Director of Public Prosecutions v Talker

[2018] VCC 227

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-00751

DIRECTOR OF PUBLIC PROSECUTIONS

v

AMIT TALKER

---

JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	6 March 2018
CASE MAY BE CITED AS:	DPP v Talker
MEDIUM NEUTRAL CITATION:	[2018] VCC 227

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Stefanovic	Office of Public Prosecutions
For the Accused	Mr J. McLoughlin	Victoria Legal Aid

HIS HONOUR:

1On 17 January 2017, the victim in this matter was in her home.  As she said in her victim impact statement, it was the beginning of a glorious day, and she had enjoyed time at the nearby beach.  And on return to her home, she was going about her business.

2You, Amit Talker, live next door to the victim.  You had, in the recent past, behaved in such a way that a magistrate granted an intervention order to protect the victim from you.  The victim had installed security cameras which, on
17 January 2017 first captured you looking over the fence that was between your home and the victim's. 

3It would seem, having ascertained that she was in her house, that you then went to your own kitchen area and got a large butcher's knife.  As you later said to the police, your intention in getting the knife was to stab the victim, to "finish her off."  You explained to the police that by that term, "finish her off", you meant kill her.  You came, with your knife, back to the fence, climbed up, and first waved it around menacingly, as you were at the fence.

4It seems the victim saw you and could see you were yelling.  Her closed double glazed doors and the noise from the television, meant she did not hear what you were yelling.  You then jumped the fence and came into her property, brandishing your knife.  The CCTV footage and the still photographs from that footage were chilling.  What you did was charge at the kitchen door, kicking it as hard as you could in an endeavour to break the glass, or break in to get at the victim with your knife.  The CCTV footage shows that you took a substantial run up and launched yourself at the door on three occasions.  On the last of which, you used so much force that you knocked yourself off your feet.

5The victim had run from the kitchen to call the police.  After your third attempt to break into your neighbour's house, you then retreated quickly back over the fence to your own house.  Police arrived shortly after and arrested you. 

6To fully appreciate the gravity of your offending, I need to outline parts of what you said to the police in your interview that day.  You, in your interview, admitted entering the victim's yard with your knife and repeatedly kicking her door in an attempt to get into her house and to her, in order to stab her.  When making these admissions, you said you were justified in what you did, because you believe the victim had thrown glass into a pot plant, in your premises.  What you said to the police is extracted in the summary of the prosecution opening, which was tendered at the plea.  It read:

"Well I've got a friend at my house where I live.  I took the dog out for a wee and then I found two pieces of glass on top of the pot plants, where no one's been digging.  So obviously, someone put them there purposely.  And it irritated me, and I took action."

7Further, in answer to whether you thought the victim would be scared, you said "Mate, I would be.  Would you?"  When asked by the police what you were going to do with the knife, you stated "Well, I was gonna take action for her trying to frame me.  She purposely put the stuff there, so I'd get angry.  So that's what happened.  I got angry and I was gonna deal with her."  You went on, when asked whether you felt justified in what you did.  You went on to state, "I feel like I am right.  Yeah, I - so I feel - I feel - I feel this shouldn't have ever happened.  But when people push you to the limit, then you know, sometimes you have to do something about it."  

8As already mentioned, you went on to say of your intention, "My intention was - yeah, to finish her.  And she was very lucky she didn't get stabbed today", you added.  We are lucky nothing further happened.  Could be dealing with a murder charge.  You made it clear that by "finishing her off", you meant kill her.  You went on, "Well, if she throws stuff over my fence, that's gonna happen to anybody who does that to my fence."  You finally indicated to the police that it "won't be the end of it", and there would be "serious repercussions", if you were locked up for it.

9In your interview, you repeated your justification in finding glass or rubbish, which prompted you to take the action you did.  On your plea, it was put that there had been difficulties with your neighbour, mainly relating to the barking dog.  I add to that, yesterday you gave evidence before me and reasserted the issue relating to finding glass, and your justification. 

