94 The time of night is relevant in each case. It was the early hours when one would expect occupants to be home. You wanted their cars after all. It was quite brazen in that conduct was filmed. No weapons were carried or utilised and as a matter of fact there was no confrontation. Plainly these entries were not designed as confrontational entries. You were entering as a trespasser, doing so with intent to steal, and you hoped to do so without being detected which, very luckily, is what happened. You would have had little if any idea as to who was home. So I do accept there are features of aggravation lacking. You did not, for instance, kick down the door or force entry in some extravagant fashion.
95 Nonetheless, they are dangerous offences. They can very easily run off the rails if detection does take place. The absence of planning referred to was a strange submission and one that was retreated from by a degree. There must have been some planning to select the target and to have the disguise, to have the gloves, to make the decision to stop at a particular place and enter a particular place. I am not suggesting for one moment that any of this offending was sophisticated. It was not. Home invasions and aggravated burglaries seldom are. The criminal damage the subject of Charge 3 was serious. The car thefts were each serious enough offences. The impact of the theft of Ms Ivanecky's car is spelt out in her impact statement. This was serious repeat offending whilst you were on bail.
96 You had no business even being out of your home given the curfew that was in place, yet you were, and you were seriously offending.
Purposes
97 I have to consider a number of purposes of sentencing, and I must pay regard to your prospects of rehabilitation. I have spoken of that already. I am prepared to find that you have some prospects of rehabilitation into the future. They are certainly not strong.
98 I am required to punish you for your crimes. I have got to do that justly and proportionately.
99 I must also denounce your conduct. You really must desist from this serious offending. You must treat other people's property and premises with respect. This is serious offending.
100 I must pay appropriate weight to specific deterrence. That is the need to deter you from offending in the future. I have already spoken of some moderation of that purpose owing to your intellectual disability, but there is still the need for this court to deter you from offending into the future.
101 That can and it must be achieved. You must be deterred.
102 Then there is general deterrence and, though sensibly moderated, it is by no means eliminated. It is still of some importance to my sentencing task. This court must send a clear message to others in the community who may be thinking of committing the sorts of crimes that you committed. Like-minded offenders must be deterred. You are though very plainly not the ideal vehicle for the full weight to be given to this purpose of sentencing.
103 Then there is community protection and that is of real importance here. It was not even mentioned in your counsel's written submissions, not once, though he mentioned all the mitigatory considerations arising from your intellectual disability. 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. It is static. The need for community protection is very clear indeed here. You are a repeat offender. The entries you engaged in here are serious and that is so despite there being no confrontational aspect at all. Time and time again you trespass into another person's home. You do so in the early hours of the morning. It is surely just a matter of time until you enter the wrong premises or premises where an occupant awakens. Then what happens, Mr Stewart? What happens then in the early hours of the morning when you are in another person's house as a trespasser? I am told that you are impulsive and that you react to immediate wants and needs and you do that without reasoned or considered thought.
104 You drive cars that are stolen. You had no business even being on the road at all in such a vehicle.
105 It is obvious that I must protect the community from you. It is no minor consideration at all in my task. In fact, it is a quite powerful consideration here.
106 I 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 no Sentencing Advisory Council snapshot for the crime of home invasion. There are, however, statistics kept on the Sentencing Advisory Council online portal. I have looked at the statistics including the Sentencing Snapshot No. 262 for aggravated burglary. I have looked at some instances of sentences for home invasions as disclosed in the Judicial College of Victoria Sentencing Manual at 6.14, also various sentences imposed for aggravated burglary. I note from the statistics at least that the most common prison sentences for home invasion and aggravated burglary fell in the range of three to less than four years' imprisonment. I have already told you that the maximum penalty is 25 years for each.
107 Sentencing is not a mathematical task. Statistics have inherent limitations. Other cases are not precedents and no amount of my looking at other cases or the statistics could ever provide the answer to my task. Now, many of the other cases dealing with home invasions involve confrontational entry, so an entry with an intent to assault and sometimes even with the carriage of weapons. So too there are many confrontational aggravated burglaries where there is an entry with an intent to assault and the carriage of weapons. Well, these are very different crimes to the crimes that you committed. You sought no confrontation at all. You entered intending to steal and no doubt in the hope of avoiding detection altogether and hence any confrontation.
