Director of Public Prosecutions v Watson
[2015] VCC 587
•7 May 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 13-02159
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LUCAS WATSON |
---
| JUDGE: | HIS HONOUR JUDGE MAIDMENT |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 30 April 2015 |
| DATE OF SENTENCE: | 7 May 2015 |
| CASE MAY BE CITED AS: | DPP v WATSON |
| MEDIUM NEUTRAL CITATION: | [2015] VCC 587 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr R. Mallia | Office of Public Prosecutions |
| For the Accused | Mr R. O'Neill | Robert Stary Lawyers |
HIS HONOUR:
1Lucas Watson, you have been found guilty by a jury on an indictment charging you on Charge 1 with armed robbery; on Charge 2 of possessing an unregistered firearm; on Charge 3 of aggravated burglary; on Charge 4 of theft; Charge 6 of recklessly causing serious injury to David Longhi; on Charge 8 of recklessly causing serious injury to Sharon Longhi; on Charge 9 of armed robbery; on Charge 10 of possessing an unregistered firearm whilst a prohibited contrary to the Firearms Act; on Charge 11 of armed robbery; on Charge 12 of possessing an unregistered firearm whilst a prohibited person contrary to the Firearms Act; on Charge 13 of armed robbery; and Charge 14 of possessing an unregistered firearm whilst a prohibited person.
2The offence of armed robbery carries a maximum term of imprisonment of 25 years, the offence of aggravated burglary carries a maximum term of imprisonment of 25 years, being a prohibited person in possession of a firearm carries a maximum term of imprisonment of 15 years, theft carries a maximum period of imprisonment of ten years and recklessly causing serious injury carries a maximum term of imprisonment of 15 years.
3The prosecution tendered on the plea hearing a summary of prosecution opening for plea which spelled out the facts with the prosecution invited me to find for the purposes of sentence. That is marked Exhibit A on the plea. During the course of the plea hearing your counsel made it plain that the defence accepted that statement as an accurate statement of facts for the purposes of sentencing.
4The prosecution also relied on a number of victim impact statements which are at Exhibit B. Not surprisingly, they spell out the effects of the frightening events they had to endure at your hands during the course of these crimes. I am bound to take into account the effect of your crimes on your victims.
5I am not going to repeat what is in Exhibit A, I incorporate the facts as set out in Exhibit A in their entirety into these reasons for sentence. They have been canvassed well enough during the course of the trial and on the plea hearing.
6Turning to matters personal to you, your counsel tendered and relied upon an outline of submissions for the plea, which is Exhibit 1, and a chronology as part of that material. Again, for the sake of completeness and brevity, I incorporate that document, Exhibit 1, into these reasons for sentence in its entirety. He also provided me with a copy of a report of Carla Lechner, psychologist, dated 22 March 2012 (Exhibit 2) which was prepared for the purposes of the plea hearing before Her Honour Judge Gaynor which resulted in your being sentenced by her on 30 April 2012 for the last of the series of offences which occurred on the spree of offending culminating in your arrest on 1 May 2011.
7She sentenced you on that occasion on one charge of armed robbery and one charge of recklessly causing serious injury, to a total effective sentence of five years' imprisonment with a non-parole period of three years. She set out a number of facts in those sentencing remarks in her reasons for sentence which are clearly relevant to the sentence that I intend to impose upon you. She dealt with your background in that, much of the material upon which she relied was taken from Ms Lechner's report. I am not going to repeat the detail of that, save to say that I do not take a different view or regard the matters that she set out in her reasons as being either in need of correction or comment or, indeed, amplification.
8Your counsel, in the outline of his submissions, noted that the offences of which you have been found guilty, just as those to which you pleaded guilty in front of Her Honour Judge Gaynor, are plainly serious and require significant terms of imprisonment. You readily accept that, I am quite sure. He also noted that you are now aged 30 years and that from the age of 21 to your present age, you have spent all but 18 months in prison. That is a very unfortunate fact that you have spent perhaps the best years of your life - or most of them - in prison.
