R v Binse
[2014] VSC 253
•23 May 2014
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2013 0037
S CR 2014 0025
| THE QUEEN | |
| v | |
| CHRISTOPHER BINSE | Accused |
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JUDGE: | T FORREST J |
WHERE HELD: | Melbourne |
DATES OF HEARING: | 28, 29 and 30 April 2014 |
DATE OF SENTENCE: | 23 May 2014 |
CASE MAY BE CITED AS: | R v Binse |
MEDIUM NEUTRAL CITATION: | [2014] VSC 253 |
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CRIMINAL LAW – Sentence – Prohibited person possess firearm – Theft – Armed Robbery – Prohibited person use a firearm – Reckless conduct endangering serious injury – Long history of substantially similar criminal offending – Discount for onerous conditions of incarceration – No rule of law whereby offender who is responsible for the onerousness of the conditions is not entitled to sentencing discount – Pleas of guilty – Evidence of some remorse – Specific deterrence of significant weight – Highly desirable that prior to release the offender be subject to the support and strict supervision of the parole board for a considerable period.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P. Chadwick QC with Ms J. Warren | Office of Public Prosecutions |
| For the Accused | Mr S. Holt SC | Victoria Legal Aid |
HIS HONOUR:
Mr Binse, you have pleaded guilty to the following offences:
INDICTMENT NO 1 (C11434997.3)MAXIMUM
Charge No 7 Prohibited person possess firearm 10 yrs 8 Theft 10 yrs
INDICTMENT NO 2 (C1143997.4)MAXIMUM
Charge No 1 Armed Robbery 25 yrs 2 Prohibited person use a firearm (rolled up count) 10 yrs 3 Reckless conduct that may place another person in danger of serious injury 5 yrs 4 Prohibited person possessing a firearm (rolled up count) 10 yrs
You were acquitted after a trial of the first six charges on Indictment 1.
It is necessary to say something of your background so that the context of your offending may be properly understood. You have spent 28 of the last 32 years in some form of custody. Your father taught you to steal. You were a ward of the state at 13, accommodated at Baltara Boys Home. By 14, you were detained at Turana Youth Training Centre and by 17 you were transferred to Pentridge while undergoing a Children’s Court sentence. By 18, you had been classified as a management unit prisoner and were imprisoned in the notorious H Division of that prison. You were transferred out to Beechworth after the suicide of another young prisoner held in that Division.
Since that time you have spent comparatively little time in the community. In the 1980s, once you were eligible for adult court, you committed essentially street offences that escalated in seriousness. In 1993, you were convicted of four counts of armed robbery, receiving in total an aggregate sentence of seven years six months with a minimum of five years. These armed robberies were committed on banks and, with one exception, during trading hours. The learned sentencing judge noted that by then you had accumulated 96 previous convictions over 27 court appearances. You were then just 24 years old. Judge Lazarus expressed the hope that you were ready to retire from your career choice as an armed robber. Even then 21 years ago his Honour considered you to be institutionalised. He characterised your offending as “about as bad as bank robberies can be” although he noted a certain politeness and decency in your approach.
Shortly after that conviction you were convicted of being a felon in possession of a pistol and other offences including making a threat to kill.
You had been remanded in custody on the armed robbery charges. In August 1992, whilst on remand, you were stabbed by a fellow prisoner and taken to St Vincent’s Hospital. After emergency surgery you escaped and fled to New South Wales. You there committed two more armed robberies, were arrested and remanded to Parramatta gaol. Again, you escaped and returned to Victoria where you were arrested by a SOG team near Daylesford. You sustained injuries in that arrest. After commencing a hunger strike you were brought before Judge Lazarus and sentenced to the term I mentioned a few moments ago.
During this sentence, you attempted to escape from the Acacia Unit. In 1996, you were extradited to New South Wales to face the 1992 armed robbery charges that I have referred to. In December 1998, you were sentenced for these armed robberies, kidnapping and other offences. The full details of your sentence are not clear to me but you were released from prison in February 2005. You apparently served your full term and thus were not subject to parole supervision when you were released. You had served 13 years straight in various prisons by the time you were released.
Your time in custody in the New South Wales prison system was not easy and you made several public statements about prison conditions at the Goulburn gaol.