Totality
108 I 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 to ensure that the total effect of my sentences is commensurate with your criminality here. Here though we have differing crimes targeting differing victims on differing days and no doubt with differing impacts. There must be a level of cumulation in the circumstances. There is a tight enough time frame obviously enough, it is a spate of offending over a handful of weeks. I will moderate the extent of cumulation here across the indictment to give weight to this important principle of totality and to adequately reflect your youth, your disadvantaged background and the existence of the intellectual disability. Your counsel made submissions as to double punishment and raised the overlap between the trespass, be it the home invasion or the aggravated burglary, and the theft, saying that ‘theft is part and parcel of burglary’. It is not, which is precisely the reason why post the decision of Newman & Turnbull[17] each charge is now laid on an indictment. The flaw in that argument can be seen by examining the impact upon Ms Ivanecky arising from the theft of her car. I do accept though that the two charges are a course of conduct in that you were entering premises intending to steal and then you did just that. But the theft in that case adds significantly to the impact felt by her. I will treat your being on bail as a matter of aggravation, and so will otherwise order under the provisions of s16(3C) to avoid complete cumulation and to avoid any double punishment.
[17]R v Newman & Turnbull [1997] 1 VR 146
109 I do not doubt the wisdom of the Court of Appeal in the passage cited by Mr Barrera from the case of Bergman,[18] where that court spoke of the need to try to break the cycle of offending in that case. I have here in your case the combination of disadvantaged background, intellectual disability and youth, and I have tried to spell out the weight that I give to these various matters. Of course, they are important. Of course, your rehabilitation is still important, despite your chequered history before the courts, and I actually hope that my quite pessimistic view as to your future prospects proves to be entirely wrong.
[18]R v Bergman [2021] VSCA 148 at [100]
110 Prison is a disposition of last resort. That is always the position. There is simply no other option here given the seriousness of the offending and your previous lack of response to court orders and continued serious offending. The submission as to the availability of a community corrections order in combination with a prison term was really not in my judgment a realistic one, even leaving aside the problematic issues thrown up by the existence of a single Category 2 offence.
111 Such a disposition as that would not pay adequate weight to the various purposes of sentencing here.
112 I must pass appropriate sentences. I must then order an appropriate level of cumulation. As I say, there will be sizable moderation of the cumulation here. This will all undoubtedly lead to a sentence of imprisonment of a dimension where I am required by law to fix a non-parole period. See s11 of the Sentencing Act.
113 What I will do, though, is I will provide for a lengthy enough gap between your head sentence and the non-parole period. I am not free to speculate as to whether you will actually be released on parole. I must proceed on the basis that you will serve every day of the head sentence which I will shortly pronounce. I am not allowed to take into account the possibility of your early release on parole, but I will provide for that possibility. It is the Adult Parole Board who will make that decision and it has nothing to do with me. It is my view though that a structured release would give you, and hence the community, the greatest hope. I will provide the Adult Parole Board with my reasons for sentence, as well as the various reports that have been filed on this plea, and that may assist them in their task.
Sentence
114 I will have you stand up now, Mr Stewart, if you would.
115 Look, as I pass these sentences, I have no doubt that both you and your loved ones will lose track of the particular numbers and the relationship between the individual sentences. Do not just add them all up, all right? Towards the end I am going to tell you what the total effective sentence is and then I am going to fix the non-parole period. So you really will not know the actual outcome until we get to the very end of this exercise, so just bear with me then.
Indictment
116 On Charge 1 and 2, so this is the aggravated burglary and theft of Ms Ivanecky's car, I believe it is both open and appropriate to impose an aggregate sentence for those two matters. You are convicted and sentenced on those two matters to a term of two years and four months' imprisonment. That will be the base sentence.
117 On Charge 3, which is the criminal damage to Mr Michaelowsky's car and house, you are convicted and sentenced to 12 months' imprisonment.
118 On Charges 4 and 5, that is the home invasion and theft relating to Mr Sheahan, again I believe an aggregate sentence is both open and appropriate given the unity of that conduct. You are convicted and sentenced to an aggregate of two years' imprisonment.
