Director of Public Prosecutions v Tierney
[2020] VCC 1175
•3 August 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-02487
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRENDAN LEIGH TIERNEY |
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JUDGE: | HIS HONOUR JUDGE D SEXTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 May 2020, 22 July 2020 | |
DATE OF SENTENCE: | 3 August 2020 | |
CASE MAY BE CITED AS: | DPP v Tierney | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1175 | |
REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited: Crimes Act 1958 (Vic); Firearms Act 1996 (Vic); Dangerous Goods Act 1985; Mental Health Act 1986 (Vic);
Cases Cited:R v Verdins (2007) 16 VR 269; Djemal v The Queen [2020] VSCA 25, DPP v Fleiner [2010] VSCA 143
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D. Cordy | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr N. Rolfe | Rolfe Criminal Law |
HIS HONOUR:
Introduction
1 Brendan Leigh Tierney, you have pleaded guilty to an Indictment containing six charges. Criminal damage contrary to s197(1) of the Crimes Act 1958 carries a maximum penalty of 10 years’ imprisonment. Aggravated burglary contrary to s77 of the Crimes Act 1958, carries a maximum penalty of 25 years’ imprisonment. Theft contrary to s74(1) of the Crimes Act 1958 carries a maximum penalty of 10 years’ imprisonment. Possession of a traffickable quantity of firearms contrary to s7C of the Firearms Act 1996 carries a maximum penalty of 10 years’ imprisonment. The two charges of intimidation of a law enforcement officer contrary to s31D of the Crimes Act 1958 each carry a maximum penalty of 10 years’ imprisonment.
2 In addition, you have pleaded guilty to two summary offences, possession of ammunition without a licence, contrary to s124(1) of the Firearms Act 1996, which carries a maximum penalty of 40 penalty units, and manufacture or store an unauthorised explosive without approval contrary to s54(5) of the Dangerous Goods Act 1985, which carries a maximum penalty of 100 penalty units.
3 You have also admitted your criminal history.
Outline of offending
4 The circumstances of your offending were outlined in the Summary of Prosecution Opening for Plea dated 8 April 2020 (Exhibit A), the contents of which were accepted by you. That outline therefore contained the factual basis upon which you will now be sentenced.
5
By way of brief summary, at about 12.30pm on 6 July 2019, Chantel Whalan went to pick up her son, Detlan, from the home of her friend, Ms Jo Rettalick-Ford, where Detlan had been visiting. About an hour or so later, after
Ms Whalan had picked up her son and returned home without incident,
Ms Whalan received several missed calls and two abusive voice messages from Ms Rettalick-Ford. Those messages were abusive and menacing, indicating that if Ms Whalan did not pick up the phone, Ms Rettalick-Ford would come looking for her as soon as you, Mr Tierney, arrived to pick
Ms Rettalick-Ford up.
6 At about 4.00pm that day, Ms Rettalick-Ford arrived at Ms Whalan’s house. She knocked at the front door and asked to come in. As Ms Whalan opened the door, Ms Rettalick-Ford pushed past and entered the house, asking “what, “What have you done to Kimberly Taylor?”
7 A few minutes after Ms Rettalick-Ford had entered the house, Ms Whalan observed you, Mr Tierney, through the CCTV system, in what she described as a "devil mask", using an axe to smash the CCTV cameras outside her house. This conduct forms the basis of Charge 1 on the Indictment, criminal damage.
8
Whilst this was occurring, Ms Rettalick-Ford told Ms Whalan that she needed to let you into the property, as you are Kimberly Taylor’s father, and
Ms Whalan’s son, Shannon, had done something to Kimberly.
