Director of Public Prosecutions v Watson
[2014] VCC 888
•16 June 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-13-01867
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JASON RODNEY WATSON |
---
JUDGE: | HER HONOUR JUDGE DAVIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 March 2014 | |
DATE OF SENTENCE: | 16 June 2014 | |
CASE MAY BE CITED AS: | DPP V Watson | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 888 | |
REASONS FOR SENTENCE
---
Subject: Criminal Law – Plea - Sentence
Catchwords: Burglary – criminal damage – common assault – make threats to kill – attempt to pervert the course of justice – make threats to damage or destroy property – arson – mild intellectual disability – justice plan refused – Verdins principles enlivened – serious and violent offender
Legislation Cited: s. 6F, s.18 and s.44(1)(b) Sentencing Act 1991 (Vic) – Disability Act 2006 (Vic)
Cases Cited:Paul Andrew Arthurs v. the Queen [2013] VSCA 258; DPP v. Michael James Derby [2007] VSCA 92
Sentence: Pursuant to s.44(1)(b) of the Sentencing Act, the sum of all terms of imprisonment to be served after deducting 369 days of pre-sentence detention pursuant to s.18 of the Sentencing Act is 3 months. In addition to sentence of imprisonment a 3 year community corrections order with conditions.
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P O’Halloran | OPP |
| For the Accused | Mr R Martini | Rainer Martini & Associates |
HER HONOUR:
1 Jason Rodney Watson, you have pleaded guilty to the following charges: burglary (one charge), which carries a maximum sentence of 10 years imprisonment; criminal damage (one charge), which carries a maximum of 10 years imprisonment; common assault (one charge), which carries a maximum of 5 years imprisonment; make threats to kill (two charges),[1] which carries a maximum of 10 years imprisonment; attempt to pervert the course of justice (one charge), which carries a maximum of 25 years’ imprisonment; make threats to damage or destroy property (one charge), which carries a maximum of 5 years imprisonment; and arson (one charge), which carries a maximum sentence of 15 years imprisonment.
[1]I note that in the event that a term of imprisonment is imposed on the first of the threat to kill charges, the second charge of make threat to kill enlivens the serious offender provisions of the Sentencing Act. However, the prosecution indicated that it did not seek a disproportionate sentence in relation to this second make threat to kill charge.
2 The charges relate to offending on three days: 2, 9 and 11 June 2013. Prior to the offending, for about 6 months up to late May 2013, you had been in a relationship with the complainant, Rachel Drakopoulos (aged 28) and had lived with her at 2/6 Alexandra Road in Ringwood East (“the address”) with her twin daughters, aged 6. On 30 May 2013, the relationship ended, but in the context of the offending you allegedly committed against her on that day, bail conditions were imposed on you including that you were forbidden to approach or contact the victim or attend the address where you had lived with her.
3 On 2 June 2011, when the complainant came home with her daughters, you were asleep on the couch in the lounge room. She saw that food had been smeared on the walls and her bed. This is the subject of charge 1, burglary, and charge 2, criminal damage. You woke up, had a discussion with her, got angry, and pushed her into the bedroom wall, causing her to fall. This is the subject of charge 3, common assault. You then went to the kitchen, got a carving knife and held the blade out towards her. This is the subject of charge 4, making threats to kill. You then yelled to her that you wanted her to drop the charges, that is, the charges relating to 30 May, and that you would leave her alone if she did so. You, she and the children then went by train to the Ringwood police station, and you waited outside while she and the children went in. She told police you had threatened her, assaulted her and forced her to attend the station to drop the charges. This is the subject of charge 5, attempt to pervert the course of justice.
4 Charge 6 relates to threats to damage or destroy property made between 9 and 11 June 2013 to the complainant’s mother, Petra Czernohous.
5 On 11 June 2013, at around 5.20pm, you were seen by a witness in a car outside the complainant’s address. You were with another male. You drove off, but around that time, when neither the complainant nor her children were present, you entered her address, where you still had some of your own possessions, gathered flammable items together in the lounge room and master bedroom, and lit a fire in each of these rooms. This is the subject of charge 7, arson. The fire burnt throughout the whole house. Demolition of it and construction of a replacement home will cost around $260,000.
