Director of Public Prosecutions v Whelan

[2017] VCC 1746

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-00648
CR 17-01008

DIRECTOR OF PUBLIC PROSECUTIONS

v

BRENT WHELAN
TIMOTHY O'NEILL

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JUDGE:	HIS HONOUR JUDGE MCINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	3 November 2017
DATE OF SENTENCE:	22 November 2017
CASE MAY BE CITED AS:	DPP v Whelan & Anor
MEDIUM NEUTRAL CITATION:	[2017] VCC 1746

REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – co-accused – aggravated burglary – intentionally causing serious injury – theft - possessing a drug of dependence.
Legislation Cited: Crimes Act 1958 (Vic), Sentencing Act 1991 (Vic), Drugs, Poisons and Controlled Substances Act 1981 (Vic)
Cases Cited: Hogarth v R, [2012] VSCA 302, Hi v The Queen reported [2017] VSCA 315
Sentence: WHELAN – Convicted and sentenced to a total effective sentence of 9 Years imprisonment with a non-parole period of 7 years imprisonment.
O’Neill – Convicted and sentenced to a combination sentence of 1 year imprisonment and a 4 year Community Corrections Order.  

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Perry	Office of Public Prosecutions
For Accused WHELAN	Ms A. McLure	Leanne Warren and Associates
For Accused O'NEILL	Mr B. Newton	Simon English Lawyers

HIS HONOUR:

1Mr Whelan and Mr O'Neill, I will make these remarks which will necessarily be relatively lengthy. They are necessary, one, to put on the public record why I am pronouncing the sentence I am, and two, so that you hear the matters that were put to me on your plea and I deal with those matters.  Of course they also form part of public record.  What I will do in each instance, firstly with you
Mr Whelan, when I finish with the sentence remarks, is ask you to stand, I will pronounce sentence and then I will ask Mr O'Neill to stand, when I get to you.

2On 3 November of this year, Mr Whelan pleaded guilty in this Court to the charges in indictment number G12812551. The first two of those are particularly serious, given the high degree of culpability demonstrated in the facts surrounding them. They relate to an aggravated burglary which took place on 29 September 2016. The first charge is a charge of aggravated burglary under, s.77 of the Crimes Act 1958, bringing with it a maximum penalty prescribed by Parliament of twenty-five years.  Suffice for me to point out, such that is the highest maximum penalty in the Crimes Act, but for the crime of murder. 

3The offensive weapon mentioned in the indictment which makes up the aggravation, was a tomahawk and there was recklessness as to the presence of the persons in the premises.  To say the least, Mr Whelan's performance certainly meets the classic definition, as discussed by our Court of Appeal in Hogarth v R, [2012] VSCA 302, of a confrontational aggravation burglary. In addition to that, after the second aspect of the aggravated burglary, that is on returning to the home, Mr Whelan also pleaded guilty to intentionally cause serious injury to the victim in this matter, Andrew George.

4Mr Whelan was 21 at the time, he is now 22, having been born on 1 March 1995 and Mr O'Neill also was 21 at the time, having been born on
29 September 1995.  The victim, Mr George is 26, having been born on
25 October 1991. In addition, the third charge on the indictment was a theft of television from the premises. I said that the maximum offence prescribed by Parliament, so far as the aggravated burglary, is one of twenty-five years, intentionally cause injury being an offence against s.16 of the Crimes Act, equally brings with it a severe penalty, a maximum penalty of twenty years, and the theft of the television is an offence under s.74(1) of the Crimes Act, bringing with it a maximum penalty of ten years.

5The matter was adjourned to 3 November to allow Mr O'Neill's charges to also be dealt with.  On 3 November, filed were the prior history of Mr Whelan, which is considerable.  I suppose it should be said, given what this Court sees such does not necessarily stand out, but there are relevant priors.

6In particular, and details of which were given to the Court, and tendered as Exhibit J by the prosecutor, is the conviction on 7 June 2016, of an assault with a weapon, robbery, intentionally cause injury one count, for which he were given a six month sentence of imprisonment, with a community corrections order of eighteen months, He was released from that sentence on 1 September.  Now I suppose it is a good demonstration, in some instances, where a person is not interested in reform. Here we are, released on the 29th of the same month, he is committing these particularly serious offences.  He has had a lengthy history.  Unlawful assault in November 2015, burglary, reckless cause injury in August 2014, Children's Court assault in May 2013 and reckless cause injury again for which he got two months YTC, also heard in the Children's Court in August of 2013.  So there is a history, certainly not of the seriousness of this charge, Mr Whelan, but unfortunately, leading up to these serious crimes.