9 You entered the storage or smoking room; a permanent structure that had been added to the house which enclosed the front entrance of Ms Whalan’s home and had a lockable security door. You yelled at Ms Whalan to let you in. You hit the security door with the axe. Whilst you were not successful in entering the front door of the house you stole various items from the smoking room area – eight Vodka Cruiser premix drinks, three motorcycle helmets, three car stereos and a remote control helicopter. Your conduct in entering this part of Ms Whalan’s home forms the basis of Charge 2 on the Indictment, aggravated burglary by entering as a trespasser with an intention to steal, and at the time of entering you knew that a person was then present in the property. Your conduct in stealing the items that I have described forms the basis of Charge 3 on the Indictment, theft.
10 Eventually Ms Whalan managed to push Ms Rettalick-Ford out of the back door of the house, telling her to leave the house. Ms Rettalick-Ford and yourself returned to a car and left the property.
11 Nine days later, on 15 July 2019, police executed a search warrant at a property in Bendigo where you were then located with other individuals. You were arrested and conveyed to Bendigo Police Station. During the search of the property, police located various items. A “pipe bomb” was found in the rear room of the house which was evacuated while the bomb squad attended. Subsequent analysis indicated that this device was an improvised explosive and incendiary device containing sparklers and rifle cartridges which was capable of causing serious injury. Your conduct in storing this device forms the basis of the summary charge of manufacture or store an explosive device without approval.
12 During the search police also located various firearms – one double-barrel shotgun, one 30-06 bolt action rifle with scope, one .222 rifle, one .203 rifle, one .223 rifle, two old bolt action rifles, one .22 bolt action rifle with scope and one Winchester ranger lever action rifle – amounting to nine firearms. Some of these firearms were low-powered but a number of them were high-powered firearms. Your conduct in this regard forms the basis of Charge 4 on the Indictment, possession of a traffickable quantity of firearms, the traffickable quantity being two. Police also located various ammunition and your conduct in this regard forms the basis of the summary charge of possession of ammunition without a licence.
13 Later that afternoon you participated in a police interview. You explained to police that after receiving a call from Ms Rettalick-Ford, which raised concerns about the conduct of the occupants of Ms Whalan’s property towards your daughter, you accompanied Ms Rettalick-Ford to the property and used a sledge hammer to smash the CCTV cameras outside the house, which you believed were connected to drug dealing within the house. You acknowledged taking various items from the property, and for at least some of the incident wearing a mask.
14 In relation to the firearms you told police that they were for the purpose of protecting your family and attacking bikies. You described the incendiary device found at your property as a “sparkler bomb” and told police that you had intended to throw it through one of the paedophile’s windows. Throughout the police interview you expressed concern that there was a connection between the occupants of Ms Whalan’s house, the Rebels bikie gang, paedophilia and drug dealing.
15 On the following day, 16 July 2019, you were transported by police from Bendigo to Melbourne. Two police custody officers, Glen Roulston and Ryan Wilkins, transported you in an unmarked brawler vehicle, with you handcuffed and placed in the pod compartment of the vehicle. A few minutes after departing the Bendigo Police Station for the journey to Melbourne you started yelling at the police custody officers through the Perspex window. You yelled, “I will kill you motherfuckers. You two cunts wait till I get out of here, I will fucking kill both you sluts and the cops who arrested me”. You also kicked the Perspex window between the pod and the driver compartment very hard, and this behaviour continued for the entire trip from Bendigo to Melbourne, causing the two officers to be concerned that the Perspex window might break and that you may carry out your threats. Your conduct in this regard forms the basis of Charges 5 and 6 on the Indictment, intimidation of a law enforcement officer.
16
You have been in custody since your arrest on 15 July 2019; a period of 385 days excluding today. Your matter resolved to a plea of guilty on
19 December 2019, shortly after a submissions only committal hearing where no witnesses were cross-examined. I understand that the submissions related to the basis upon which the aggravated burglary charge was put by the prosecution and clarification in relation to the appropriate charges. In these circumstances you are entitled to a sentencing discount for an early plea of guilty. Notwithstanding that this matter proceeded to a committal hearing, I accept that no witnesses were cross-examined and there was, it seems, a sound forensic basis in relation to clarification of the prosecution case against you.