10As I said at the outset, the victim had already taken action by obtaining an intervention order for your earlier conduct.  In that instance, you had thrown eggs at her house.  In addition to the intervention order being granted, you were charged with wilful damage and ultimately fined by the Magistrates' Court.  It should be noted that on the occasion that you egged the house, the police, when they searched you, found a - what is known as a credit card knife in your wallet, which is a matter of some concern.  You were also fined for having this weapon.

11In respect of your justifications for what you did, in my view, no reasonable person could have come to believe that a minor matter of rubbish or glass, that you had fixated on that morning, could possibly justify your violence and frightening response.  In my view, it is revealing of a dangerous aspect of your personality.  On any analysis, your offending was a serious example of the offence of attempted aggravated burglary.  You had an extremely violent intent.  You were armed with a very frightening weapon, capable of causing grave, if not fatal injuries.  You well knew that the victim was in her house, and you were determined to enter her house with the intent to assault her.

12Your efforts to break in were serious, and only thwarted by the strong glass in the victim's door.  It is only that aspect that keeps the crime as an attempted aggravated burglary.  All other elements to the offence were well and truly present.  Thus, as I have said, this is a serious example of an attempted aggravated burglary. 

13In this regard, I have considered those matters set out in the Director of Public Prosecution v Meyers [2014] VSCA 314, at paragraph 48. With the appropriate adjustments to accommodate the fact that this was an attempted aggravated burglary, not a completed aggravated burglary. Thus, I have taken into account your serious and very concerning intent, the violent mode of your attempted entry and the very frightening and dangerous weapon you had. I note that you were alone and not in company, and that your crime was during the daylight hours. But it was in circumstances where you were certain that the victim was at home. Indeed, it prompted you to take the steps that you took.

14The victim was, as anyone in our community is, entitled to feel safe and secure in her home.  In this case, the victim was further entitled to feel safe from you, as you were specifically prevented by a court order from going onto her property, approaching her, or acting in any way that involved assaulting her.  Your comprehensive breach of the recently imposed intervention order, adds to the gravity of your crime.  I will return to the issues of avoiding double punishment, as you also face and had pleaded guilty to an uplifted summary offence of breaching the intervention order.

15As discussed in Meyers at paragraph 49:

"The particular purpose which the offender has in mind at the point of entry, is a significant feature going to the gravity of the offence." 

16The discussion of the particular intent in Meyers is helpful in concluding that this particular attempted aggravated burglary is a grave one.  What the court said in Meyers at paragraph 50 was:

"In the present case, counsel for Mr Meyers conceded that by pleading guilty to the entry with intent to assault, he was admitting that he intended to restrain the victim physically, to present her from fleeing, 'so that he could have a conversation with her'.  This meant, as his counsel accepted, that Mr Meyers intended to do whatever was necessary to restrain her, that is to use such force as was required.  On that view, although he did not have in mind the particular acts of violence, which actually took place, what he did once inside, was the effectuation of his actual purpose, that is, he intended to pursue the victim, until he had her tied down.  On that ground alone, this was a very serious instance of aggravated burglary."

17Here, the intent, as I had made plain is far worse than some restraint or sort of physical restraint, in order to talk to someone.  This is an example of a more serious intent, that is, to use the knife to stab the victim or on worse analysis, to kill her.  The frightening scourge of aggravated burglary, or attempts at such, has seen the Court of Appeal's state and restate that this is a serious offence that must be met with sentences beyond what has been imposed in the recent past. 

18The Court of Appeal has made clear, that the fine categorisations of one sort of aggravated burglary, as distinct from another, is not to the point.  The Court of Appeal in Meyers makes this general point and it was repeated and extended, again, late last year in Hi v The Queen [2017] VSCA 315, at paragraphs 53 to 55.