9There is no doubt that you had a difficult upbringing, there is no doubt that your relationship with your father was, to a degree, a bad influence upon you and was unfortunately conflicted, I have no doubt. It culminating in that unfortunate incident where you got stabbed and severely injured as a result.
10You, I think, are to some extent the product of your upbringing. I do not say that to excuse your conduct but it seems to me that it is a relevant context to your conduct. You did not have a great education. You now have a young daughter aged 10 who you have hardly seen and are not able to see or have contact with. I have no doubt that you would dearly love to turn the clock back and have an opportunity of presenting yourself as a parent who could be a good influence upon her in life. Unfortunately, that is not possible and I recognise that it will make life harder for you to do the time that you have still to do.
11I accept that you suffer from post-traumatic stress disorder and that that too will make your time in custody harder. I accept that you have a long history of drug abuse, going back to a very early stage in your life before you were able to make rational decisions about that sort of activity and that you have been involved in most of the better known illicit substances of one kind or another including heroin, cannabis, ecstasy, cocaine and LSD, not to mention ice. All of those things, I have no doubt, will have taken their toll on your and also form part of the context in which this offending occurred. I have no doubt that some of your offending was motivated to obtain drugs or money for drugs. I note that you have been on prescription medication such as Xanax, which you began abusing and, more recently, on anti-depressants.
12All of that seems to me to be relevant to the difficulties that you will have in serving your sentence and I take those matters into account. I also take into account the fact that it seems that, as a result of an incident which occurred in prison where you were assaulted, you have agreed to assist and, for that reason, have found yourself in protection. Although there was some discussion and contest about the degree of restriction that that will impose, I have little doubt that it will result in a slightly more restricted regime within the prison system than would otherwise have been available to you.
13I understand that the programs available through Marngoneet can still be made available to you and one hopes that you can continue to make use of those programs.
14I think that perhaps the most significant aspect of the plea on your behalf is that you have already been sentenced by Her Honour Judge Gaynor and have been serving a sentence for three years and more from that time. There was no pre-sentence detention taken into account by Her Honour Judge Gaynor and there is no pre-sentence detention for me to take into account. You were reclaimed on your parole from the sentence that you received for assaulting Summer, and no doubt you have had time to reflect on that conduct also in the added time that you have had to do in relation to that sentence, which was six and a half years altogether.
15I have got to punish you adequately for the offences for which you have been found guilty. I cannot give you any credit for pleas of guilty, Her Honour Judge Gaynor obviously could and did. I need to denounce conduct of the kind that you engaged in and I need to impose a sentence that deters you and pays proper regard to deterring others. I have also to think in the longer term about the on-going protection of the community, not just by giving you a severe sentence and throwing away the key, but imposing a sentence that gives you some real hope and some encouragement to continue with rehabilitation.
16I accept that you have already started that process. To also encourage you to think about a life away from criminal activity, particularly criminal activity of this kind. I suspect that there is some good in you, it would be hard to see that necessarily if you were in the shoes of any one of the victims of the offences. It would be hard for David or Sharon Longhi to see that but a judge is able to take a step back and look at the matter in the broad.
17Your counsel submits that you are now remorseful for your offences, you do have an understanding of the effects upon the victims of your crimes. He submitted that you have demonstrated that you are on your way to having turned over a new leaf in your life and you are setting yourself on the right road.
18I cannot say at this stage that you have good prospects of rehabilitation but somebody who demonstrates the willingness, as I think you have, to at least embark on a course of rehabilitation, needs some, and some significant, encouragement. Ultimately, I think the public is best protected by encouraging that on-going rehabilitation and giving you some measure of hope for the future.
19I was also provided with photographs of the aftermath of the assault on you in prison. It is difficult to see exactly the extent of the injuries but there was a lot of blood and it looks like a pretty ugly situation, all of which will have contributed to your symptoms of post-traumatic stress disorder. They will not have assisted your ability to cope with a lengthy term of imprisonment.