6 On the same evening, you drove with your male companion to the home of Petra Czernohous. Evan Ballingall had been asked by Ms Chernohous to be present at the house due to threats made by you on 9 June and referred to previously. He was waiting in the driveway when you arrived. You then left, but returned in the car several times, each time asking, more aggressively where Ms Czernohous was. On the final attendance you yelled: “fucking tell that whore I’m gonna come back and drive me car through the house. I’m gonna fucking kill her”. You then yelled to Ballingall: “Maybe I should reverse the car and run over you”, before driving away. This is the subject of charge 8 – threat to kill.
7 At around 11pm that night, you telephoned Ms Czernohous, who was with police, and admitted that you had set fire to the victims unit, stating: “I just torched your daughter’s house and I’m gonna drive my car into your house”. This threat to damage her property makes up part of charge 6.
8 You were arrested on 12 June 2013 and were interviewed. At that time, you admitted Charge 2 but denied the remaining charges. You were remanded in custody. As at the date of the plea hearing, you had spent 281 days in pre-sentence detention. As at today’s date, you have spent 369 days in pre-sentence detention, not including today.
9 You pleaded guilty to all charges at the committal mention on 1 October 2013.
10 The victim impact statement of Rachel Drakopoulos dated 17 March 2014 was read out in full at the hearing at her request. It is not necessary to repeat it in full. In essence, she indicated that she had to move interstate as a result of your offending, and still feels nervous when she is in the street. She feels isolated and has lost a lot of friends. The children are easily frightened. She has trouble sleeping and uses food to help her cope. She has put on a lot of weight in the past 9 months. She and her children lost all their belongings in the fire and miss their things. She has had to set up a new house from scratch.
11 The victim impact statement of Petra Czernohous dated 14 March 2014, concerns your threats to burn down her house, which is the subject of charge 6, and your threat to kill her which were expressed to Evan Ballingall, which is the subject of charge 8. Since the offending, Ms Czernohous states that she has been unable to sleep properly and constantly fears that someone will break into her house, or destroy her property, or harm her family. She had a very close relationship with her daughter and grandchildren and is badly affected by the fact that they now live in another state out of fear that you or your associates will try and hurt them.
12 You are 24 now and were 23 at the time of offending.
13 A number of reports were tendered on your behalf. There were psychiatric reports from Dr Anthony Cidoni (dated 27 September 2013) who assessed you in prison and Dr Kojadinovic, who treated you at Maroondah Hospital between November 2011 and February 2013 and a neuropsychological report of Dr Diana Perre dated 29 January 2014. These deal fully with your personal circumstances and it is appropriate to provide a brief summary of them.
14 Your parents separated when you were a baby, and your mother remarried. While at school, you had special needs support. You started using cannabis daily at age 13, and methamphetamines from the age of 17, but stopped using them for 6 months before meeting the complainant. You resumed smoking cannabis and using methamphetamines daily while in a relationship with her, including at the time of the current offences. Prior to your relationship with the complainant you drank some alcohol but during the relationship you were drinking a four-pack of mixed spirits per day and after 30 May your alcohol intake doubled. You used LSD and ecstasy weekly from the age of 17 to 20 and used ecstasy after the relationship ended in May 2013. During your relationship with the complainant you were taking about five 5mg diazepam tablets per day.
15 Your psychiatric admissions to Maroondah hospital were outlined in the psychiatric report of Dr Kojadinovic dated 27 May 2013. He noted that your background history was that of substance dependency disorder and drug induced psychosis. Your first admission with psychosis was between 20 November and 2 December 2011. You responded well to medication and were treated with antipsychotic medication and then discharged to Child and Youth Mental Health Services (CHYMS) for long-term follow up. You were referred to Prevention and Recovery Care between 20 January and 3 February 2012 for stress management, although you did not express any psychotic symptoms at the time. However, you reported a relapse of psychotic symptoms with amphetamine use and were re-admitted for a week on 17 August 2012. You were discharged on olanzapine. You were admitted again on 17 February 2013 reporting persecutory ideas after further regular use of amphetamines. Your mother did not want you staying with her due to your substance abuse. You were discharged to your community care team. You were again an inpatient for a few days in late February 2013 when you received anti-psychotic medication. You were shown a supported accommodation option and were discharged from acute psychiatric care to the CYMHS in the community. At the time of discharge you did not have symptoms of depression or psychosis and denied any suicidal ideation. The plan was for you to attend drug and alcohol services to deal with your addiction problem. You were provided with tablets of chlorpromazine to take only in the case of frustration and distress. Dr Kojadinovic diagnosed substance dependence disorder in relation to use of amphetamines and substance abuse disorder in relation to use of cannabis. He reported that you had been aware of the impact of substance abuse on your mental state and were encouraged to engage long term with alcohol and drug services.