You remained in the community for about 13 months before being arrested in January 2006. You ultimately were convicted of being a prohibited person possessing a firearm, two counts of common law assault and possession of a drug of dependence. You were sentenced to an effective four year maximum with a minimum of two years. I am told you served your complete sentence after an unsuccessful period on parole and so once again you were released into the community with no authoritative supervision.
Whilst on remand for the 2006 offences you were seriously assaulted. You believed your attackers were procured by a particular prisoner to carry out this attack. I shall call this man ‘Prisoner X’. This has some relevance to your current offending.
After serving a good deal of this sentence in management units you were released on parole in April 2008. During the time that you were on parole you became increasingly concerned that your safety was threatened by associates of Prisoner X. Your parole was revoked in September 2008 and were you apprehended in December of that year. You were in possession at that time of cocaine, four prohibited weapons, an unregistered handgun (a pen gun) and various false identity documents. You returned to prison and after further threats passing from you and to you, you again were detained in a management unit. In October 2010, the possession charges I have just referred to were finally dealt with and you received a further 12-month prison sentence. You were released from custody on 28 September 2011.
I turn now to the offending.
Upon your release you temporarily lived with your former partner Kylie Miller and your daughter Charlize. I accept that you became concerned for their welfare. You have a close relationship with your daughter. You believed that Prisoner X (now at large) represented a threat to their safety and yours. On 16 October 2011, you were assaulted by a number of men. You sustained head injuries but discharged yourself from hospital. In November 2011, an associate of yours was shot and very seriously wounded.
In an interview with police in May 2012, you told them:
· The day you were released you were reliably informed Prisoner X wanted to kill you and others, including the associate I have just mentioned.
· You surveilled Prisoner X for a time.
· After your associate was shot you went to ground. This involved sleeping in your car and staying on the move.
· Prisoner X had been arrested on firearms charges and remanded in custody for a time. After his release on bail other people became increasingly worried that they would be next.
· In this context, you commenced using ice.
· You determined to confront Prisoner X. On 9 January 2012, you drove to an address in Seaford in your black Land Rover. You parked the four-wheel-drive and attempted to steal a nearby vehicle. The attempt failed and you left the area leaving the Land Rover behind.
Seaford
Police were called and the Land Rover was searched. A loaded .22 calibre Ruger brand semi-automatic handgun fitted with a silencer was located beneath the driver’s seat. You admitted to this offence in your May 2012 police interview. This offence is part of Charge 4 of the second indictment. Charge 4 is a rolled up count involving the 9 January offence and four other examples of this offence that occurred on 22 May 2012.
Westside Hotel
On 19 March 2012, at about 10.15am, you drove to the Laverton Market. You entered via a rear gate and prepared to commit an armed robbery at the neraby Westside Hotel. You unloaded an off-road motorcycle from your white van and strapped a sawn-off single barrel pump action shotgun to the side of that motorcycle. You had previously cut a hole in a cyclone wire fence at the western perimeter of the hotel grounds to gain access to a small walkway that runs between the hotel and an adjacent factory. You had also previously drilled 14 small holes in the high wooden paling fence that separated the factory from the hotel car park. You had already positioned a ladder against the fence and a deck chair nearby. You therefore had a view of the rear car park of the hotel from behind the fence, and the means to get over the fence if necessary. You were not visible to those in the car park unless you climbed the ladder.
At 10.37am, you rode the motorcycle to the small hole in the cyclone wire fence. You took the shotgun and moved to your prepared site behind the paling fence. At about 11.00am, an Armaguard van entered the rear car park. Guards John Toothill and Matthew Shields left the van and entered the hotel. They collected $235,090, which was placed into a large blue Armaguard bag. They left the rear of the hotel and walked towards their van. As they did you used the ladder to elevate your head and shoulders above the paling fence. You were wearing a hood, dust mask and sunglasses. You pointed the shotgun at Mr Toothill, pumped it and demanded that he throw the bag over the fence. Mr Toothill endeavoured to comply but the bag failed to clear the fence and fell to the ground in the car park. You then demanded that the two guards lie face down on the ground. You jumped the fence, approached Mr Toothill, pointed the shotgun at him and took his service revolver from its holster. You demanded Mr Shields surrender his revolver, which he did. You climbed back over the fence with the money bag and the two revolvers and then you departed the scene on your motorcycle.