7As I said, we then had the plea hearing on 3 November 2017.  On that day,
Mr Fisher appeared for the Director.  As was announced, Mr Perry appears today.  Mr Ginsbourg appeared on behalf of Mr O'Neill and Mr Newton appears today. Ms Cooper appeared on behalf of Mr Whelan and Ms McLure appears today. 

8On that day, Mr O'Neill also pleaded guilty to a charge under s.77 of aggravated burglary. The circumstances were the same as to the first incidence of Mr Whelan’s burglary. But as against Mr Whelan's, it is not a rolled up charge and only relates to the first entry into 54 Capon Street, East Malvern. In addition, Mr O’Neill pleaded guilty to possession of a drug of dependence, which is an offence against s.73(1)(b) of the Drugs, Poisons and Controlled Substances Act 1981 (Vic), which was some ice found on him at the time of his arrest. Mr O'Neill has no prior convictions. However, he does have one previous finding in the Children's Court of reckless cause injury, that is a finding of guilty, recorded in January of 2014.

9Both counsel, on that day, accepted that the facts as detailed in the prosecution opening, tendered as Exhibit A, are the facts upon which I am to sentence both of the prisoners.  That document is dated 3 November 2017.  As I said, it demonstrates serious offending.  I do not need to describe the offending in much more detail than is set out therein.  However, it does require some discernment to appreciate fully the respective roles of Mr Whelan and Mr O'Neill. 

10Mr O'Neill was clearly the instigator.  They had been apparently to a funeral the day before.  There was subsequently a getting together, having returned to O'Neill's address.  The next morning, apparently Mr O'Neill found that he was missing two grams of ice which was supposed to be on his table.  There then began a message investigation, if I put it that way.  He then stated on Facebook that he had armed himself with an axe, was angry and someone was going to die, referring to both the victims in this matter.  Screenshots insofar as that material were ultimately tendered, and became Exhibit B. 

11The first part of the rolled up aggravated burglary, and the aspect which relates to Mr O'Neill, occurred when Mr O'Neill, Mr Whelan, Mr Kessler, Mr Slatter and an unknown accused, drove to Andrew George's home at 54 Capon Street, Malvern East.  They believed at that stage, his brother was there.

12Mr O'Neill and Mr Kessler knocked on the front door.  At the same time,
Mr Whelan, an unknown co-accused and Slatter kicked in the back door, leaving a shoe impression of it.  They then ran through the house to find the person they were seeking to assault.  They then thereafter joined Mr O'Neill and Kessler at the front door.  They confronted Mr Andrew George.  There was subsequently a housemate who woke up, Mr Ryan Mitchell.  This is only by way of background because it does not make up any of the charges that
Mr Whelan is facing.  But Mr Whelan produced the tomahawk and raised it above his shoulder, threatening to axe Mitchell, at this point, he was dragged away by the others.

13The CCTV footage shows the original arrival at the premises was at 10.21 am, and the second arrival at 11.36.  This is of course the basis for the aggravated burglary of Mr O'Neill.  He was the instigator, as I have indicated. This instigation was drug related and was brought about by him taking the law in his own hands, wanting to punish people for what he believed to be theft in his premises and recruiting the other offenders to follow him.  It was his grievance, upon which this whole endeavour began, that is, the alleged drug theft. 

14As put to me in the plea, Mr O'Neill did not withdraw from these proceedings during the happening of the first circumstances that I have described, that is, at 54 Capon Street.  He is guilty, by way of joint enterprise, albeit that he did not enter the premises in such manner himself.  He is guilty of the aggravated burglary and of the actions carried out by his joint perpetrators, as I have described, where they smash the backdoor open and entered with the tomahawk.

15Then the parties, in search of the victim that they were after, proceeded onto 1 Blythe Street, Murrumbeena.  They arrived there at about 11.02, the owner of the house was confronted.  Fortunately at this time, something must have registered with Mr O'Neill, and I accept, given the circumstances as set out in Exhibit G and in the depositions and the matters read to the Court, that at that stage, Mr O'Neill realised what he had gotten himself into, what he had in fact planned himself and instigated himself. Fortunately, before the matters took a much more serious turn, despite being prevailed upon by Mr Whelan and Mr Slatter, Mr O’Neill refused to return to Blythe Street, and stayed at Capon Street.