16 According to the psychiatric report of Dr Cidoni, you disengaged with treatment and had not seen your mental health case manager for several weeks prior to the offending. You were not sleeping well and were paranoid. However, you told him you made sure that Ms Drakopoulos was not at home at the time of the fire. You said that you were not coping well in jail and were willing to go into drug rehabilitation as soon as possible. You were being treated in custody with antipsychotic medication but were still experiencing anxiety, insomnia, and paranoid ideation.
17 When he saw you, you reported having paranoid thoughts, recognised you had problems with psychosis and were accepting of the antipsychotic treatment you were receiving. You have been on a disability support pension for about three years. You were homeless after your relationship with the victim ended.
18 Dr Cidoni noted that you had a history of mild intellectual disability which would contribute to impulsivity and impaired judgement and would affect your ability to cope with stress. He felt that further neuropsychological testing was warranted to gauge the impact of your substance abuse on your intellectual functioning. He diagnosed significant polysubstance dependence, in particular cannabis and amphetamine, which commonly trigger psychotic symptoms. He noted that you reported abstaining from drug use for 6 months but relapsing into substance use twelve months before the offending, during the course of your relationship with Ms Drakopoulos. He noted that you had delusions of Ms Drakopoulos’ infidelity at the time of the offences, and this was one of your recurring psychotic symptoms. He felt that your offending reflects a number of factors: intoxication with methamphetamine and cannabis, which led to aggression, impulsivity, impaired judgment and exacerbation of psychosis; as well as inability to cope with stress; your intellectual deficits; and an unstable mental state worsened by the end of your relationship and homelessness.
19 He felt that you had antisocial personality traits associated with your intellectual deficits and substance abuse. He diagnosed features of psychosis, but was uncertain as to whether the psychotic symptoms are purely drug induced or indicated an underlying psychotic disorder such as schizophrenia. He noted that you continued to experience psychotic symptoms in custody, albeit of a milder severity. He felt that your mental state was likely to be quite vulnerable in custody, with ongoing paranoia and distress and that imprisonment would be more difficult for you than for a person in normal health. He felt that intensive treatment for your substance abuse issues was necessary and noted that you are willing to go into rehabilitation immediately upon release.
20 A neuropsychological report from Dr Diana Perre dated 29 January 2014 noted that from information obtained from your mother you were born 6 weeks prematurely, and did not reach language and cognitive developmental milestones within age-appropriate time frames. You had learning difficulties all through school and were diagnosed with attention deficit hyperactivity disorder (ADHD). You were on medication for this condition but ceased taking it in high school as it affected your appetite. You had a lot of behavioural problems at school and were suspended more than 30 times. You kept moving to the next level at school in spite of not achieving the necessary standard. She took a history of your attending special school part-time on top of mainstream secondary school, although this is contradicted by the material recently provided to the Court and which is referred to in paragraph 32 below.
21 According to Dr Perre, you have had no sustained periods of employment since leaving school as you often lose interest. Dr Perre assessed your Full Scale IQ as 63, which is consistent with a mild intellectual disability. Testing revealed that you demonstrated additional impairments in the areas of literacy, numeracy, memory and higher-level executive functions. Dr Perre concluded that these additional impairments, which are permanent, resulted from your disrupted education, serious mental illness and substance abuse and dependence. She felt that you will require structured support with complex decision making and will most definitely require assistance reintegrating into the community and acquiring employment. She felt that any rehabilitation or treatment strategies will have to cater for your cognitive and intellectual disability.