You rode to the rear of the Laverton Market, dumped your motorcycle and shotgun in a shallow part of a nearby dam, changed clothes and drove away in the white van. This offence is charge 1 on the second indictment (armed robbery). I am satisfied that this must have been a terrifying experience for the Armaguard guards and the elderly lady who observed your activities. Very little of the proceeds of the robbery have been recovered.
Atak Storage
During this period after the armed robbery you were identified as a suspect and your movements were surveilled. You were observed to be regularly attending an Atak storage facility in Ballarat Road, Albion. You had earlier rented three shipping containers, although for present purposes I accept that you controlled only the property stored in one of those containers (No.8).
On 22 and 22 May 2012, police searched the Atak facility. The following items were located and seized:
· A .357 calibre Sturm Ruger revolver identified as stolen from Mr Shields during the Westside Hotel armed robbery (second indictment – charge 4 (rolled up)).
· A .22 Long Rifle calibre Sturm Ruger rifle. This rifle was cut down and loaded, had a silencer attached and had been modified to fire in full automatic mode. (second indictment – charge 4 (rolled up)).
· A 12 gauge Sportco brand Model 81 bolt action repeating shotgun. Both butt stock and barrel were cut down. Loaded. (second indictment – charge 4 (rolled up)).
· A .45 calibre Auto Ordinance Corporation brand Thompson model 1928-A1 sub-machine gun. (second indictment – charge 4 (rolled up)).
These items were all seized from container No. 8. Ammunition for all these firearms was also found in that container.
La Porchetta
On 20 May 2012, two police officers in an unmarked vehicle observed you riding your Honda motorcycle. This motorcycle was fitted out with distinctive Repsol Racing Team signage. After a relatively minor traffic incident the police pursued a motorcycle that had been travelling in company with you. About 90 minutes later two other police officers saw your motorcycle parked outside La Porchetta pizza restaurant. They contacted the two original officers and the four of them assembled on the footpath outside the restaurant. At about this time you emerged from inside the restaurant and walked towards your motorcycle. You saw four men in the vicinity of your Honda. I accept that at this stage you did not realise that these men were police officers. This is the only sensible interpretation of the jury verdicts in your criminal trial. You turned around and walked briskly back into the restaurant.
Constables Kassis, Searle and Abson followed you in, effectively in single file. You walked towards the rear of the quite busy restaurant. Kassis caught you and placed his arm on your shoulder. You produced a loaded silver-coloured revolver which had been taken from Mr Toothill at the Westside Hotel on 19 March 2012. Your possession of this weapon as a prohibited person is charge 7 on the first indictment. Mr Kassis backed away, dropping his police radio. You then took possession of it. You then hurriedly left. Some time later, you retreated to your home at 46 Sterling Drive, Keilor East.
The Siege
At 6.40am on 21 May 2012, members of the Victoria Police Special Operations Group attended outside your Sterling Drive home. Your partner, Loretta Collier, was present with you. You were requested to exit your property and peacefully surrender. You did not respond and attempted to barricade yourself in the house. You remained there for the next 44 hours. Throughout the course of the siege numerous unsuccessful attempts were made to persuade you to surrender. You were armed with the silver revolver that some hours earlier you had produced at La Porchetta. You discharged that firearm at the following times and in the following circumstances:
21 May 2012
(a)at 7.38am an SOG armoured vehicle was positioned in the driveway adjacent to the house. Two SOG operators were seated within it. You fired a shot which ricocheted off the front of the vehicle;
(b)at 7.48am you fired two further shots at the SOG vehicle. Both shots missed the vehicle and passed through the wooden fence and into the neighbouring front yard;
(c)at 3.38pm, you fired a further shot that ricocheted off the front of the vehicle. Again, two SOG operators were in the vehicle;
(d)at 3.48pm, you fired a further shot at the SOG vehicle. The bullet struck the driver’s door window. The two occupants remained in the vehicle during this period;
I should observe that the SOG vehicle was only intermittently positioned adjacent to the house but it was in that position when the above shots were fired.
Tuesday 22 May 2012
(e)at 12.51am, you emerged armed from the house wearing a white ballistic vest. Your legs were bare and you wore no head protection. A police robot was positioned in the driveway. You pointed your firearm at the occupied SOG vehicle which was positioned towards the footpath area. You then turned and fired a shot at the robot. You again pointed your firearm at the SOG vehicle, then reached down, flipped the robot over and then returned into the house.