16As I said, at 11.26, Mr Whelan and two others arrived back at 54 Capon Street.  They again confronted the victim Andrew George, Whelan hit him with a tomahawk several times to the head and the body.  Slatter hit him with a screwdriver and Whelan then produced a long bladed knife and proceeded to stab the victim.

17The injuries are set out in Exhibit F1 to 3, being various reports from the Victorian Institute of Forensic Medicine.  There are a considerable number of serious wounds inflicted, which are detailed in that report, from the combined attack undertaken upon Mr Andrew George.  There were fractures, stabbings and most importantly, the need for an emergency chest drain insertion and surgery because of the finding of a large right pneumothorax.

18The opinion of the specialist forensic surgeon, was that the injuries perpetrated upon Mr George, produced a life threatening internal injury to one of the organs essential to life, that is the lungs.

19There were various impacts of stabbings and trauma and assaults involving multiple blows and probable stabbings.  The force involved required multiple sharp impacts, caused the multiple stab injuries over multiple body parts.  The severity of the injuries were described, including a large pneumothorax, with a lunge collapse, as severe.  Such required a period of weeks - two months for the bone fractures to heal.  Without medical treatment to the lung, recovery would have been unlikely.

20Without initial first aid, direct pressure to the stab wounds, the medical assistance and treatment by ambulance and in hospital, the subject would have deteriorated and have been dead.  That is indicative of how serious this assault was.  It is simply by way of, no doubt, good luck of Andrew George and the skill of the surgeons, that Mr Whelan does not find himself across the road and indeed, Mr O'Neill, facing murder charges.  To demonstrate to the Court the actual injuries, tendered was Exhibit C, the photographs taken at the time, by the police.  There are two photo books, and at my insistence at the original plea, there was also filed updated photographs of the victim Mr George, dated 15 August 2017. 

21They show a person who has been subject to a significant attack.  The face scar, in particular, the one down his left cheek, is significant.  The scarring to his chin is significant.  Both of those will have to be endured by him for the rest of his life.  The scars to the back are significant, as are the arms and the scars to the chest and the thighs are also significant.  All of them give demonstration to the Court of how serious this attack was.

22In addition, the reports of the treating hospital were tendered.  They were reports from the Alfred Hospital discharge reports and first there was a statement of Dr Sue Ladia, Exhibit F1, in regard to the examination around 12.16 and the Alfred Hospital discharge report also was tendered as Exhibit F2.

23It is quite clear that this was an emergency situation faced by the hospital because of the injuries inflicted on the victim, Mr George.  To say the least, the initial photos are stark.  They always are, when they are taken very shortly after an attack like this.  But the updated photos are also stark.  This man has been severely scarred.  I accept the evidence that the trauma imposed and inflicted upon Mr George would have had an impact upon his ongoing depression.  Defence counsel in regard to Mr Whelan accepted that his client was responsible and liable for all of those injuries.

24The prosecution pointed to the seriousness of both offences insofar as Mr Whelan was concerned.  The Court discussed the principles set out by the Court of Appeal in Hogarth v R, in particular I note the comments of the Court of Appeal at paragraph 63 insofar as confrontation or aggravation burglaries are concerned, and in Hi v The Queen [2017] VSCA 315.

25The information as to the co-accused, insofar as Mr Kessler, he is awaiting a contested trial.  I cannot remember what happened to Slatter.  Mr Prosecutor, do you know?

26MR PERRY:  No, Your Honour, but I'll enquire.

27HIS HONOUR:  The informant might know. 

28MR PERRY:  He is also booked off for a contested hearing, Your Honour.

29HIS HONOUR:  As is Mr Slatter.  Thank you, Mr Prosecutor.  The pre-sentence detention served by Mr Whelan today, is there a figure now agreed?

30MS McLURE:  Yes, a figure of 406 days is agreed, Your Honour.

31HIS HONOUR:  And Mr O’Neill, prior to being bailed - is it thirty or fifty?

32MR PERRY:  Forty days, Your Honour.

33MR NEWTON:  Forty days, Your Honour.

34HIS HONOUR:  Right in the middle, forty days.  To serve a period of forty days.  There was a forensic sample order sought and I will sign both of those.  The victim impact statements were tendered, Exhibit G is the mother of the victim and Exhibit H, the statement of Mr Andrew George.  It seemed to me that his comments, in particular, the impact of this attack upon him were in no way exaggerated and it was not suggested to me by any counsel, that there was anything that was inappropriate.  Insofar as the mother's statement, there were some irrelevant matters which I agreed with counsel, and of course I do not take those into account.