22 Your mother, Sharon Watson, provided a detailed letter to the Court which sheds more light on your personal circumstances. Mrs Watson indicated that you were not abusing drugs prior to your relationship with Ms Drakopoulos, who is six years older than you, but that during your relationship with her you consumed a lot of alcohol and drugs. Prior to meeting her, you had had many girls as friends and never treated them badly. You were also a good worker. Your mother managed your funds for you when you lived with her. You told her that you offended because the drugs you were on made you angry, that you tried to get help at the Maroondah Mental Health service two days in a row and asked to see your doctor but it was the weekend. While you have been in jail your grandfather who lives only 5 streets away had a leg amputated and you have been unable to assist him. She asked that your sentence not be a crushing one and says that there is hope for you because you like working, and have hobbies like fishing, camping and riding motorbikes. She says you have been telling her every day how sorry you are for what you have done, and have remained drug free in jail, getting regular urine tests. She asked for regular urine testing when you are released.
23 Your counsel emphasised that you are a youthful offender, aged 23 at the time of the offending, and that the offending occurred within a relatively short space of time, very soon after your relationship with Ms Drakopoulos ended, over a number of days, and involved little planning as well as an irrational destruction of property in the sense that you had some items of furniture inside the house that you burned down. You were also affected by your impaired cognition, intellectual disability, and untreated psychotic symptoms. It was submitted that although you did not make full and frank admissions to police, you made some acknowledgement of your actions; and you pleaded guilty at the first opportunity, the committal mention. You were very keen to accept responsibility for your actions, and you provided a sincere letter of apology to the Court which was Exhibit D in which you expressed remorse for your offending, indicated your willingness to accept any help or participate in any programs which would assist you to remain drug free and avoid reoffending. You wrote a second letter to the court dated 25 January 2014, which is Exhibit H, in which you again expressed genuine remorse for your actions and regret about the suffering you caused your victims, indicated a desire and intention to repay them for their financial loss once you commence work with your father, and indicated a desire to undertake any community work that would be offered.
24 Your counsel also referred to the fact that you had not sought bail but had spent 281 days in custody up to and including the date of the plea hearing and during that time have obtained a number of certificates, which were tendered as a bundle as Exhibit E, showing that you have completed programs in work education, traffic management, production nursery, cleaning operations, vocational preparation, drug education, substance abuse, and relapse prevention. He noted that due to your intellectual deficits you were unable to cope in mainstream prison and were being picked on by other prisoners. For this reason you were moved to an intellectual disability unit where you are being mentored but are still requiring a great deal of support in that environment.
25 Finally, your counsel relied on the support you have received and will continue to receive from your mother, Sharon Watson, as evidenced by her letter. You lived with her without incident before your relationship with Ms Drakopoulos, and she indicated that she would have you back living with her when you are released.
26 Through Mr O’Halloran, the prosecution conceded that you are to be treated as a youthful offender, that your early plea of guilty shows remorse and that further evidence of remorse is contained in your letters to the court. The prosecution conceded that Verdins considerations arise from your intellectual and cognitive impairment and from your psychosis which was untreated at the time of your offending. The prosecution took me to the decision of the Court of Appeal in Paul Andrew Arthars v the Queen [2013] VSCA 258, in particular to paras 13-15 which confirm that there must be some real connection between the mental disorder and the offending behaviour the subject of the charge, before it can be suggested that any reduction in moral culpability, and consequent mitigation in sentence, ought to flow from that disorder.
27 The prosecution noted that you indicated in your record of interview that you were careful to make sure no one was in the house when you set fire to it. The prosecution also noted the report of Dr Cidoni to the effect that your psychosis may be drug induced. The prosecution relied on your answer to question 145 in the record of interview, when you said in effect that you “flip out when not on your medication”, as acknowledgement by you that taking drugs causes your psychotic symptoms. To the extent that you had this awareness, prior to your offending, yet continued to take the drugs which produced your psychotic symptoms (if that is indeed the case), the prosecution submitted that I should find less reduction in moral culpability, and therefore lessen any moderation in sentencing that would flow from your psychotic disorder.
28 The prosecution submitted that this instance of arson was a serious example of a serious offence, coming at the end of a period of offending by you, and that the appropriate disposition was one involving an immediate custodial sentence. In this regard, the prosecution took me to the decision of DPP v Michael James Derby [2007] VSCA 92. The prosecution contended that a significant immediate custodial sentence was the appropriate disposition. For this reason, it was submitted that a community corrections order would not be an appropriate disposition.