Impact on victim
17 A Victim Impact Statement from Chantel Whalan dated 22 April 2020 (Exhibit B), was tendered by the prosecution in this case. In that Victim Impact Statement, Ms Whalan clearly outlines the significant impacts of your offending on her. At the time of the incident at her property Ms Whalan was at home with her two and nine year old children. She described her feelings in being attacked in her own home and her subsequent fears for her safety and security as a result of your behaviour. She described having her life turned upside down, feeling that she cannot trust anyone anymore and that she does not feel safe in the town where she had spent most of her life.
18 Victim Impact Statements are an important means through which victims of crime can meaningfully participate in the sentencing process. I have taken into consideration the contents of Ms Whalan’s Victim Impact Statement in the formulation of an appropriate sentence in your case.
Personal background
19 You are now 41 years of age. You were born and raised in Bendigo, Victoria. You have described to psychologist, Gina Cidoni, who assessed you for the purposes of your plea hearing (Exhibit 3),[1] that your home life was very violent when you were growing up. You have four brothers, although one died approximately seven and a half years ago in circumstances which were deemed a suicide.
[1]Ms Gina Cidoni, Psychological Report (11 October 2019)
20 You left the family home when you were 15 years of age due to your father’s drunken, violent behaviour, moving in with friends in Bendigo. Your father died two years ago from complications arising from dementia. Your mother currently lives in Eaglehawk with your younger brother.
21 You were educated to Year 10 level at White Hills Technical School before completing a plastering apprenticeship over a four year period and then working in this field until you were about 30 years of age.
22 It appears, from an analysis of your background, that your circumstances began to deteriorate from this period. You had married your now ex-partner, Michelle, in your mid-20s, and there are three children to this union; a son aged 21, a daughter aged 18 and a son aged 11.
23 An examination of your relatively limited criminal history reveals that at the age of 27 you received a suspended jail sentence for what appears to be alcohol-related driving offending. In July 2010, when you were aged 31, you received a three month term of imprisonment followed by a Community Based Order for similar conduct. Two years later you received a further Community Based Order following a breach of the earlier order. Within this time period your eldest brother, who was two years older than you, committed suicide. Again, within this time period you obtained work at a company called Pasta Masta, following your lengthy involvement in the plastering industry.
24 On 29 March 2012 you slipped at work when a machine malfunctioned and you broke the lower vertebra in your back. You subsequently had lumbar surgery at St Vincent’s Hospital in August 2013 and you have suffered from chronic back pain since this time.[2] Since early 2014 you have essentially been addicted to prescription painkillers.
[2]Exhibit 2, bundle of medical material in relation to workplace injury
25 Amidst all of these difficulties your relationship with your wife did not survive, ending some seven years ago.
26 Documentation regarding your initial remand period at the Melbourne Assessment Prison revealed a history dating back as far as 2007, and extending to 2019, of contact by you with various mental health services relating predominantly to depression related issues, often of a critical nature requiring inpatient admissions.
27 In terms of drug use history you reported to psychologist, Gina Cidoni, daily cannabis usage from the age of 15 together with a history of infrequent Ice use and heavy heroin use between 2012 and 2017. You also have reported a history of previous heavy alcohol consumption together with problematic gambling behaviours, which have apparently accounted for the vast majority of the payout which you received following your workplace injury.
28 Clearly your general circumstances had deteriorated significantly in the lead up to your offending. You had not worked since your workplace accident and for some time had apparently been addicted to OxyContin. Your marriage had ended amidst your own difficulties associated with the death of your brother and, it would seem, your difficulties coming to terms with your significant workplace injuries. You had come into contact with crisis mental health services. Your behaviours in relation to drug and alcohol consumption, together with gambling, had become problematic.