35The plea conducted by Ms Cooper, on behalf of Mr Whelan, did not in any way suggest that as a result of these serious crimes, to which Mr Whelan has pleaded, there would not be imposed a period of immediate imprisonment.  There was, even though he is jointly responsible, other assaults being carried out, apparently while the knife was not used by him, albeit it was used in the attack and apparently, if one looks at the circumstances, Mr Whelan did not personally carry out the assaults that took place in the kitchen.

36References were tendered on his behalf, Exhibit W5, and they are of value.  They are firstly of his friend who is standing by him.  To use her phrase, "Is keeping the engagement ring", his sister, his aunt and his mother.  In particular, I thought that his sister's letter, as confirmed by his mother, was informative, as it was confronting.  There is an old saying, "Violence begets violence" and we have here Mr Whelan before the Court, committing the most serious crimes he's ever committed, against the background of being brought up in a very violent household.  I take into account all of those comments, and the stress and pressure of living in such a household, at a young age.

37The plea submissions of Ms Cooper were tendered as Exhibit W2.  She also provided the Court with a most useful chronology.  She referred to the time that Mr Whelan has been in custody.  She emphasised the plea of guilty at an early stage and asked the Court to accept such is demonstrative of remorse in relation to the offending and asked me to note his expressions of remorse made to both Dr Cummins and Ms Gordon.

38The circumstances at the Metropolitan Remand Centre where Mr Whelan has been subject to lockdown on many occasions were referred to, in particular, as a result of the riots in June 2015.  The references made to Dr Cummins' report, Exhibit W3, were that he was emotionally immature, that he does suffer from an adjustment disorder, with problems in regard to emotions, conduct and lack of control of himself as a result of such.

39It was certainly Dr Cummins' view that M Whelan had now obtained insight into the seriousness of these crimes and the need for him to contain his own anger.  As I say, unless he does contain his anger when he gets out, the next step across the road may not be far away.  I think realistically, Dr Cummins raised the issue that any view as to his likely rehabilitation must be guarded and there was no suggestion, nor should there be from Dr Cummins, or from counsel, that anything else but an appropriate period of imprisonment should be imposed.

40Counsel stressed the attempts, as demonstrated by the urine analysis, made by Mr Whelan since he has been in gaol to change his ways, that at least it is a beginning, as expressed of a change and it is hoped that that such continues.  He is still a relatively young man, who has expressed genuine remorse. I was asked to consider the issues of proportionality and totality and an appropriate non-parole period could be taken into account. 

41As against that of course, I have to take into account how serious these crimes are.  They were unprovoked and were part of a campaign of retribution of which Mr Whelan willingly became involved and ultimately the main instigator. Then on his own, and with the other two parties who are contesting the allegations, was party to inflicting these very serious injuries.  Both Counts 1 and 2 must be seen as counts of very high culpability.  Yes, Mr Whelan, if you would stand up please. 

42On the first charge of aggravated burglary, you will be sentenced to a period of imprisonment of seven years.  On the charge of intentionally inflicting serious injury, a period of five years and on the third count, a period of six months.  I order that two years of the sentence imposed on Charge 2 be served cumulatively upon the sentence in Charge 1, making a total effective sentence imposed upon you is a period of nine years.  I order that the period that you must serve prior to being eligible for parole is a period of seven years and the - what was the figure Mr Prosecutor?  What period of days ‑ ‑ ‑

43MS McLURE:  Four hundred and six days, Your Honour.

44HIS HONOUR:  And the 406 days of which you have served to date by way of remand, be deemed as service of this sentence and a record of that declaration, be recorded in the records of this Court.

45Mr Whelan it is important for me, and Parliament have asked me to make sure you understand the actual benefit of pleading guilty.  What effectively I have given you is a period of nine years in total, with a minimum of seven.  Had you not pleaded guilty to these very serious offences, the sentence that you would have faced would have been a period of eleven years or the minimum of nine.  It is important for you to understand the effect of your plea of guilty.  Any other matters I need to tend to with Mr Whelan?

46MR PERRY:  I take it Your Honour will make the 464 order?

47HIS HONOUR:  Yes.  I think I pronounced that did I not?  But I will.

48MR PERRY:  Thank you, Your Honour.

49HIS HONOUR:  All right.  Have I signed those?

50ASSOCIATE:  No, Your Honour.

51HIS HONOUR:  Well I'll sign those in due course.  Anything else, Ms McLure?

52McLURE:  No, Your Honour.