19Applying the principles set out by the Court of Appeal in Hogarth, Meyers, Robinson and Hi, as to the assessment of the gravity and then the appropriate individualised sentencing principles, as described by Dalgliesh, I am firmly of the view that this is a very grave example of an attempted aggravated burglary.  Your counsel argued that the gravity of the crime was low, by reason of this offence appearing to have been spontaneous and not pre-planned.  I take that submission to perhaps more prominently attach to the assessment of your moral culpability, but I will deal with it in respect to both the gravity of the offence and your moral culpability.

20Firstly, while your criminal intent arose just that morning, and by reason of your oddly formed perception of some provoking act by the victim, or as you phrased it, "trying to frame you", you then decided to respond.  You looked over the fence, unarmed, and then went and got your weapon and waved it as you were at the fence, screaming.  When the victim did not respond, you jumped the fence to get to her, to assault her using the knife.  There were many moments when you could and should have stopped and recognised the serious crime you were embarking on. 

21That said, plainly things happened because in your anger, you lost perspective.  You did not try to hide your identity or escape elsewhere.  The spontaneity spoken of, really bespeaks of an outburst of anger and violence, which is, as I have said, a concerning aspect of your character.  The case of Suckling, referred to by your counsel, is an exceptional if not unique set of circumstances, and there is no real comparison of the spontaneity in that case and what was said to be evident here in this case, as to spontaneity.

22As to your moral culpability, if I have not already made it clear, I consider it to be very high.  Nothing was put forward in terms of an impaired mental functioning, that would diminish your moral culpability.  The impact on the victim has been considerable.  I have read and reread her victim impact statement.  She describes the beginning of the day in brighter terms and then what followed.  She said:

"Since the terrible incident with you, I no longer feel safe in my home.  If I hear any noise at night, I immediately wake up and walked around to check if any of the garden sensor lights have come on.  I used to enjoy doing a bit of gardening.  Now I never feel safe in the garden, and continuously check the boundary fence to see if anyone is climbing over to attack me."

23She speaks about taking great precautions when she moves out of her car, and she has never taken such precautions before.  She says:

"Following the knife incident, I've also become depressed and began to have a very negative view of life.  I was frequently sad and lost a lot of confidence."

24She says that she felt that she was a robust or tough person, but now these things are absent.  She goes on, that these incidents subjected her to disturbing violence and she considers that the whole thing was unprovoked and totally unexpected.  She says that it is worse, because the intervention order was in place at the time.

25As to your personal circumstances, you are now 28 years old.  You were born in Israel, where your father was an aircraft engineer and your mother employed by a bank.  You have a younger brother, who along with you and your parents, migrated to Australia in 1996.  Your sister was born here in Australia.  You attended school in the local area until 2007.  You then commenced a brick laying course at Holmesglen TAFE.

26You commenced using cannabis in 2004.  It seems this continued and you were not motivated to work.  You remained in the family home.  This caused significant problems within the house, as explained by your father, who gave evidence on your plea.  You were excluded from the family home and essentially moved into the streets, and into youth refuge facilities.  Intervention orders were obtained, because of your outbursts of violence in the house towards your younger brother and it seems, your mother.  These resulted, as evidence was given, because things were smashed in the house and because of your anger towards your parents.

27In early 2008, you were permitted to return home.  On 21 July 2008, the police attended, as you had caused damage to your parents' home and you were charged with breaching an intervention order.  In September of 2008, initially you failed to appear but ultimately, you were placed on a 12 month adjourned bond. 

28It was said that some of the violence involved an assault upon your younger brother, who as it seemed, from the evidence of your father, said that he had not given up - or given up in time, the use of a computer, to handover to you.  There were other attendances in the Magistrates' Court in 2009, the theft of a motor vehicle and shop stealing.  Ultimately, you returned home in 2010.  I should add that I have read the letter from your brother, who has put into context, as far as he is concerned, the incidents between you and he as you grew up.

29At some time in 2014, the victim moved into a new house constructed next door.  It was said, in evidence from your father that there were problems with the dog barking from the outset.  As mentioned on 26 October 2016, you threw eggs at the victim's house, damaging windows.  The intervention order was granted, finally, on 2 November 2016.  Thus, your offending was just over two months from the final intervention order and less than three months from the time that you had thrown eggs at the victim's house and had the intervention order granted to the victim.  Following your arrest for the attempted aggravated burglary, you were remanded in custody for three days, before being granted bail with CISP engagement and conditions. 