29 At the conclusion of the plea hearing, I indicated that I would adjourn the matter while you were assessed for suitability for a Community Corrections Order and an attached Justice Plan. I received a Pre-Sentence Report from Corrections Victoria dated 23 April 2014 which found you suitable to complete a Community Corrections Order in the light of your age, stated desire to undergo drug and alcohol counselling and psychological counselling, your stable accommodation and supports in the community. The report recommended conditions for assessment and treatment for drug abuse or dependency, mental health assessment and treatment, and any offending behaviour related program. The report assessed you as have a low risk of general re-offending but given the number of high and moderate risk and needs area such as mental health and drug and alcohol treatment, you were upgraded to a moderate risk.
30 I received a letter dated 23 May 2014 from Sue Cooper, Manager, Disability Client Services, to the effect that you did not meet the definition of intellectual disability set out in the Disability Act 2006 which states your impairment must have been manifest before the age of 18 years. For this reason, it was not possible for a Justice Place to be provided for you.
31 Having regard to the clear psychiatric and psychological evaluations indicating that you currently, at the age of 24 have an intellectual impairment, and the information contained in the reports to the effect that you attended special schools, I reconvened the court on 6 June 2014 to discuss the possible reasoning for the conclusions reached by Ms Cooper. The matter was briefly adjourned while the prosecution sought instructions in relation to the Court’s powers in the light of the conclusion in Ms Cooper’s letter. During that intervening period, I caused inquiries to be made of her to ascertain the basis of the conclusion she reached. Ms Alison Treeby, on behalf of Ms Cooper, responded via email to my Associate, confirming that you did not meet the criteria for intellectual disability because an IQ below 70 was not diagnosed before the age of 18. She attached two reports on which she had relied, neither of which had been before this Court. The first of these was a Psycho-educational assessment report dated 31 March 2000 by psychologist Peter Monk, which concluded after testing that at the age of 8 or 9 you had a Full Scale IQ of 83, which he described as Low Average level of intellectual functioning, but noted that you were performing well below grade level in arithmetic, spelling and reading. The second of these was a letter dated 29 October 2003 from psychologist Vicki Kyrou referring to your behavioural problems at school, in particular your continued use of obscene language which saw you frequently suspended but which you often denied making. She recommended that you be assessed neurologically and neuropsychologically.
32 Ms Cooper confirmed in an email to the solicitor for the Office of Public Prosecutions dated 6 June 2014 that her records indicated attendance at mainstream primary and secondary schools with support from a special unit, but no attendance at special school. Notwithstanding that you do not meet the criteria for provision of a Justice Plan, Ms Cooper confirmed that you will continue to receive the support that you require from Client Disability Services. Counsel were provided with the additional documents and invited to make any further submissions in writing. Your counsel repeated his submission urging for the imposition of a Community Corrections Order. Counsel for the prosecution, acknowledging that you have already spent over a year in custody and have recently been assessed as having an intellectual disability in addition to cognitive impairment and polysubstance abuse, conceded that some moderation should flow from the connection between your intellectual and cognitive impairments, but that this moderation should in turn be somewhat moderated in the light of your knowledge or recognition that your behaviour was adversely affected by substance abuse.
33 Your offending took place over a number of days, close in time, and breached the bail conditions imposed upon you on 30 May 2013, when your relationship with Ms Drakopoulos ended. The offending occurred very soon thereafter. The most serious offence you committed was the arson committed on 11 June, on the last of three days of offending spread over 9 days, which resulted in destruction of the house inhabited by her and her two children. The other serious offence you committed was the threat to kill on 2 June, which took place in the context of other offences the same day. General and specific deterrence and just punishment would ordinarily be the predominant sentencing considerations, although your youth and prospects for rehabilitation would also weigh heavily in the mix. In relation to Verdins principles, the Crown has conceded the diagnoses made by the various specialists to which I have referred above. You suffer from a significant cognitive impairment, an intellectual impairment, substance abuse disorder, substance dependence disorder, the last of these leading to periods of drug induced psychosis. You most recent inpatient admission was in February 2013 when you received antipsychotic medication.
34 However, in the weeks before your offending you had disengaged with treatment, were not taking medication, and had not seen your mental health case manager and had been using drugs. Your psychosis may be partly drug induced but also may be indicative of an underlying psychotic disorder, such as schizophrenia. You had delusions about Ms Drakopoulos’ infidelity at the time of the offending.