20The sentencing exercise, of course, is a complicated one because you did plead guilty before Her Honour Judge Gaynor, you did not before me and were convicted of the offences. All of these are pretty serious offences, some of them very serious. I regard the aggravated burglary as particularly serious. Apart from the fact that you forced your way into somebody's home knowing that the home was occupied, but there was a child in the background, you did not necessarily know that but there was. Your co-offender used actual violence on David Longhi and you used a very frightening degree of violence upon Sharon Longhi. It must have been a terrifying experience for both of them. They may well have thought that they were not going to live through that. The armed robberies are serious enough but I regard that as the most serious of this series of offences. I need to properly reflect the seriousness of that conduct in an appropriate sentence.
21I need to adjust down the sentences that I would otherwise have given you I order to give proper effect to the totality principle, that is the overall sentence, taking into account the sentence imposed by Her Honour Judge Gaynor for part of that series of offences committed over the period of a few days. It is necessary, therefore, for me to notionally have regard to what a judge, me perhaps, might have given you if I had been sentencing you for all of these matters at the time that Her Honour Judge Gaynor imposed sentence.
22Obviously, I have to factor into the equation the juxtaposition of those offences to which you pleaded guilty and those offences of which you were convicted by a jury. What I am going to do in imposing sentence upon you is to indicate what I would have given you for each of these offences had it not been for the sentence imposed by Her Honour Judge Gaynor and then I am going to indicate the sentence that I actually impose - perhaps I will do it the other way so that it is less confusing. I do that for the purposes of transparency so that, if this case is to be reviewed elsewhere, at least it will be clear what my reasoning process is in reaching the conclusions that I have.
23Counsel, before I move on to sentence, was there some matter that you were concerned about?
24MR O'NEILL: No. Your Honour has obviously noticed us conferring and I was checking once again the maximums and the maximum for s.5 of the Firearms Act has since changed from 15 years to 10 years. There used to be two different offences, one for registered and one for unregistered firearms and that was the case at the time that these offences were committed. So it was 15 years at the time and you have been told the correct maximum. It has no come down to ten and that is a matter which, strictly speaking, Your Honour ought to take into account. Having said that, I wouldn't have thought, given the concurrency issues in this case, that may not make any difference whatever ‑ ‑ ‑
25HIS HONOUR: I don't think it will frankly and whilst it might seem strange, I think the sentences that I intend to impose for those offences are relatively lenient. I am very conscious of not doubling up and I regard the presence of that firearm as being an aggravating feature of the armed robberies and, indeed, the aggravated burglary in each case. I am conscious of not doubling up so I think the sentences that I have in mind are commensurate with a ten year maximum in any event.
26MR O'NEILL: If it please Your Honour.
27HIS HONOUR: Do you wish to add anything?
28MR MALLIAL: No, Your Honour, I agree with that.
29HIS HONOUR: Very well.
30On Charge 1, armed robbery, I convict you and sentence you to a term of imprisonment for a period of three years; I would have sentenced you if I had been sentencing you without regard to Her Honour Judge Gaynor's sentence, to a period of five years' imprisonment.
31On Charge 2, being a prohibited person in possession of a unregistered firearm, I convict you and sentence you to a term of imprisonment for a period of 12 months; if the situation had been different, I would have sentenced you to 18 months' imprisonment.
32On Charge 3, aggravated burglary, I convict you and sentence you to a term of imprisonment for a period of five and a half years; had it not been for Her Honour Judge Gaynor's sentence, I would have sentenced you to a term of imprisonment for a period of eight and a half years. That is taking into account the three years that is the minimum term that she has imposed and the period that you have already served.
33On Charge 4, theft, I convict you and sentence you to a term of imprisonment for a period of six months; again, notionally I would have sentenced you to a one year's imprisonment if I had been sentencing you for these matters alone.
34On Charge 6, recklessly causing serious injury, I convict you and sentence you to a term of imprisonment for a period of two years; if it was not for Her Honour Judge Gaynor's sentence, I would have sentenced you to term of imprisonment for three years.
35On Charge 8, recklessly causing serious injury to Sharon Longhi, which was a direct result, I find, of your conduct with the firearm, I convict you and sentence you to a term of imprisonment for a period of two and a half years; had it not been for Her Honour Judge Gaynor's sentence, I would have sentenced you to four years' imprisonment.