30The counsel relied on the following documents and reports:  The CISP progress reports for 1 February 2017, 28 February, 31 March and 21 April 2017; certificate of completion of the Salvation Army anger management course dated 3 May 2017; a report from the SECADA, which is the South Eastern Alcohol and Drug organisation, that is, a drug and alcohol rehabilitation service.  It was dated 19 September 2017.  There was a letter from the Salvation Army, re your anger management course dated 23 November 2017.  The report from your then-treating psychologist, Dr Phillip Samuel, and the letter of support from your parents dated 1 October 2017.

31Following this matter being listed for plea in August 2017, the matter was adjourned for a psychological report.  That report, from Dr Adam Deacon, is dated 13 October 2017.  Initial plea simply involved arraignment, it was not part-heard.  Some of the matters relied on by your counsel in the plea as mitigatory, were significant steps that you have taken towards rehabilitation since you were released on bail, and your ongoing family support. 

32On your initial assessment for the CISP bail program, you disclosed a long standing history of cannabis use.  You also reported past methylamphetamine use but did not report any current use.  You acknowledged that it would be difficult to maintain employment if you continue to use drugs, and you wish to remain abstinent so as "not to upset your parents."  You spoke of your belief that you were able to maintain abstinence from cannabis without additional support.  However you conceded that you were willing to explore options. 

33You indicated initially that you did not consider that there were any mental health problems, but following the initial assessment, you were referred to a psychologist, Dr Phillip Samuel, as counselling was requested by the court granting bail.  Initially, you advised that you were working on anger management strategies with the psychologist but you did not believe you had difficulties regulating your emotions and behaviour.  But you conceded that being provided with information on anger management courses would be helpful, though you did not feel that you required support in this area.

34You also indicated that you were keen to return to full time employment and this was seen by you as your primary treatment in rehabilitation goal.  First CISP report indicated that you on numerous occasions, questioned why you could not return to your family home.  You reported that you remained abstinent from drugs and were to attend at SECADA for counselling.  It was noted that the psychologist who was seeing you reported that you presented with "black and white thinking" and the psychologist suggest you engage with a psychiatrist for assessment. 

35Psychiatric assessment was arranged on 24 February 2017 with a very experienced forensic psychiatrist, Dr Andrew Carroll.  It was noted by the CISP case manager in respect to the intervention order and your accommodation, that you had a concerning lack of insight, which in her view, required further case management to focus you on this treatment point.  The same lack of insight seemed to be evident in your initial discussions with Dr Samuel and the CISP case manager with respect to anger management.

36The next CISP progress report refers to matters relating to accommodation and awaiting drug counselling.  But by this point, you had commenced anger management with the Salvation Army in Dandenong on advice of your psychologist, Dr Samuel.  You were attending all required case management appointments and referrals.  The final CISP report is of 21 April 2017.  This report noted that you had attended at a psychiatric assessment on 24 February 2017 with Dr Andrew Carroll.  There is no further reference to this as to any outcome of that assessment. 

37You continued with counsellor Dr Samuel and an anger management course at the Salvation Army, and you had been accepted into a drug counselling program.  In respect of anger management, it is noted the Salvation Army reported you attended all six sessions and successfully completed all modules.  You engaged fully in the program. 

38Your psychologist report dated 23 May 2017 was brief.  It indicated that you showed progress by attending anger management courses, and alcohol and drug counselling.  You attended it seems, five session with Mr Samuel.  He reported that you found counselling hard but showed some insight in understanding there is a cycle of anger.  He said of you, "He appears to have learnt that anger gets him into trouble."  He indicated that he did not believe that he could assist you further.