29 You informed consultant forensic psychiatrist Dr Maria Triglia from Forensicare, who assessed you for the purposes of this hearing (Exhibit 3),[3] that in the months prior to the offending you had been drinking six to eight stubbies of alcohol daily, consuming two grams of cannabis daily and methamphetamine intermittently. You were also using OxyContin on multiple occasions each day. You described to Dr Triglia that in the months leading up to the offending you had become increasingly convinced that bikies in the Bendigo area were selling drugs, sexually abusing and drugging children, and may have been involved in the death of your brother. You said that your daughter had commenced using drugs at about age 16 and you knew that bikies were involved in selling drugs to young people like her. You said that you had received various text messages of a threatening nature indicating that you would be “strung up” by the bikies. In that context you informed Dr Triglia that you believed you were at risk and purchased multiple rifles to protect yourself.
[3]Dr Maria Triglia, Psychiatric Court Report (11 October 2019)
30 In relation to the sparkler bomb, as you described it, you informed Dr Triglia that you had thought of putting it through the window of a bikie’s house, although you denied having had any individual in mind.
31 You reported to Dr Triglia that prior to the offending on 6 July 2019 you had drunk a couple of cans of beer, smoked cannabis and used methamphetamine, as well as consuming OxyContin. You had attended the home of Ms Whalan as you believed that she had been supplying drugs to your daughter. You were unable to explain why you had taken items from the house. You essentially had no recollection of your conduct whilst in the custody of police officers the next day.
32 According to the Forensicare documentation relating to your initial weeks in custody following your arrest for these matters (Exhibit 4), you were clearly in an agitated and psychiatrically disturbed state, requiring you to be certified for treatment under the relevant provisions of the Mental Health Act 1986. Consultant psychiatrist Dr Douglas Bell assessed you on 23 July 2019 as suffering from paranoid psychosis consistent with a paranoid delusional disorder. According to Dr Triglia, in her report dated 3 July 2020, you acknowledged being highly distressed and preoccupied in relation to the activity of bikies in Bendigo when you were first remanded in custody but your level of distress had dissipated since this time.
33
According to Dr Triglia you have a history of mental health interventions in relation to depression for which you have previously been medicated.
Dr Triglia notes that upon your reception into custody on this occasion you were at the Melbourne Assessment Prison Acute Assessment Unit between 29 July 2019 and 12 August 2019 before being transferred to the Erskine Unit, a specialist mental health unit at Ravenhall Correctional Centre, until your discharge from there on 10 October 2019.
34 From all accounts you appear to have stabilised in custody; particularly since being moved to the Metropolitan Remand Centre (MRC). At the request of the Court Dr Triglia from Forensicare assessed you at the MRC on 15 July 2020. She also conducted a review of the relevant documentation; much of which I have already referred to. According to Dr Triglia the delusional disorder with which you were diagnosed in July 2019 upon your reception into custody appears to have developed gradually; possibly from the end of 2018. You presented to Dr Triglia as flat in affect with a depressed mood. You had persecutory delusions that bikies had been involved in drugging and harming children in Bendigo and had threatened you. With antipsychotic treatment since being in custody your concern with, and emotional investment in these beliefs has lessened considerably.
35
Dr Triglia opines that “I believe, therefore, that he currently suffers from delusional disorder currently in partial remission, major depressive disorder in partial remission and multiple substance use disorder.”[4] According to
Dr Triglia although you do not believe that you have been unwell with a psychotic illness you acknowledge having been depressed and you are prepared to continue to take antipsychotic and antidepressant medication, and you are able to identify the benefits you have obtained from taking this medication so far.
[4]Dr Maria Triglia, Psychiatric Court Report (11 October 2019), paragraph 44
36 According to Dr Triglia it is likely that with ongoing treatment your distress and preoccupation with the delusional beliefs will remain improved and therefore reduce your likelihood of acting on these beliefs. According to Dr Triglia it is likely you will need treatment in the long-term and that a return to substance abuse may cause a recurrence of distress and pre-occupation with these beliefs.