36On Charge 9, armed robbery, I convict you and sentence you to a term of imprisonment for a period of three years; otherwise it would have been five years.
37On Charge 10, being a prohibited person in possession of an unregistered firearm, I convict you and sentence you to a term of imprisonment for a period of 12 months; had it been different, I would have sentenced you to 18 months' imprisonment.
38On Charge 11, armed robbery, I convict you and sentence you to a term of imprisonment for a period of three years; I would have sentenced you otherwise to five years' imprisonment for that offence.
39On Charge 12, being a prohibited person in possession of an unregistered firearm, I convict you and sentence you to a term of imprisonment for a period of 12 months; I would otherwise have sentenced you to 18 months' imprisonment for that offence.
40On Charge 13, armed robbery, I convict you and sentence you to a term of imprisonment for a period of three years; it would otherwise have been five years' imprisonment.
41On Charge 14, being a prohibited person in possession of an unregistered firearm, I convict you and sentence you to a term of imprisonment for a period of 12 months; again, I would have sentenced to you 18 months' imprisonment had it not been for the sentence by Her Honour Judge Gaynor.
42The sentence of five year and six months on Charge 3 is the base sentence and I order that six months of the sentences on Charges 1, 8, 9, 11 and 13 be served cumulatively upon one another and upon the base sentence.
43That makes a total effective sentence of eight years' imprisonment.
44Having regard to the plea that your counsel has put on your behalf to give you some real hope and encouragement, I order a non-parole period - and it is a fresh non-parole period - of five years and three months' imprisonment. Effectively, that begins today, as I understand it. Essentially, what you are looking forward to is another five years and three months' imprisonment.
45I will check with counsel to ensure that my arithmetic is correct.
46MR O'NEILL: Your Honour, the arithmetic is right in terms of cumulation, my friend and I agree. Your Honour had to impose a single non-parole period for this offending plus Judge Gaynor's offending. So if Your Honour's intention is that there be a non-parole period of five years and three months beginning today.
47HIS HONOUR: Does that backdate to the beginning of her sentence by Her Honour Judge Gaynor?
48MR O'NEILL: I'm about to delve into the section, Your Honour.
49HIS HONOUR: Because if it does then it is completely skewed.
50MR O'NEILL: Indeed, that is the difficulty.
51HIS HONOUR: I can tell you what I had in mind - I had in mind that the total effective sentence, if I had been sentencing for all of those offences, would be 13 years' imprisonment, with a non-parole period of eight years and three months or something of that order. I'm not sure I can give you precisely what I would have given him but it seemed to me that the equivalent works out to five years and three months or thereabouts, if one takes the non-parole period as starting from today.
52MR O'NEILL: Yes.
53HIS HONOUR: I understand that ordinarily the sentence begins, including the non-parole period, on the day on which the sentence is pronounced.
54MR O'NEILL: That's certainly the case. The issue is, as I understand how s.14 of the Sentencing Act works - perhaps I will ready the section so we are all clear - "If a court has sentenced an offender to be imprisoned in respect of an offence and has fixed a non-parole period, and before the end of that non-parole period the offender is sentenced to a further term of imprisonment in respect of which it is proposed to fix a non-parole period, the court must fix a new single non-parole period in respect of all the sentences the offender is to serve or complete." The wording is not as clear as it could be, whether that means all that is left of the first sentence or covering both, but my understanding is covering both because at sub-s.2(a) it supersedes any previous non-parole period. So my understanding would be that what Your Honour ought to do is to impose a non-parole period of eight years and three months, which covers both Judge Gaynor's sentence and Your Honour's sentence.
55HIS HONOUR: The only thing is that is more than my total effective sentence.
56MR O'NEILL: That's right, Your Honour, but my understanding is - and Your Honour can hear I'm not speaking with complete confidence - that even though Your Honour's head sentence operates from today, the single non-parole period operates from the coming into effect of Judge Gaynor's sentence.
57HIS HONOUR: Just bear with me a moment and see if I'm right about this but Her Honour Judge Gaynor sentenced on 30 April 2012, with a non-parole of period three years.
58MR O'NEILL: Yes.