35 I consider that the expert evidence clearly enlivens Verdins principles. I am satisfied that there is a realistic connection between your mental impairments (your psychiatric state, cognitive state and intellectual impairment) and your offending and that your moral culpability for your offending is substantially moderated. In the circumstances of this case, given your clear cognitive and intellectual impairments, I consider that your acknowledgment that taking drugs sets off some of your psychiatric symptoms should only detract to a very minimal extent from the reduction in moral culpability which flows from your mental conditions. It follows that considerations of just punishment, general and specific deterrence have a much reduced role as sentencing considerations. I note that your detention on remand has been very burdensome. Based on those difficulties on remand that you have experienced to date, I am also satisfied that your intellectual and cognitive deficits mean that a prison sentence would weigh more heavily on you than it would on a person in normal health.
36 I also note that in the event that a term of imprisonment is imposed on the first of the threat to kill charges, the second charge of make threat to kill enlivens the serious offender provisions of the Sentencing Act. However, the prosecution indicated that it did not seek a disproportionate sentence in relation to this second make threat to kill charge.
37 In sentencing you today, I pay regard to the principles of totality and proportionality. As previously outlined I note that you have spent over a year in custody since you were remanded on the 12th June 2013.
38 In the unusual circumstances of this case, having regard to your youth, cognitive, intellectual and psychiatric impairments and their consequences, your early plea of guilty, your extensive expressions of remorse, the absence of any relevant prior criminal history, and your excellent prospects for rehabilitation as demonstrated by the programs you have undertaken while on remand, as well as the support you have from your parents, I consider that the protection of the community does not require you to serve any substantial further time in prison. Rather, protection of the community and just punishment, as well as the weightier considerations of your youth and good prospects of rehabilitation, will be best served by a substantial period of ongoing supervision within the community.
39 You have been assessed as suitable for a Community Corrections Order. I propose a disposition within the terms of s.44(1)(b) of the Sentencing Act, that is, a community corrections order combined with a term of imprisonment not exceeding 3 months, but which takes into account the time you have served. The Community Corrections order would be for a period of 3 years. It would be my intention that you be subject to supervision, to treatment and testing for drugs and alcohol, for psychiatric and psychological assessment and treatment, and for other programmes which will assist your rehabilitation. You will be required to perform 150 hours of unpaid community work over the next three years. It is important for you to understand that what I propose are onerous orders, and that a breach of any of those conditions can be a breach which will bring you back before this Court to be re-sentenced on the charges I am sentencing you for today. I also propose to impose a condition of judicial monitoring which means that you will come back before me from time to time so that I can monitor your progress under the Community Corrections Order. So, you need to understand that you have to comply with all the conditions. Also, you must not re-offend.
40 There will also be a short further term of imprisonment up until 16 September 2014. I will ask your counsel just to explain these matters to you in my presence. Before you do that, do you want me to read out the structure of it or just to indicate to your client that there will be a three-year community corrections order, but there will be further term of imprisonment for a further three months.
41 COUNSEL: Yes, Your Honour. Perhaps Your Honour could indicate that just briefly, and then I will go and talk to him again.
42 HER HONOUR: All right. So the proposal is, just so that you understand it, Mr Watson, and then I will go through how it’s detailed, that you be sentenced to a community corrections order for a period of three years involving 150 hours of unpaid community work and the conditions that I will refer to that I’ve just taken you through as well as a further period of imprisonment until 16 September 2014. If you can just check that he will consent to that order.
43 COUNSEL: I will explain that, Your Honour, yes, indeed.
44 HER HONOUR: And then I will, thank you.
45 COUNSEL: Yes, I believe he understands, Your Honour. I did take the opportunity of previously discussing – although, again, it’s not an easy concept even for lawyers to understand necessarily – the provisions of the Act under s.44, but I did explain on a number of occasions that there may be the prospect of, obviously, more time, but that that would be a possibility, and I believe he understands that.
46 HER HONOUR: So do you understand the terms of the community corrections order, Mr Watson, and do you consent to the making of that order?
47 PRISONER: Yes.
48 HER HONOUR: Would you please stand. On the charge of arson, charge 7, you are convicted and sentenced to a term of imprisonment of 365 days. This is the base sentence. On charge 4, threat to kill, you are convicted and sentenced to 120 days imprisonment. On charge 8, threat to kill, pursuant to s.6F of the Sentencing Act 1991 you are convicted and sentenced as a serious and violent offender to 60 days imprisonment. On charges 1, 2, and 3, that is, burglary, criminal damage and common law assault, you are convicted and sentenced to an aggregate term of imprisonment of 60 days. On charge 5, attempt to pervert the course of justice, you are convicted and sentenced to 60 days imprisonment. On charge 6, threat to damage or destroy property, you are convicted and sentenced to 30 days imprisonment.