39In respect of drug counselling, you attended four standard alcohol and drug counselling sessions, from the end of April to the end of July 2017.  You reported an abstinence from cannabis and you indicated you felt that you had learnt from your mistakes and you wish to take a different direction in life, looking for work.  You said you hope to move back into the family home around November 2017 for extra support. 

40It was indicated that you had very good understanding and awareness of your past cannabis use and its association with crime.  It was indicated that you did not need any further counselling.

41Your parents provided a letter of support.  They indicated you understood that you did not handle the situation well and they believe that you have taken responsibility for your actions, which is based upon your psychological counselling, drug and alcohol counselling and anger management sessions.  The letter went on to indicate that you are hardworking, which is in some way contrast to your father's evidence before me, where he was concerned that your lack of motivation for work, which had led to family difficulties in the past.

42Other aspects of the letter describe you as a caring, family oriented person, which no doubt is the case the majority of the time, but in contrast to some of the other evidence and accounts of your behaviour over the years.  There is no doubt that your family provide you with very considerable support and has continued to do so, financially and otherwise.  The attitude you have expressed and indeed the evidence of your father that all would be well if you simply return to the family home, displayed in my view a concerning naivety, if not lack of insight.  What is also notable is in your father's evidence, was its indication that subsequent to you not being at the family home, there have no difficulties with the neighbour, though your father attributed this to the neighbour now taking the dogs for a walk.

43As noted above, Mr Talker you were interviewed by Dr Adam Deacon, a consultant psychiatrist on 18 September 2017.  He had the CISP report and the charge sheets, the indictment, the criminal history and your record of interview.  It would appear he did not have the CCTV footage of the attempted aggravated burglary.  His report under headings of "Relevant personal history, forensic history, medical history, drug and alcohol history and psychiatric history" was not of much moment.  He did indicate under "Psychiatric history", that you vaguely mentioned that you were prone to be being unmotivated when smoking cannabis and more prone to being irritated.  Nothing more was said of that. 

44Your account of the offence to Dr Deacon emphasised the provocative conduct of your neighbour, and added that you were simply going across to the neighbour to talk to her, and had taken a knife to frighten her.  You described her as a coward to Dr Deacon, which is a matter of ongoing concern.  You said you were angry at the time and accepted your anger was exaggerated.  You said that you were "stoned" with cannabis at the time and that you had "made a mistake", but you "couldn't take it anymore."  You told Dr Deacon that you had "not been similarly angry in the past."  It did not appear that Dr Deacon had any information about your conduct which led to the earlier intervention order, or the breach of that intervention order in 2007 and eight.

45It is noted that Dr Deacon concluded:  "Mr Talker was adamant that either the neighbour or her allies deliberately framed him by breaking glass and placing it in his property to set him up, so he could be watched, throwing the eggs." 
Dr Deacon's opinion and analysis there, was initially a repetition of the various factual circumstances as to your history and your conduct on 17 January 2017.  He then opined:

"Mr Talker's conduct is not linked to any underlying mental illness.  His opinion of the neighbour and possibly affiliates, deliberately placed the glass on his property to evoke an adverse response is noteworthy and difficulty to evaluate.  He might be mightily paranoid in personality type, but without determining the source of the broken glass, it is very difficult to offer firm opinion regarding his underlying personality type.  At minimum, his conduct was unreasonable, excessive and alarming."

46He concluded by indicating that you recognised that your conduct was unnecessary but "he also emphasised his neighbour's purported contribution to inciting his behaviour."

47As noted, your counsel initially indicated the report did not add much to the case or assist generally in my sentencing task.  But following the plea and upon closer reading in the CISP reports and discovering that you had seen Dr Andrew Carroll on 24 February 2017, I had my associate write to the parties to enquire whether Dr Carroll provided a report to the CISP case manager or the Magistrates' Court, or if any report was available.  Ultimately, your report dated 2 March 2017 from Dr Carroll to the CISP manager at the Magistrates' Court was provided.