59HIS HONOUR: Has that no expired?
60MR O'NEILL: No, because the parole period of Justice Cohen's sentence had to be served first.
61HIS HONOUR: So that's cumulative upon that, is that right?
62MR O'NEILL: That's right. So from when he went into custody on 1 May 2011, he first did two and a half years or so - and the exact figures are in the Crown opening - of Justice Cohen's sentence. Judge Gaynor's sentence would have started running in 2013, so if what Your Honour is seeking to achieve in those circumstances 13 years with eight years three months, that would only begin in 2013.
63HIS HONOUR: So I can't make a non-parole period cumulative upon Her Honour Judge Gaynor's non-parole period.
64MR O'NEILL: I don't think you can, Your Honour. I think s.14 means you need to impose a single non-parole period which begins from when Her Honour's sentence started running.
65HIS HONOUR: I thought about that, I can't sentence him now to 13 years imprisonment.
66MR O'NEILL: No.
67HIS HONOUR: Because it would mean it would start today. It's difficult to see how I can properly impose a non-parole period which is more than the head sentence.
68MR O'NEILL: I hear what Your Honour says.
69HIS HONOUR: Do you need to go to the toilet?
70OFFENDER: No, I just wanted to ask Your Honour, you know how you say that - are you saying that I have to serve the parole (indistinct) before I started her original sentence? Because that is not correct. What happens is my parole goes on top - first I serve her sentence and then ‑ ‑ ‑
71HIS HONOUR: I see, you have to finish off the parole on top of hers.
72OFFENDER: Then I finish - the parole goes on top of the other parole that I get.
73HIS HONOUR: I see.
74OFFENDER: So I've served just over four years now and I have three and a half years' parole.
75HIS HONOUR: So that comes after the non-parole period, is that what you're saying?
76OFFENDER: That's correct.
77HIS HONOUR: Thank you, that's an interesting point. I don't know whether counsel has a handle on that. Because that might bring us back to the point where Her Honour Judge Gaynor's non-parole period has expired, if that be correct.
78MR O'NEILL: Certainly the date we've been working on, Your Honour, for the expiry of Her Honour's non-parole period is July this year.
79HIS HONOUR: But if your client is right, and he may well be - and I suspect he is because generally they have a pretty good handle on the way these things work.
80Mr Corrections Officer, do you have a view on all of that?
81CORRECTIONS OFFICER: No, I'm not, Your Honour.
82HIS HONOUR: I'm not going to put you on the spot.
83CORRECTIONS OFFICER: I don't think, Your Honour, we have (indistinct words) because of the situation this morning (indistinct).
84HIS HONOUR: You could get one, yes. Is there one downstairs?
85CORRECTIONS OFFICER: I'm prepared to look, Your Honour.
86HIS HONOUR: That would be helpful, I think. Thank you very much.
87MR O'NEILL: I wonder, Your Honour, I note that there are other counsel in court whether we could stand this down.
88HIS HONOUR: We could stand this down. Perhaps, Mr Mallia, if you could make some enquiries of your office to give some intelligence on that, you may know the answer yourself, I don't know.
89MR MALLIA: Your Honour, I might confirm what I believe to be the case, if the matter could be stood down.
90HIS HONOUR: Very well. Mr Watson, thank you for your intervention and I'll give counsel and opportunity of checking the situation to make sure we get it right. You can work on the basis that the outcome that I hope to achieve is a further period of five years and three months, essentially beginning today.
91OFFENDER: (Indistinct) nine years - nine and a half years (indistinct), all up that will be nine and a half years.
92HIS HONOUR: That includes Her Honour Judge Gaynor's period?
93OFFENDER: Yes.
94HIS HONOUR: That, plus what you're owing the Parole Board, is that right?
95OFFENDER: No, three and a half years' parole, all up, 13 years with nine and a half.
96HIS HONOUR: That's an outcome that is consistent, frankly, with the seriousness of the offences and complicated thought it may be, I think that is an outcome that is consistent with my approach to the sentencing. I'm simply dealing with what's in front of me, do you understand?
97We'll stand it down for a few moments.
98(At this stage the court proceeded with another matter.)