53HIS HONOUR:  Yes, Mr Whelan can be taken down.  Good luck Mr Whelan.  Coming then to Mr O'Neill.  This plea was conducted by Mr Ginsbourg, he was at pains to submit that the period of imprisonment already served by Mr O'Neill, should be seen as sufficient in the circumstances, that is the 40 days.

54It is accepted, as put by Mr Ginsbourg in his plea that fortunately. Mr O’Neill did not become involved in the second aspect of the aggravated burglary, so that his responsibility for the aggravated burglary, only involves the first entry to Capon Street.  Secondly, when things appeared to be getting out of hand, from that he might have even envisaged, he desisted and stayed at the other home.  That is, he did not return with the others, nor is charged with being responsible of the injuries inflicted on the victim.

55While I accept that, the fact is that he was the instigator of this aggravated burglary and he has pleaded guilty to a charge of utmost seriousness.  Such instigation was totally unwarranted, neither of these brothers were involved, as he thought.  Against that, I accept that he has pleaded guilty at the earliest opportunity.  He has already had a, what Mr Ginsbourg referred to as a "Forty days of a salutary experience".  He has not reoffended since that release and has, as I have already described, a limited prior history, is still only a young man and has the support of his family.

56Mr O’Neill has maintained regular employment, essentially part-time - well firstly with Woolworths and then as an apprentice painter and decorator in 2015.  He is in irregular work as a DJ.  He is enrolled in a diploma which will start next year.  He has sought counselling in regard to his drug problems and has also been on the CISP Program.  It is, I think, a difficult process.  As I say, he was not part of the second aspect of this aggravated burglary and is not to be sentenced in any way for that.  He is, as I said, a youthful offender.  He has pleaded at the earliest time.  It is submitted that given those salutary experiences, he is unlikely to reoffend.  But again, as was accepted by counsel, he was the instigator and the recruiter.

57In particular, his state of mind can be ascertained from the screenshots of his own Facebook.  The materials referred to while he was carrying out his Facebook demonstration, give one grave concern as to what was going on in his mind at the time.  It is, however, to his credit, that during the time of his criminality, that is the first part of the aggravated burglary, he dragged Whelan away from Mitchell and ensured that there would be no attack with the tomahawk at least, upon Mitchell.  Whelan had been, as I said, particularly aggressive with the hatchet and had to be held back.  However Mr O’Neill did go to Blythe Street.  He, as I have said, decided to stay and not return to Capon Street.  It is apparent that there was an attempt by him to contact the victim, unfortunately he did not get through.  It was submitted by counsel that one of the reasons why O’Neill stayed was to keep the other brother safe from any further violence.

58The statement of the brother, as I said, confirms the pressure that Mr O'Neill was put under.  Things were put to O’Neill, such as "Don't be a bitch", threats made to him, and called a "Pussy" and a "Bitch", because he was not getting involved.  What his state of mind was at the time, I am not quite sure, but it was described that he might have been paralysed by fear and that may well be right.  They decided not to ring the police.  The younger brother thinking that, I am told, the police coming to the scene might enflame it, and that they might be subject to brutality attacks.  Both O'Neil and the younger brother were making their way apparently back to the victim's home when they were phoned by the mother of the victim to say that the victim was on his way to hospital.

59Prior to Whelan leaving the premises, it was confirmed that O’Neill was certainly in an emotional state, that he was crying and shaking.  Clearly, despite the pressure and intimidation from his co-offenders, his offences are not - and were not further exacerbated. He did particular courses in gaol. He was, as I indicated, given bail, released to live with his parents and was subject to the CISP Program.  It is suggested that he has given up cannabis, one hopes so.  He has worked and continues to work as a night filler.  He hopes to return to study.  He is enrolled, as I said, in the diploma to begin next year.  He is dependent on his parents. A positive aspect for him, which may have had, I am told, an impact on him as the parents had a parting in the ways for some time, his parents are now back together.  He has the ongoing strong support of his parents who are here.  It was put to me that he had a difficult time, in particular, at the MRC.  He had difficulties with the cells at MRC and in particular, even worse, when he got to the cells at Heidelberg and things were not apparently that easy when he went to the Port Phillip area.

60The plea was put to me as being utilitarian and I accept that.  It demonstrates remorse and fortunately, albeit much too late, insight.  I also accept that he is an immature and a relatively young person, that he has sought to get on with his life.  He comes from a good background and that is a person the Court could take the view that he is unlikely to offend again.  That matter, I suppose, depends in particular on him not being involved in drugs. 