48Your plea was further adjourned as your counsel sought time to have you reassessed by Dr Deacon or at least a further report from Dr Deacon.  I have read the report of Dr Carroll and it does not add much to the understanding of your personality type.  But Dr Deacon gave evidence before me yesterday on 5 March 2018.  You had been remanded in custody.  The report of Dr Carroll, I should say, indicates in his opinion, that you did not have any mental health problems.  It was clear enough from his report that your account to Dr Carroll emphasised what you saw as the provoking conduct of your neighbour. 

49As to the evidence of Dr Deacon, I should indicate that your lawyers did arrange for Dr Deacon to see the CCTV footage and be provided with Dr Carroll's report and other things that had been tendered on the plea.  Of note though,
Dr Deacon did not re-examine you while you were in custody.  Dr Deacon was called as I have said, to give evidence.  In the course of that, you also gave evidence and Dr Deacon made further comment in evidence on having heard your evidence. 

50Dr Deacon maintained that there was no diagnosis of a personality disorder.  But that diagnosis could not be made because there was, as far as he knew, there was not persistent antisocial behaviour to allow for such a diagnosis by applying the DSM-5 criteria.  Nonetheless Dr Deacon considered that you had a number of traits or personality characteristics that were seen in personality disorders.  

51Summarising his evidence and using my terms, he saw you as having a sense of entitlement, an inability to regulate your emotions and anger, an unreasonable and an entrenched sense of provocation from the small slights that you perceived, and a disproportionate reaction to that.  He concluded that you were immature and had not developed appropriate adult approaches to social interactions. 

52Having heard you give evidence, he added to his concerns that you had a lack of insight into the seriousness of the impact on the victim of your crimes and that your minimisation and conglomeration of separate crimes against the victim over some months, and your expressions of your remorse being more directed at your own circumstances rather than arising from empathetic contrition.  All these matters were matters that gave concern to Dr Deacon.  He emphasised the need for you to remain drug free and more particularly, to engage in longer and more targeted and sophisticated counselling. 

53In your evidence, you expressed apologetic sentiments and attributed your conduct to your emotional overreaction to provocation from the victim.  You said your answers to the police were emotionally driven.  You assessed your conduct as being out of character.  There were, in my mind, concerning aspects of your evidence.  While your expression of remorse and apology were present, I, like Dr Deacon, am not convinced that yours is the sort of genuine remorse that gives confidence that your prospects of reform have a solid foundation.  I consider that you minimise and rationalise your conduct in ways that give me concern, that your insight is limited, again, a matter giving me pause as to your prospects of genuine reform.

54I am not required to come to some view as to any diagnostic label in respect of your mental health.  But I am of the view that you have a personality or characteristics, that give rise to risks of reoffending.  Your violent behaviour in the past and especially on this day, and your responses immediately and over time, up until yesterday's evidence, are the bases for my concerns, along with the expert opinion expressed by Dr Deacon. 

55But on the other side of the equation, there is your ongoing and complete support from your family, who wrote again, as to their wishes and their sense of you as their son.  I have read the further letters from your parents and your brother.  I note also that your friend has a job available for you, upon your release.  These matters are important.  

56Your counsel urge that I impose a sentence for your immediate release and placed on a potentially lengthy community corrections order.  The prosecution contended a sentence of imprisonment, together with a community corrections order, was within range.  I am mindful of the important principles articulated by the Court of Appeal in the case of Boulton.  Your rehabilitation is important and you plainly need help in the form of sophisticated lengthy counselling treatment.  Those sorts of rehabilitative programs, if added to other aspects of a community corrections order, would, in combination, punish and rehabilitate you simultaneously. 

57The key question is whether the limits of the combined imprisonment and community corrections order are such that this type of sentence meets all the sentencing purposes resulting in a just appropriate sentence.  In this regard, I should make it clear to you that your ongoing family support is important and gives me some confidence that you can ultimately rehabilitate.  Your efforts involving drug counselling and anger management, are not overlooked.  They are positive, early signs. 