All of the shots referred to in sub-paras (a)-(e) are captured by second indictment charge 2, which is a rolled up charge that alleges that you, as a prohibited person, used a firearm.
At approximately 10.10am, you fired three shots from the back door of your house towards the rear fence of the property. This fence is adjacent to Keilor Park Drive. Traffic was heavy at this time. One of the shots penetrated a fence, continued through a further barrier fence and travelled towards but not onto Keilor Park Drive. This constitutes second indictment charge 3 (reckless conduct endangering others of serious injury).
Loretta Collier left the house at 7.27pm on 22 May. I accept that you did not intentionally hold Ms Collier against her will. There was, however, a practical impediment to her departure in the makeshift barricades that you had erected. Further, she was legitimately concerned that her departure may trigger you to respond unpredictably given your increasing state of agitation.
At approximately 2.00am, the SOG took action to end the stand-off. After a final call for you to surrender, they fired tear gas into the house. You emerged a few minutes later wearing a ballistics vest and a blue rain jacket. You were armed with the silver revolver. You complied with a request to drop your weapon. When you bent over to pick it up non-lethal bean bag rounds were fired at you. You picked up the weapon and dropped it when you were struck with more bean bag rounds. You fell to the ground. You were arrested and interviewed at 10.30am on 23 May 2012. I observed during your plea that I consider the SOG members acted with moderation and restraint and I commend their actions.
To this stage I have done no more than set out a bald narrative of your offending and the context in which it occurred. I accept that from the time you were released in September 2011 you were genuinely fearful for your life and the lives of your loved ones. Whilst this may explain some of your antisocial conduct during your eight months at large it cannot justify or excuse it. You accumulated an arsenal at the Atak facility. For a prohibited person to possess one firearm is serious enough. For a prohibited person to possess a loaded pistol, a loaded cut down rifle, a loaded cut down pump action shotgun and a Thompson submachine gun makes this rolled up charge a grave example of its kind.
Mr Holt S.C., in helpful submissions on your behalf, put his instructions from the bar table that you acquired a bag of guns to protect yourself and your daughter from those you believed responsible for shooting two of your associates. There is no evidence as to how or why you came into possession of these guns. I have indicated that I accept that throughout your time at large in 2011 and 2012 you feared for your loved ones’ safety. I accept this as a likely explanation for your possession of three of the four impugned firearms. It does little to reduce your moral culpability in my view. The offence is aimed at public safety and designed to discourage criminals convicted of serious offences from carrying or possessing a weapon.
I regard the armed robbery as a very serious example of this sort of offence. It was planned and executed with precision. Your counsel observed that, with the proliferation of modern investigative tools (including CCTV), this type of armed robbery is not common these days. Whilst that may be so when such crimes are committed they cause terror to those immediately involved and apprehension amongst the wider community. I consider that a purpose of this sentencing exercise is to protect that wider community from you Mr Binse. I shall return to this issue shortly.
Insofar as the La Porchetta offences are concerned, they provide the immediate context for the subsequent siege, however overall I consider they add little to your objective criminality. As I have said, you were acquitted at trial of six of the eight counts on this indictment. You pleaded guilty to theft and being a prohibited person in possession of a firearm. The latter offence, when viewed in isolation, is serious enough; however in my view it adds relatively little to the overall criminal culpability that attaches to counts two and four on the second indictment wherein you admit 10 other instances of either possessing or using a firearm whilst a prohibited person.
The circumstances of the offending during the siege need no further elaboration. Counts two and three of the second indictment involve, in my view, further, very serious, criminal misconduct. As a prohibited person, over a period of nearly two days you repeatedly fired a revolver at or near police officers who were simply doing their job. You are not charged with any conduct related offence alleged to have been committed against any police officer during the siege and I cannot sentence you as if you were. I accept that your repeated use of a firearm caused fear or apprehension to those occupants of the SOG vehicle when it was struck by fire. In particular, I refer to the officer who was seated adjacent to the window when it was struck by the shot fired by you at 3.41pm on 21 May. I regard the manner in which you used the firearm as an aggravating feature of this offence.
Other sentencing considerations
I have read Victim Impact Statements. A number of police officers set out the ways in which their participation in the siege has significantly impacted upon their emotional state. I take these statements into account.