61The report of Pamela Matthews, forensic psychologist, was tendered.  In her diagnosis and opinion, she thought that the offence behaviour can be seen as being associated with the cannabis and ice use; given he was found with ice, that is consistent.  It was the view of Ms Matthews that that drug use plays a most significant part in his offending and the view was that there should be a period of supervision, whereby he is monitored by random urine screens.  Clearly, it appears, for all the reasons which make up his psyche, he is a person who should not be anywhere near drugs, much less ice. 

62There is no suggestion that there is any difficulties of Mr O’Neill managing a sentence.  The concern expressed by Ms Matthews is, given his age, that he is no longer capable of getting YJC, that there may be some issues in an adult environment.  There is no doubt that he suffers from some form of social anxiety and needs some form of treatment.

63As I said, a community corrections order was sought by way of submission, given his youth and all the other factors which would avoid further immediate period in gaol.  The prosecutor submitted the issue is one of general deterrence, given the serious nature of this crime, for which the Parliament has set the maximum penalty of 25 years, and is classic, confrontational aggravation that is spoken about in Hogarth.

64The prosecutor pointed out that indeed, subsequent to these events, Mr O'Neill had wiped his phone.  He referred to his actions, as I spoke about, insofar that were recorded on his own iPhone.  He submitted that while the relative youthfulness of Mr O'Neill should limit the sentence in the case, the issues as to seriousness of the offence cannot be overlooked and the fact was, he was the instigator and recruiter and he did not withdraw before the aggravated burglary happened, but to his credit, did ultimately withdraw.

65As I said, this is not easy.  No one likes to sentence a young man to gaol, however, where the young man commits offences of this type, there is unfortunately no alternative.  I do not accept the plea put on behalf of Mr O'Neill that the 40 days is sufficient and I find, there should be a further period of immediate imprisonment.  Insofar as the community corrections order is concerned, as was indicated and was exhibited as Exhibit K, the Court received a report which was positive, dated 6 November, and I thank Ms Radiwonic for preparing that report.

66The notation of the acceptance of Mr O'Neill of the need for such assistance, the recommendation made that there be community work involved, treatment rehabilitation by way of drugs and mental health, programs to reduce reoffending and that there be supervision.  It was noted, the successful completion of the CISP Program that I have referred to, while he has been on bail and the change in his life as I have already described.  I take into account all of those matters.

67Yes, stand up please Mr O'Neill.  As I have said, it is my view, given the seriousness of the crime that you committed, the manner in which it was carried out, albeit limited, insofar as your role is concerned and it being not to the extent that Mr Whelan has pleaded guilty to, however, its seriousness is such that I could not countenance the period of immediate imprisonment being only 40 days.  It seems to me the community would be outraged as to such a sentence.

68I do, however, accept that you are a different person to sentence than
Mr Whelan.  You have no convictions.  You have one Children's Court plea of guilty, a finding of guilty for one offence and that is all.  You showed fortunately on the night, that you had woken up at some stage to what you had instigated, so that your aggravated burglary is limited to that extent.

69However, that does not excuse the circumstances that you were responsible for, which you jointly carried out.  Therefore I sentence you to a combined period of imprisonment and a community corrections order.  You will have to consent to enter into the community corrections order.  The period that I have in mind and propose to sentence, Mr Newton, is a period of one year's imprisonment, which obviously the 40 days will be taken into account and four years on a community corrections order.  I would impose all of the conditions, Mr Newton, that were proposed.  I have given him a further three months for the possession and that would be ordered to be concurrent with the one year and I will make the 6AAA and ask if that is accepted.  Will I stand down or ‑ ‑ ‑

70MR NEWTON:  Thank you, Your Honour, I'll just approach the dock if I may?  Your Honour, I've spoken with my client.  He agrees to the order and I'd just indicate he's ‑ ‑ ‑

71HIS HONOUR:  Not that he's in a particular position to do otherwise, I understand that, but he does have to accept ‑ ‑ ‑

72MR NEWTON:  No, I just - of course - formally and he understands that.  He's shaking a little at the moment, Your Honour and he's ‑ ‑ ‑

73HIS HONOUR:  Yes, well no one likes the idea of gaol, especially when you've been there.

74MR NEWTON:  Well and in particular, he's calling for immediate protection, Your Honour.

75HIS HONOUR:  Yes, we'll make those orders.

76MR NEWTON:  Yes, that is a matter of serious concern.

77HIS HONOUR:  Yes.

78MR NEWTON:  Particularly in relation to - well I'll keep it general, but he needs to be kept in a cell by himself.