58However your rehabilitation is a matter that must be kept in balance with the other weighty sentencing purposes.  Those purposes are denunciation of your serious offending.  As I have endeavoured to make clear, the victim was entitled to feel safe in her house, and especially because she has sought and had gained a protection of a court-ordered restraint on your behaviour. 

59The impact of what you did, in respect of her, and the impact on the community, in my view, is such that there needs to be serious consideration of denunciation in a practical way.  In my view, there is hardening attitudes in respect to this conduct, that is, where someone attempts to invade someone's home to inflict serious violence.  However, it must be kept in balance with the other sentencing concerns that I have articulated. 

60The court must also endeavour to have the message of deterrence expressed clearly.  Others must appreciate that if you seek to break into a person's house with violent intent, then ordinarily imprisonment and lengthy imprisonment awaits.  You too, Mr Talker, need to be deterred and come to a genuine appreciation that serious consequences will follow from any future misconduct.  The community must be protected as far as the court is able by terms of imprisonment that meet the gravity of your crime.  As noted a number of times, your rehabilitation is not overlooked.

61Grave as it always is, to send someone to prison, there is, in my view, no other option but to continue your term of imprisonment.  I say it as mindful of the stature required on me to ensure that I do not sentence anyone to prison unless the sentencing purposes cannot be met by a sentence that does not involve incarceration.  The community corrections assessment concluded that you were suitable.  As I have said, your counsel sought a community corrections order and I have given that option long and anxious thought.  And in the end, in my view, a prison term and a community corrections order but both lengthy, or lengthy as is allowed, would in my view meet all the sentencing purposes as I have expressed then.  Doing the best I can in respect to this matter, can you please stand, Mr Talker?

62For committing the crime of attempted aggravated burglary and for the breach of the intervention order, being cautious as to not double punish you, I impose an aggregate term of 12 months' imprisonment, together with a three year community corrections order with conditions that I will outline shortly.  Had you pleaded not guilty to these matters and been found guilty of them, I would have imposed a term of 3 years and six months with a minimum term of 20 months. 

63You have already served 100 days in custody.  That figure of days having been reckoned, I will ensure that a declaration that these 100 days are part of the sentence that I have just imposed, is entered in the records of the court, so that the prison authorities are left in no doubt that you have already served 100 days of the term of imprisonment that I have just imposed. 

64There are other orders that need to be considered.  The first of those is that you provide a forensic sample.  I considered that application and intend to grant it.  The forensic sample will the scraping of your mouth so that your DNA can be extracted.  My consideration of this matter and my granting of the application is on the basis of the seriousness of the offending, because of your prior history and because of the interest of justice in my view, lead to the order that I have just made.

65In respect of the community corrections order, it will be a lengthy one for three years.  It will involve 150 hours of community work, it will involve treatment and rehabilitation for drug use.  It will involve treatment and rehabilitation for mental health.  It will involve treatment and rehabilitation in the form of programs, in order to reduce your reoffending.  It will involve supervision for the length of the time and it will involve judicial monitoring.  All these matters will be set out in a document and will be produced to you shortly.  Are there any other - the compensation order is sought for the damage caused to the door and that compensation order will be granted.  Or have you got something to say about it?

66MR McLOUGHLIN:  I have no recollection of seeing this, Your Honour ‑ ‑ ‑

67HIS HONOUR:  All right, let's pause on that then.

68MR McLOUGHLIN:  If I could just have an opportunity to get some instructions about that.

69HIS HONOUR:  Of course.

70MR McLOUGHLIN:  It could be that I have seen it and it's escaped me.  It's not amongst the papers I've got and I don't have an electronic record.

71HIS HONOUR:  Of course.  There's no problem about that Mister - there are other things that you've concentrated on and I'm grateful in that regard.  But if you need time, just take time and if you want to return back to this at a later point, then feel free to do so.

72MR McLOUGHLIN:  Yes, thank you, Your Honour.

73HIS HONOUR:  In respect of the compensation order, we'll defer that matter.  Maybe we can bring it back up at the first return of the - no, there's - it needs to be dealt with.  If you could ‑ ‑ ‑ 

74MR McLOUGHLIN:  Yes.