Prior criminal record
You have four prior Victorian convictions for armed robbery that I have referred to earlier in these remarks. You have two further similar convictions in New South Wales. You have other highly relevant prior convictions particularly in relation to the possession of firearms. In 1993, you were convicted as a felon in possession of a firearm. In 2006, you received three years’ imprisonment for being a prohibited person in possession of a firearm and in 2010 you were again sentenced to imprisonment for carrying a prohibited weapon without approval or exemption and possession of a general category handgun. You have an old prior conviction (1990) for conduct endangering life and numerous old prior convictions for assault-related offences. You have various possession of drugs convictions incurred in recent times. By my reckoning you have six convictions for escape, attempted escape or similar. This has relevance to your current custodial arrangements.
Onerous nature of your imprisonment
You have been remanded since your arrest. You have been assessed as a high security risk.
An affidavit from Brendan Money, Assistant Commissioner of Corrections Victoria, was tendered in evidence. Since your arrest you have been accommodated mainly in the Acacia Management Unit at Barwon Prison. You have been temporarily accommodated in other units. Once this sentence is passed you will be returned to Acacia Unit.
Acacia Unit provides you with a single bed cell. You are permitted access to an exercise yard for between one and three hours a day. Beyond that, you are secured in your cell. I am told, and accept, that it has been determined that you are a long term management prisoner. There is a real prospect that you will be required to serve all or a large proportion of what must be a lengthy prison sentence in isolation cell confinement for up to 23 hours a day. Mr Holt, on your behalf, argued that this factor ought weigh heavily in favour of reducing the overall sentence I must impose. Mr Chadwick, who prosecuted, contended that whilst you were entitled to some benefit arising from this factor that benefit ought be qualified or limited to reflect that, in many ways, you are the architect of your own misfortune. I have been referred to a number of cases in which responsibility for a prisoner’s placement in a management unit has been considered in the context of whether a sentencing benefit for same ought be allowed. In my view, there is no rule which says that where a prisoner’s conduct results in them being placed in a restrictive prison environment that fact disentitles them to a sentencing benefit arising from that onerous custodial environment.[1]
[1]See Wales at paras [8]-[9]; [44] – [51].
It is clear that your current prison status is the product of a combination of factors. Mr Money’s affidavit sets them out. You are assessed as a high security risk as a result of the following combination of factors:
(a)the circumstances of the events leading to your arrest;
(b)you have a significant prior prison history, including placement in management units;
(c)you have made several well planned escapes and escape attempts in Victoria and New South Wales;
(d)there are placement concerns relating to your interaction with other prisoners. In short, it is considered that you are at risk of harm and at risk of causing harm if allowed to interact with other prisoners. I quote “his volatile and threatening behaviour presents real risks to prison security”;
(e)whilst Mr Money does not refer to it as a factor relevant to your management unit status it is clear from his affidavit that there have been significant concerns about your mental health during your time in management. You have been placed in a Muirhead cell as a result of psychiatric concerns, have been transferred twice to the Acute Assessment Unit at MAP due to those concerns and are considered at risk of self-harm.
I am satisfied that your current prison accommodation is largely the product of your conduct over your time in the prison system. For reasons that I shall refer to shortly, I consider that you are thoroughly institutionalised and suffering from a range of psychological consequences that impact on your capacity to deal with unrestricted prison life, or for that matter the outside world.
A report from Dr Danny Sullivan was tendered on your behalf. Ms Pamela Matthews, Forensic Psychologist, gave evidence on your behalf. Two reports from her were tendered – one from 2010 and one recent. Both Dr Sullivan and Ms Matthews diagnose a form of mixed personality disorder with antisocial and narcissistic traits. Both also commented on the impact upon you of your past and future incarceration:
· “Mr Binse has been so long incarcerated that his emotional world is markedly altered.” (Dr Sullivan at [68])
· “He reports that innocuous events trigger emotional responses including anxiety or distress…he is preoccupied with threat to him or those close to him and that he has repeated recollections of traumatic events that have happened to him.” (Dr Sullivan at [68])
· “Although he might meet the diagnostic criteria for post-traumatic stress disorder, it is perhaps more appropriate to regard his condition as an adaptation to prolonged incarceration in austere circumstances, as well as a number of attacks on him associated with prison life and his lifestyle outside prison.” (Dr Sullivan at [69])
· “Mr Binse had on occasion experienced brief episodes of behavioural disturbance, disordered thinking, persecutory and grandiose beliefs, reports of special powers and auditory hallucinations. Most recently these have occurred in 2012 and 2013. On these occasions these symptoms have resolved spontaneously without antipsychotic medication and the opinion of reviewing psychiatrists has been that these did not reflect psychotic episodes…It is likely that these reflected decompensation in the face of stressors.” (Dr Sullivan at [70])
· “In the writer’s view, Mr Binse’s personality, his coping skills or lack thereof, his mental state fluctuations, chronic post-trauma symptomology and aberrant behaviours are all a product of long periods in restrictive custody, which over the course of a potentially lengthy sentence can only be further exacerbated by more custodial time in similar, very onerous environments.” (Ms Matthews’ 2014 report pg 13.6ff)
Although I consider you are largely the architect of your current prisoner status, as I have said there is no rule which necessarily denies a prisoner a sentencing benefit arising from being placed in a restrictive custodial environment. Each case will turn on its facts. In my view, your likely future accommodation will be so restrictive and of such a length that it would be inhumane to deny you some sentencing benefit arising from these factors.