79HIS HONOUR:  Well it's important that you make it as clear as you can, so that the prison officers ‑ ‑ ‑

80MR NEWTON:  Well to be very clear, and I've indicated to the prison officers, he's not to be put in the same cell as the other co-accused - the co-offender, Your Honour.

81HIS HONOUR:  Yes.  Well we are mentioning that in particular with regard to Mr Whelan Officer, that there are issues of concerns and if you make sure they are mentioned because they will be put on the record of sentence.

82MR NEWTON:  I'm grateful for that, Your Honour.  And also in relation to custody management issues ‑ ‑ ‑

83HIS HONOUR:  The issue of his asthma is it?

84MR NEWTON:  Yes.  We have the scripts and medications for his asthma.  I appreciate that's not a matter that Your Honour has ‑ ‑ ‑

85HIS HONOUR:  No, but we'll note that on the record as well.

86MR NEWTON:  I would appreciate the patient ‑ ‑ ‑

87HIS HONOUR:  ‑ ‑ ‑ and you make sure you get it down to the - well the officer will probably take it here will you or not?  Do they take it down the stairs?

88PRISON OFFICER:  No, so he will see a doctor at the prison.

89MR NEWTON:  Yes.

90PRISON OFFICER:  And they have to assess him and then he'll be medicated.

91PRISON OFFICER:  Yes.  So as I understand it, they're not prepared to take any medications.

92PRISON OFFICER:  Do you have it now?

93OFFENDER:  (Indistinct words).

94PRISON OFFICER:  You've got it (indistinct words).

95MR NEWTON:  Yes, all right.  So he's permitted the inhaler.  We have the scripts in relation to the four medications.

96HIS HONOUR:  All right, well perhaps you can work it out downstairs after.

97MR NEWTON:  Yes.  I'll hand the patient health summary, Your Honour, for the file.  It's dated 16 November and it's printed by the ‑ ‑ ‑

98HIS HONOUR:  Perhaps if I have a look at that and we'll put it on the order.

99MR NEWTON:  I'm grateful, Your Honour.

100HIS HONOUR:  So there's concerns as to his safety that he shouldn't be located in the same - what are they called?  Sections are they or - section of the gaol.

101PRISON OFFICER:  Yep.

102HIS HONOUR:  What do they call them?

103OFFENDER:  Unit sir.

104HIS HONOUR:  Unit.

105MR PERRY:  Unit, Your Honour.

106HIS HONOUR:  Same unit as Mr Whelan.

107ASSOCIATE:  Yes, Your Honour.

108HIS HONOUR:  And also that he has issues as to asthma.

109ASSOCIATE:  Yes, Your Honour.

110HIS HONOUR:  And needs current medication and should be seen by the prison doctor as soon as possible.

111MR NEWTON:  Yes and Your Honour in relation to the same unit, I would, in this particular case, request you to say "Or indeed gaol" if that's possible.

112HIS HONOUR:  Yes, well ultimately we can only request.  In the end these matters are determined by the authorities, but I just raise the risk.

113MR PERRY:  Probably a matter for the prisons classification committee, Your Honour.

114HIS HONOUR:  Yes.

115MR PERRY:  But a recommendation that they be kept apart
to ‑ ‑ ‑

116HER HONOUR:  Yes.

117MR PERRY:  ‑ ‑ ‑ would be a matter that they would have regard to.

118HIS HONOUR:  I'll certainly put that on Mr Perry.

119MR PERRY:  Thank you.

120MR NEWTON:  Grateful, Your Honour.

121HIS HONOUR:  Mr O'Neill, it does not give me any joy to sentence a young man like you.  You have had your positive CISP reports.  You realise the effect of drugs and you have gone ahead to get counselling.  You have got a good character reference and you have got potential and you have got family supporting you.  All the things you no doubt wish, in reflection, had you taken advantage of before you committed this crime. But behaviour of that sort simply cannot be countenanced. It does not give me any joy to put you in gaol for a year, but you have got to realise that drugs and you do not mix.  You are just unfortunately, another member of the community who I see all the time, whose life has been grossly impacted by drugs.

122At least your background and your upbringing was enough to save you from getting involved in the more serious aspects of the aggression and the injuries that were inflicted on this poor victim.  But your behaviour is such that, as I say, there was no alternative.  It might be said all of those matters have been taken into your account and we hope, once you do the year of gaol and the completion of the recommendations - and I better clarify those I suppose hadn't I?  Precisely the terms - they will be as set out in the report.  Madam Associate, do I have to detail those for you?