37 I accept that there appears to have been a stabilisation of your highly problematic symptoms in recent times whilst you have been on remand. According to Mr Rolfe, who appeared on your behalf, you are now feeling a lot better and have a greater degree of insight in relation to your offending behaviour. You now realise that a return to methylamphetamine use will likely lead to re-offending. You are on antipsychotic medication and you are prepared to remain on such medication and engage in long-term treatment in relation to the various issues to which I have described.
38 According to Mr Rolfe you have endured the difficulties in custody associated with the COVID-19 pandemic that all prisoners have endured; namely lockdowns, an absence of personal visits, limited telephone contact with loved ones and an inability to productively engage in various courses.
39 According to Dr Triglia you had previously undertaken a number of courses, including for drug and alcohol treatment. You are in the mainstream unit and have worked as a kitchen billet.
40 You have described your plans upon release from prison to reside with your partner of some 12 months in the area of Creswick and you have acknowledged the need to avoid the Bendigo area given your previous difficulties.
Sentencing factors
41 I am required to take into consideration various factors in formulating an appropriate sentence in your case. I have already referred to the relevant maximum penalties for your offending and the impact of your offending on your victim, Ms Whalan.
42 In relation to the objective gravity of your offending I regard the commission by you of the aggravated burglary offence to be the most serious of your criminal conduct. The gravity of this offence of course is reflected in the maximum penalty applicable for this offence; 25 years’ imprisonment. Without any permission whatsoever you attended upon the home of Ms Whalan, who was then home with her two young children. For at least part of the incident you were wearing a mask. You were armed with an axe. The sight of you behaving in an aggressive manner with the axe must surely have been a terrifying experience for Ms Whalan when she observed you through the CCTV cameras, which you were in the process of destroying with the axe.
43 However, notwithstanding your menacing behaviour you do not fall to be sentenced on the basis that you entered the property as a trespasser with an intention to assault; rather to steal. This aspect decreases, in my view, the gravity of your offending. Whilst you certainly entered a part of the property, thankfully you were unsuccessful in obtaining entry to the portion of the property where Ms Whalan and her children were then located. I agree with the prosecution concession that this particular example of aggravated burglary is of a lower gravity than the confrontational aggravated burglary frequently seen in this Court.
44 I also note that given the basis upon which the aggravated burglary is put by the prosecution; namely as a trespasser with intention to steal, this charge could have been dealt with summarily in the Magistrates’ Court if not for the firearms offending, which would therefore have resulted in a legislative cap of two years’ imprisonment for the aggravated burglary charge.
45 I also accept the prosecution submission that your offending in relation to the firearms, Charge 4 on the Indictment, represents a serious example of that charge. According to the Firearms Act 1996 the traffickable quantity of firearms is two. You were in possession of well over the traffickable quantity of firearms; some of which were high-powered. Your stated intentions in relation to the firearms further accentuates the gravity of this conduct. Your conduct in relation to possession of these firearms represents a substantial threat to public safety.
46 In relation to your conduct with the law enforcement officers which took place the day after your arrest I regard your behaviour to be very concerning. Law enforcement officers have the right to a safe work environment which is free from the aggressive and threatening behaviour engaged in by you on this occasion.