119 On Charge 6, theft of Mr Khalid's car, I convict and sentence you to 10 months' imprisonment.
120 On Charge 7, theft of Mr Saric's car, I convict and sentence you to 10 months' imprisonment.
121 On Charge 8, the theft of Mr Morgan's car, I convict and sentence you to 10 months' imprisonment.
122 On Charge 9, the theft of Mr Wilson's car, I convict and sentence you to 10 months' imprisonment.
123 On Charge 10, burglary, you are convicted and sentenced to 12 months' imprisonment.
Related summary offences
124 On the summary charge of committing an indictable offence on bail and the two breach of bail conditions offences, I believe an aggregate sentence is open and appropriate. On those three charges you are convicted and sentenced to an aggregate of one month's imprisonment. Now, that sentence will be served concurrently with all other sentences imposed today. I have treated being on bail as a matter of aggravation more generally and for that reason I do not wish to doubly punish you by cumulating, so I do otherwise direct under s16(3C).
Cumulation
125 The base sentence is the two years ans four months imposed on Charges 1 and 2.
126 I direct then that:
·six months of the aggregate sentence imposed on Charge 4 and 5 and
·two months of the sentences imposed on each of Charges 3, 6, 7, 8, 9 and 10
is to be served cumulatively upon the base sentence and upon each other.
127 I have to this extent otherwise directed concurrency under the provisions of s6(3C).
Total effective sentence
128 Now, as I have said, you will have great difficulty following these orders for cumulation. Those various orders that I have made, result in a total effective sentence of 46 months or 3 years and 10 months' imprisonment.
Non-parole period
129 I will fix a period of two years or 24 months during which you will not be eligible for release on parole.
Section 18 pre-sentence detention
130 You have already served 302 days of this sentence by way of the pre-sentence detention that you have served, and that declaration is entered into the records of the court.
Forfeiture s33
131 I have signed the forfeiture order that is sought in relation to the forfeiture of the phone. I order pursuant to the provisions of s33 of the Confiscations Act that the phone be forfeited to the relevant minister.
Licence orders
132 I also need to make some orders against your ability to drive, not that you have any ability. On Charges 2, 6, 7, 8 and 9, they are all charges of theft of a vehicle, 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 effective from today. Obviously enough that order will have no practical impact upon you.
Section 6AAA.
133 I have told you that I have taken into account your guilty plea, and I have, and I reduced your sentence accordingly. I told you that I would tell you about the dimensions of the reduction. If you had pleaded not guilty and been found guilty of these offences following a trial before a jury, I would have convicted and sentenced you to five and a half years' imprisonment. I would have fixed a non‑parole period of three years nine months in that setting and that statement is to be entered into the records of the court.
134 Grab a seat then for a moment, Mr Stewart. I will just see if there are any other matters I need to deal with or any matters that I have overlooked. Mr Moore, from your perspective?
135 MR MOORE: No, that completes the matter, Your Honour.
136 HIS HONOUR: Mr Barrera, any other matters?
137 MR BARRERA: No, Your Honour.
138 HIS HONOUR: Do each of you follow those sentences? I'm assuming at least the arithmetic is correct, there are no issues taken with the - - -
139 MR MOORE: No issues, Your Honour.
140 HIS HONOUR: I'm sorry to have taken so long. I'm sorry if your client's mother was upset in me reciting some of the personal factors, Mr Barrera, but I'll get these reasons back in due course. I'll revise them as soon as I get them back, which is what I do. They should be available I would think within a week or so. I revise them on the day that I get them typically. So you'll get those in due course.
141 You'll speak to your client though today in the cells and have some sort of discussion with him about what's taken place here today. I hope I've explained the outcome for him, but you'll go through and deal with what's taken place and his rights in relation to what's taken place.
142 MR BARRERA: Yes, Your Honour, I'll do so.
143 HIS HONOUR: Thanks very much. Thanks for your assistance, you were most helpful in the way you put the matter before me. Let me just see now. I think that does complete the matter then. So, Mr Stewart, Mr Barrera will come out and have a chat to you in the cells downstairs. He'll discuss your rights in relation to what I've done. So Mr Stewart can now be removed, please. Thank you.
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