49 I turn to the issue of cumulation. I direct that 30 days of the aggregate sentence imposed in respect of charges 1, 2 and 3 be served cumulatively on the base sentence. On charge 4, the first threat to kill, I direct that 36 days be served cumulatively on the base sentence. This was the most serious offence committed by you on 2 June, and it was clearly a frightening experience for the victim. I direct that 30 days of the sentence imposed on charge 5, attempt to pervert the course of justice, be served cumulatively on the base sentence. As some of the conduct the subject of charge 6 occurred on the same day as the arson I consider it appropriate that the sentence on charge 6 be served concurrently with the base sentence.
50 While you have been sentenced as a serious offender on charge 8, I direct that this sentence be served concurrently with the base sentence because the second threat to kill was less serious and was directed at the complainant’s mother but, in fact, made to her male friend. Pursuant to s.44(1)(b) of the Sentencing Act, the sum of all of the terms of imprisonment to be served after deducting the 369 days you have served in custody as pre-sentence detention pursuant to s.18 of the Sentencing Act is three months which means that you will be released from custody on 16 September 2014 which is three months from today.
51 In addition to the sentence of imprisonment just referred to, noting that you have been assessed as suitable to receive a community corrections order, I propose to sentence you to a three-year community corrections order with the following conditions: that you perform 150 hours of unpaid community work, that you receive supervision, that you receive assessment and treatment including testing as directed for drug dependency or abuse, that you receive mental health assessment and treatment as directed that may include psychological, neuropsychological, psychiatric or treatment in hospital or residential facility, that you participate as directed in any program that addresses factors relating to your offending, including offender behaviour programs, and, finally, that you be subject to judicial monitoring. The last condition means that you will be required to appear before me on 16 December this year so that I can determine how you are progressing under the community corrections order.
52 I understand that you will be living with your mother who will be assisting you with day-to-day matters. She also needs to understand that if you have any trouble complying with any of the conditions in the community corrections order, you or she should raise it with the Office of Corrections or, if necessary, have it brought back before me. Finally, I order that pursuant to s.464ZF(2) of the Crimes Act that you undergo a forensic procedure for the taking of a scraping from the mouth. I must inform you that if you do not consent to this procedure, the sample taken will be a blood sample, and reasonable force may be used. I make this order due to the seriousness of the offending, that the order is not opposed and because the order is in the public interest.
53 Ordinarily, in relation to an indication under s.6AAA of the Sentencing Act, had you not pleaded guilty to the charges I simply indicate that I would not have imposed a community corrections order, and that I would have imposed a much longer period of imprisonment, but I don’t need to indicate exactly what that would have been. I understand there was going to be some further order. Is there a compensation order being sought?
54 PROSECUTOR: No, Your Honour.
55 HER HONOUR: No. All right.
56 COUNSEL: Your Honour, might I just in terms of arithmetic – and, again, it’s not my strong point, but ‑ ‑ ‑
57 HER HONOUR: No, that’s all right. What I might I do is hand down copies of it and just leave the Bench for a couple of minutes while you work your way through it.
58 COUNSEL: Yes, Your Honour. That’s fine. Thank you, Your Honour.
59 PROSECUTOR: Thank you, Your Honour.
60 HER HONOUR: We’ve tried to check it a number of times.
61 COUNSEL: Yes. I get an extra two days. I get 92, so I’m just sort of ‑ ‑ ‑
62 HER HONOUR: Well, my associate might stay with you and just go through it with you briefly, and then I will come back. Thank you.
63 COUNSEL: Thank you, Your Honour. Good. As Your Honour pleases.
64 PROSECUTOR: Thank you, Your Honour.
(Short adjournment)
65 HER HONOUR: Calculations are all right?
66 PROSECUTOR: Yes, Your Honour. Thank you.
67 COUNSEL: Yes. Thank you, Your Honour.
68 HER HONOUR: All right. I will just sign the forensic orders. Just bear with me a minute. Thank you.
---
0
2
0