47 I turn now to a consideration of your level of responsibility and culpability for the offending. According to consultant psychiatrist Dr Triglia you had been drinking alcohol and using a number of illicit substances prior to and at the time of the offences. In the preceding six months you had developed distressing persecutory delusions. You had purchased numerous firearms and made an explosive device, by your account, to protect yourself. According to Dr Triglia:
“It is likely that his possession of the firearms relates directly to the psychotic symptoms he was experiencing at the time. In relation to the criminal damage, aggravated burglary and theft charges he appeared to be acting to protect his daughter from people he believed to be supplying her with illicit substances. It is unclear whether there was any reality basis to this. There does not appear to be a clear link between his persecutory delusions and these offences. He was affected by alcohol, cannabis, methamphetamine and opiates at the time he attended the residence and this may explain why he is unable to account for taking objects from the house. He is unable to recall his behaviour towards the law enforcement officers when being transported and it is likely that this was due to withdrawal effects from both his prescribed medication and illicit substances.”[5]
[5]Dr Maria Triglia, Psychiatric Court Report (11 October 2019), paragraph 46
48 On the basis of this expert opinion I am satisfied in relation to the firearms offence (Charge 4 on the Indictment), that your psychotic delusional disorder reduces your moral culpability and moderates the degree to which the sentencing purposes of general and specific deterrence apply to your case.[6] Of course, it cannot be forgotten that your essentially psychotic state at the time, coupled with your admitted drug use, highlights just how dangerous your conduct in relation to the firearms was, representing a significant risk to public safety.
[6]R v Verdins (2007) 16 VR 269, principles 1, 3 and 4
49 Whilst I am not satisfied that the relevant mental impairment principles operate in relation to the other offending to which you have pleaded guilty, I have taken into consideration in a general sense your deteriorating mental functioning at the time of the offending globally when formulating an appropriate sentence in your case.
50
Further, in light of your mental illness and the opinions expressed by
Dr Triglia at paragraph 51 of her report,[7] I am satisfied that any period in custody will weigh more heavily on you than it would on a person without your condition, and therefore a further sentencing discount is warranted.[8]
[7]Dr Maria Triglia, Psychiatric Court Report (11 October 2019) paragraph 51
[8]R v Verdins (2007) 16 VR 269, principle 5
51 I am also satisfied that a mitigatory allowance is further warranted in relation to the impact of the COVID-19 pandemic on the circumstances in which you have been in custody and are likely to continue to experience for at least the near future. The impact of COVID-19 on the prison setting is now well-publicised and well-known. Prison visits have been suspended indefinitely. Prisoner movements have been substantially impacted. The availability of therapeutic courses has been restricted, as has been many forms of employment within the prison setting. Prisoners live with the daily anxiety associated with the likely consequences should COVID-19 enter the prison setting. In recent weeks, and indeed recent days, these concerns have moved beyond speculation to reality, with a number of positive COVID-19 cases being detected in prison. I am satisfied that this environment, particularly given your fragile psychological state, will likely be causing you added anxiety, which in turn makes any prison sentence arduous for you.
52 I have also taken into consideration your previous character in formulating an appropriate sentence in your case. Whilst you have a criminal history, you do not have any prior convictions or findings of guilt in relation to aggravated burglary, dishonesty, firearms offending or the conduct associated with the law enforcement officers. I am satisfied, therefore, that your offending is essentially out of character and occurred for the reasons that I have articulated in my reasons for sentence.
53 I have already referred to your early plea of guilty. Your early plea represents an acceptance of wrongdoing on your part and a willingness to facilitate the course of justice. No witnesses were cross-examined in this matter and the costs and delays associated with a criminal trial have been avoided. A sentencing discount based upon utilitarian reasons is therefore warranted.
54 In formulating an appropriate sentence in your case, I have considered, as one of the relevant sentencing factors, current sentencing practices. In particular, the prosecution drew to my attention two decisions of the Court of Appeal in relation to the firearms offending.[9] These authorities make clear the objective gravity of this type of offence. I agree with the prosecution submission that your offending falls somewhere between the gravity of the two cases referred to by the prosecution.
[9]Djemal v The Queen [2020] VSCA 25, DPP v Fleiner [2010] VSCA 143
55 In formulating an appropriate sentence in your case, I have had regard to the only purposes for which sentences may be imposed; namely punishment, denunciation, deterrence, facilitating rehabilitation and community protection. Save for my earlier remarks in relation to the moderation of deterrence regarding the firearms offending, in my view the sentencing purposes of denunciation and general deterrence are particularly important in your case. Community protection is also significant given the nature of your offending; particularly the aggravated burglary and firearms offending. In your case I accept that your prospects of rehabilitation will best be fostered through an extended period of supervision upon your release from custody.