99MR O'NEILL: Your Honour, we've been provided with a document by the Prison Officer, perhaps I could ask for a copy to be made for Your Honour and for my friend so that we can all look on.
100HIS HONOUR: Yes.
101MR O'NEILL: Could I briefly approach Mr Watson before we begin?
102HIS HONOUR: Yes.
103MR O'NEILL: In terms of the issue which I raised before, I think it is clear that Your Honour was essentially correct, that you can impose a non-parole period that begins today. However, given the complexities and - perhaps I'll say it for the record that the case that I refer to is the case of Stares from 2002 which seems to make that clear - can also do it the other way, Your Honour ‑ ‑ ‑
104HIS HONOUR: Sorry, what was the citation again?
105MR O'NEILL: The Queen v Stares [2002] VSCA 70. One can also do it the other way but it's much simpler to do it the way that Your Honour has done it and the Court of Appeal has said that that is the preferable way to approach it.
106HIS HONOUR: My way is preferable?
107MR O'NEILL: Yes. So that part of things there is no difficulty about. I don't think there's any difficulty about anything else either, Your Honour, but I wanted to go through this chronology - not every line of it - of what's happened so far so that it's clear what is happening today.
108Mr Watson was actually arrested on 1 May 2011 but the 2nd is the commencement date of his incarceration and the first period between then and Her Honour Judge Gaynor's sentence in April 2012, he was serving the parole period of Justice Kellam's sentence. So that was two and a half years or so and he knocked off just under a year of that before he was sentenced by Judge Gaynor.
109HIS HONOUR: So he still owes 18 months or so of that.
110MR O'NEILL: Yes. Then he was serving Judge Gaynor's sentence from 30 April 2012 and that would have expired a few days ago, had it not been for the sentence for riot, which he received in the Magistrates' Court which was cumulated on Judge Gaynor's sentence but, because of the operation of s.15 of the Sentencing Act ‑ ‑ ‑
111HIS HONOUR: He serves that first.
112MR O'NEILL: He serves that first. So her sentence was interrupted, he did those three months, he went back to her sentence and therefore the non-parole period for her sentence ‑ ‑ ‑
113HIS HONOUR: Has not expired.
114MR O'NEILL: Has not expired but is about to in - had today not happened, would have expired in July. From today, he will therefore be serving the five years three months that Your Honour proposes to impose as a non-parole period on both sentences, and then after that there will be the parole periods of each of the three ‑ ‑ ‑
115HIS HONOUR: What that effectively means is that there will be concurrency with Her Honour Judge Gaynor's non-parole period to the extent of the period between now and the date in July when that expires.
116MR O'NEILL: Precisely, Your Honour.
117HIS HONOUR: So that's to his advantage in that respect.
118MR O'NEILL: Indeed, Your Honour. There's that period, once he's done the five years and three months, he'll then be eligible for parole but he will still have a year and three months or so of Justice Kellam's sentence and then the parole periods of both Judge Gaynor's sentence and this sentence.
119HIS HONOUR: Yes. I can't set a non-parole period that extinguishes Justice Kellam's non-parole period.
120MR O'NEILL: No. In fact, what I said to Your Honour ‑ ‑ ‑
121HIS HONOUR: Because logically, in a way, one ought to be able to do that because he's got unexpired non-parole.
122MR O'NEILL: Yes but the way it works, according to s.15, you do - he's only got two months of unexpired non-parole.
123HIS HONOUR: But he's got the - sorry, it's not non-parole,
124MR O'NEILL: It's re-imposed.
125HIS HONOUR: ‑ ‑ ‑ it's parole owed, it's real sentence, sorry.
126MR O'NEILL: Re-imposed parole.
127HIS HONOUR: No, my muddled thinking, I'm sorry, yes. Forget what I've just said.
128MR O'NEILL: That will come presumably next after the end of the five years three months.
129HIS HONOUR: There's nothing I can do about that, I think.