75HIS HONOUR:  Do you wish to obtain some instructions right now?

76MR McLOUGHLIN:  Well, I'd need to have a look at the document and ‑ ‑ ‑ 

77HIS HONOUR:  We'll produce the other documents.  Take a seat, Mr Talker. 

78MR McLOUGHLIN:  And perhaps while the CCO document's being ‑ ‑ ‑ 

79HIS HONOUR:  Yes, yes, that's what I mean.

80MR McLOUGHLIN:  I can - if my learned friend's got a copy that I can - that's conceded to, Your Honour.

81HIS HONOUR:  Thank you.  The application made in respect of compensation of damage to the door will be granted.  All right, we'll produce the document relating to - the first judicial monitoring will be some time off, Mr McLoughlin, obviously enough.  But we'll fix as best I can, a date in 2019.

82OFFENDER:  Mr McLoughlin?

83HIS HONOUR:  Perhaps if you speak to him.

84MR McLOUGHLIN:  Yes, excuse me.  There's some confusion about whether there's a compensation order already been made, but if there's a problem, we'll come back to Your Honour.  We'll sort it out between the parties.

85HIS HONOUR:  Thank you very much.  Is the documents relating to the 464 with me?  Thank you.  Mr Talker, in respect of the application that I've granted relating to a forensic sample, the scraping from the mouth, you have to understand that at the time the authorities come to request that sample from you, if you do not consent to it occurring, then those that come to take it are authorised to use reasonable force to ensure that the forensic procedure is conducted.  The way through it, of course, is to cooperate. 

86Mr Talker, the community corrections order that I have imposed, it will commence upon your release from prison and will last, thereafter for three years.  The mandatory terms that apply to everyone who's the subject of a community corrections order are:  You must not commit another offence which could imprison you during the time the order's in force.  Well that's straightforward, you just must not commit further offences. 

87You must comply with any obligations or requirements as prescribed by the regulations under the sentencing regulations.  The best as I can explain it, they'll need to know who you are, take a photograph of you, you just cooperate with them.  You must report to and receive visits from the Office of Correction.  You must report to the community corrections centre that I'm told, the one for you is the Carlton Community Corrections Centre at 444 Swanston Street, Carlton, within two clear working days of the order starting.  So upon your release, go straight there that day or the next. 

88You must not leave Victoria without getting permission to do so from the Office of Corrections.  You must let the Office of Corrections know within two clear workings days of a change of your address or your job and you must obey all lawful instructions and directions from the Office of Corrections. 

89In addition, those are the conditions that apply to everyone.  What applies to you is you must do 150 hours of unpaid community work over the three years.  You must be under supervision of a community corrections officer for the three years.  You must undergo treatment and assessment for drug abuse or dependency.  That will include testing as well.  You must undergo any mental health assessments and treatment as directed by the regional manager.  And you must participate in programs or courses that address factors relating to your offending, such as further and lengthier and more sophisticated, hopefully, anger management programs.  But that's a matter for the Office of Corrections.

90You must also attend for judicial monitoring.  Let me make it clear to you that I'm going to keep you under my gaze.  You heard my concerns and you must reappear before me on 1 February 2019.  That will be after your release and settled.  We'll see how you're going.  It may be that I need to see you again but don't doubt that if there is any failure in respect to this community corrections order, then the high likelihood is you'll be returned to prison.  Do you follow?

91OFFENDER:  Yes, I do.

92HIS HONOUR:  Thank you.  So 1 February 2019 at 9.30.  If you consent to that, sign it.  I've signed that as well.  Mr Talker, I've signed it and copies will be made available.  Is anything further required, Mr Stefanovic?

93MR STEFANOVIC:  No, Your Honour.

94HIS HONOUR:  Mr McLoughlin?

95MR McLOUGHLIN:  No, Your Honour.

96HIS HONOUR:  Thank you very much for your assistance in this case.  Thank you.  Mr Talker can be removed.

‑ ‑ ‑