56 Your counsel submitted in these circumstances that a longer than usual parole component was warranted in your case. I agree with this submission. It is to be hoped that you continue to stabilise in prison in relation to your mental health issues and that upon your release you are provided with sustained and comprehensive supervision and specialist interventions in relation to drug and alcohol rehabilitation and mental health support.
Sentence
57 In my view, taking into consideration all of the relevant factors and principles, a term of imprisonment is warranted in your case. In light of the distinct nature of the firearms offending and the intimidatory behaviour with the law enforcement officers a degree of cumulation is warranted, subject to the overriding principle of totality.
58 On Charge 1, criminal damage, you are convicted and sentenced to 3 months’ imprisonment.
59 On Charge 2, aggravated burglary, you are convicted and sentenced to 2 years and 4 months’ imprisonment. This is the base sentence.
60 On Charge 3, theft, you are convicted and sentenced to 2 months’ imprisonment.
61 On Charge 4, possession of a traffickable quantity of firearms, you are convicted and sentenced to 14 months’ imprisonment.
62 On Charges 5 and 6, intimidation of a law enforcement officer - these charges being founded on the same facts - you are convicted and sentenced to an aggregate sentence of 4 months’ imprisonment.
63 In relation to the summary charge of possess ammunition without a licence you are convicted and fined $200.
64 On the summary charge of manufacture or store an unauthorised explosive without approval you are convicted and fined $500.
65 In relation to the sentences of imprisonment I order that 5 months of the sentence imposed on Charge 4 and 1 month of the aggregate sentence imposed on Charges 5 and 6 be served cumulatively upon each other, and upon the sentence of imprisonment imposed in relation to Charge 2, making a total effective sentence of 2 years and 10 months’ imprisonment. I order that you serve a period of 1 year and 8 months’ imprisonment before becoming eligible for parole.
66 Pursuant to s.18 of the Sentencing Act 1991 I declare a period of 385 days by way of pre-sentence detention to be administratively deducted from your sentence.
67 Pursuant to s.6AAA of the Sentencing Act 1991 I declare that but for your plea of guilty I would have imposed a total effective sentence of 3 years and 10 months’ imprisonment with a non-parole period of two years and six months.
68 Finally, I will make the disposal and forfeiture orders sought in this case.
69 Firstly, turning to you, Mr Cordy. Any ambiguities or issues in relation to the construction of the sentence?
70 MR CORDY: No, that's perfectly clear. Thank you, Your Honour.
71 HIS HONOUR: Thanks. Mr Rolfe, any issues from your perspective?
72 MR ROLFE: No, Your Honour.
73 HIS HONOUR: Thank you. Mr Tierney, you can still and hear me okay?
74 ACCUSED: Yes, I can, Your Honour.
75 HIS HONOUR: What that means in the wash-up for you, Mr Tierney, is this; you have served a bit over a year in custody already, so in a bit over six months you will be eligible for parole.
76 ACCUSED: Yes.
77 HIS HONOUR: Whether or not you get parole is a matter entirely for the Parole Board, not for me. Mr Rolfe may well have a chat to you about that, but that is the very quick summary of the sentence I have imposed in relation to this conduct; two years and 10 months' imprisonment is the total effective sentence but you are eligible for parole after one year and eight months less 385 days. Do you understand?
78 ACCUSED: Yes, I do, Your Honour.
79 HIS HONOUR: Yes, all right. Thank you very much. Mr Rolfe, I understand you want to speak briefly with your client after I leave the Bench. Is that correct?
80 MR ROLFE: Yes, it is, Your Honour.
81 HIS HONOUR: Yes. No difficulty with that. I think Mr Swindon can arrange that so that you can have confidential chat with your client.
82 MR ROLFE: I thank Your Honour for that.
83 HIS HONOUR: Thanks.---
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