123ASSOCIATE:  I've just had a quick look Judge.  So it says - it says ‑ ‑ ‑

124HIS HONOUR:  Does it set a number of hours?  It doesn't does it?

125ASSOCIATE:  No it doesn't, which was what I was going to ask Judge.

126HIS HONOUR:  Sorry?

127ASSOCIATE:  I was going to ask that.  It says "Community work, drug assessment and treatment, mental health treatment".

128HIS HONOUR:  I think 200 hours we'll make for the ‑ ‑ ‑

129ASSOCIATE:  Two hundred.  Yes, Your Honour.

130HIS HONOUR:  That should be enough over the period of what's imposed.  I just can't put my hand on it for the moment.

131ASSOCIATE:  I can print you one, Your Honour.

132HIS HONOUR:  No, no.

133MR NEWTON:  I have a copy here, Your Honour, of which I have not blemished.

134HIS HONOUR:  Each of those conditions imposed would be - wait a minute.  Here it is, yes.  The 48C community work, I will make it 200 hours.  This is after you do the year, Mr O'Neill.  Drug and treatment rehabilitation with testing.  Mental health assistance, 48D3, 48DF.  Programs to reduce offending, supervision, and the period will be four years, after you serve it.  Can I just - I better check that.  This has been amended Mr Prosecutor has it not?

135MR PERRY:  I think it has, Your Honour.

136HIS HONOUR: Let us just check that I am still within the category. Sentencing Act, Sentencing Act, here is it? It's out of order here, Sentencing Act. Yes, the government recently amended this didn't they? Just remind me. Take a seat Mr O'Neill.

137MR PERRY:  I must apologise, Your Honour, I don't have the Act with me in Court.

138HIS HONOUR:  I just want to make sure.  "Where sentencing offender" - it says "In respect of one or more offence, (indistinct) a community corrections - in addition to imposing a sentence of imprisonment, sum of all terms of imprisonment served".  Yes, it might be- yes, here it is.  (Indistinct words).  Let's get this right.   "(Indistinct words) offender in respect of two or more offences which is" - they are not separate, "That exceeds more than five years".  So I have not done that.  How long - 44 restricts it two years does it?

139MR PERRY:  It's 44(1), Your Honour.

140HIS HONOUR:  Yes.

141MR NEWTON:  Yes 44(1). 

142HIS HONOUR:  Yes.

143MR PERRY:  The total for allowance of PSD is less than two years.

144HIS HONOUR:  Yes, so we are fine.

145MR PERRY:  You should be all right.  I think we are okay.

146HIS HONOUR: Yes. Hard to keep up with the government (indistinct) Sentencing Act these days.

147MR PERRY:  Put not your faith in (indistinct), Your Honour.

148HIS HONOUR:  All right, Mr O'Neill, given the family support you have, I'm sure that once you serve this sentence, you will come out and wake up to yourself and get on with your life and I hope you do.  So good luck.  Yes, take the prisoner away.

149MR NEWTON:  Your Honour, reckoned PSD at 40 days, Your Honour?

150HIS HONOUR:  Yes.

151MR NEWTON:  Yes, I'm grateful.

152ASSOCIATE:  Mr O’Neill needs to sign the CCO, Judge.

153HIS HONOUR:  Wait on, wait on.  You have got to sign the CCO, I apologise.

154ASSOCIATE:  Would you like to stand down and I can give it to counsel?

155MR PERRY:  And probably a 6AAA, Your Honour?

156HIS HONOUR:  Yes.

157ASSOCIATE:  And a 6AAA, Your Honour.

158HIS HONOUR:  He doesn't need to sign the 6AAA?

159ASSOCIATE:  No, Your Honour, declaring ‑ ‑ ‑

160MR PERRY:  No, but I'd invite Your Honour to make such a ‑ ‑ ‑

161HIS HONOUR:  I did - didn't I?

162MR PERRY:  No, Your Honour.

163HIS HONOUR:  Yes, well all I can say ‑ ‑ ‑

164MR PERRY:  We'll have it in your notes, but hadn't announced it.

165HIS HONOUR:  I don't know what I would've done, but I certainly would've given him a combined order.  It's about the best I can do for Parliament.

166MR PERRY:  As Your Honour pleases.

167(Short adjournment.)

168HIS HONOUR:  Yes, that has been signed.  I think we have done everything we need to do Mr Perry?

169MR PERRY:  Yes, Your Honour.

170HIS HONOUR:  Yes.  Thank you Mr Newton.  Good luck Mr O'Neill.

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