130MR O'NEILL: I don't think so, Your Honour, because what I said to Your Honour last week was wrong - 16(3)(b) does apply because I had thought that that had been served first, but it hasn't - only half of it has been served, the other half must be cumulated on Your Honour's sentence, unless exceptional circumstances apply and I can't - so there's nothing Your Honour can do about that. Your Honour's taken the view that the five years three months is the non-parole period for this sentence so that's what will happen from today.
131HIS HONOUR: Very well. I am a little unsure and perhaps you can help me with this, the extent to which I can or should take into account the fact that he is still owing the Parole Board in respect of Justice Kellam's sentence.
132MR O'NEILL: Your Honour can take that into account. Your Honour has to cumulate but Judge Gaynor in fact took it into account when she imposed her sentence. When I say she took it into account I don't mean she reduced her sentence by that period or anything like it, she clearly made it explicit that she wasn't doing that. So Your Honour can do it as well, there would be no double-dipping in Your Honour's doing it. If it was Your Honour's intention essentially that he at least have the possibility of release five years and three months from today, Your Honour hasn't quite achieved it, in my submission, because of that. So I don't think there would be any error in Your Honour having - and I apologise that it's taken till now for this to have been properly put before Your Honour - but having now heard all the circumstances of the order of service of those sentences to reconsider that five years three months, in my submission, Your Honour would not be in error in doing so in the exercise of the totality of.
133HIS HONOUR: Mr Mallia, do you agree with that.
134MR MALLIA: I do, Your Honour. It's also my submission that the period between now and 26 July is the period of non-parole which, as it stands, would be served concurrently with the non-parole period imposed today of five years and three months. The other outstanding time is a matter to be taken into consideration, it's a matter for Your Honour.
135HIS HONOUR: I have to say I frankly didn't do that and I am prepared to do that. I think that possibly the right order, having regard to the concurrency which I had not taken into account either with Her Honour Judge Gaynor's sentence and the 18 months or thereabout still owed the Parole Board would be to adjust the non-parole period to four years from today. That doesn't quite give him the full one and a half years but it makes a big dent in it.
136MR O'NEILL: Indeed, Your Honour. I can see no way in which Your Honour would be erring by doing so.
137HIS HONOUR: It would seem to be a particuilarly lenient sentence on one view, but I think it's reflected justly in the head sentence what I had in mind and I think, properly understood and having regard to the need to give proper effect to promoting rehabilitation that that is a just outcome.
138MR O'NEILL: If it please Your Honour.
139HIS HONOUR: It will mean him effectively serving another five and a half years from today, as I understand it.
140MR O'NEILL: Yes.
141HIS HONOUR: Which is a lot better than six years and nine months.
142MR O'NEILL: Yes, Your Honour.
143HIS HONOUR: Mr Watson, are you following what I'm saying?
144OFFENDER: I'm ‑ ‑ ‑
145HIS HONOUR: Take it all in. What it means is that from today, instead of what you thought you were going to have to serve, it will be about five and a half years from today.
146OFFENDER: Five and a half years.
147HIS HONOUR: That's a slightly better picture than the one that I painted an hour or so ago.
148OFFENDER: Thank you, Your Honour.
149HIS HONOUR: I will, then, adjust my sentence in order to reflect a non-parole period of four years' imprisonment instead of five years and three months and I expect that that will commence today and I think I've probably said enough to indicate my reasons for doing that.
150I make the orders for forfeiture and disposal in accordance with the drafts with which I have been provided.
151MR MALLIA: As Your Honour pleases.
152MR O'NEILL: May it please Your Honour.
153HIS HONOUR: Are there any other orders I need make?
154MR MALLIA: No, Your Honour, just that the non-parole period is one new non-parole period ‑ ‑ ‑
155HIS HONOUR: It's a new non-parole period for Her Honour Judge Gaynor's and this matter.
156MR MALLIA: Yes, Your Honour.
157MR O'NEILL: Yes, Your Honour.
158HIS HONOUR: Commencing today. Anything else?
159MR MALLIA: No, Your Honour.
160MR O'NEILL: No, Your Honour.
161HIS HONOUR: Thank you, you can take Mr Watson. Thank you for your help, both of you.
162MR MALLIA: Your Honour pleases.
163MR O'NEILL: If it please Your Honour.
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