I accept the opinions from Dr Sullivan and Ms Matthews that I have recently referred to. I am positively satisfied that there is a serious risk that future imprisonment in the restricted custodial environment that I have explained will have a significant adverse effect on your mental health.
I have considered together the fact of your current and likely future custodial circumstances and the risk that those circumstances will impact upon your mental health. I have concluded that the combination of these two factors ought mitigate the punishment that I will impose.
I am not persuaded that there is any other basis upon which your mental state ought influence the sentence on any of the charges.
Other sentencing considerations
Pleas of guilty
You are entitled to a sentencing benefit on all four charges on the second indictment. You have saved the community the time and expense of trials that may have taken up to six weeks of court time. Witnesses, particularly the victims of the armed robbery and the siege, have been spared the ordeal of cross-examination at trial. The pleas were entered late after a contested committal and a significant period of negotiation. The fact remains however that there has been a significant utilitarian benefit to the community and you are entitled to benefit from that.
Remorse
Your counsel urged me to conclude that you are remorseful for your offending. He referred to letters of apology that you asked to be sent to some of the victims of the armed robbery and the siege. He also referred to your pleas of guilty. I am unable to conclude that you are genuinely remorseful from this material. The pleas were late and heavily negotiated and the letters of apology, although written before the committal strike me as self-serving. I remarked to your counsel that I thought there were some expressions of remorse that went beyond self-pity in the record of interview. I adhere to this view. You were interviewed about 8 hours after your arrest. I have watched the interview in its entirety. Although your answers were selective and at times self-serving, I was left with the overall impression that you regretted your recent criminal conduct and its impact on its victims. I shall treat this as some evidence of remorse.
Deterrence
There is obviously a powerful need to deter you from re-offending. There is an equally powerful need to deter others from similar outrageously unlawful conduct. These factors must be given significant weight in the sentencing exercise.
Protection of the community
Your prior record and the gravity of your current offending necessarily leads me to conclude that the community needs to be protected from you. The community’s interests will be protected by your incapacitation for a lengthy period. Given the powerful need for specific and general deterrence I have not extended the overall sentence to give effect the sentencing purpose of community protection.
There is another aspect to community protection. It is open to me not to impose a minimum sentence before parole eligibility. Your last three sentences have been served in full. Despite this, I consider that it would be incompatible with the community’s interests to impose a straight term of imprisonment with no minimum. It is highly desirable that, upon your eventual release, you be subject to the support and strict supervision of the parole board for a considerable period. In my view, community protection requires this. If you are simply released after serving your full term with no controls or supervision then the public interest suffers.
Rehabilitation
For the reasons that I have expressed I consider your prospects for rehabilitation are poor. My sincere hope is that you will rehabilitate yourself to finally become a functioning member of the wider community. For that to occur you will need support and self-discipline. To date, you have not demonstrated much of this latter quality.
Totality
I have endeavoured to apply the principle of totality in setting the head sentence and the minimum term. I have endeavoured to avoid a crushing aggregate sentence whilst still reflecting the gravity of your offending conduct and your prior criminal history. I have moderated both the individual sentences and the impact of cumulation in applying this totality principle.
Sentence currently being served
Since I heard your plea you have been sentenced by another judge of this Court to five months’ imprisonment. That sentence commenced on 8 May 2014. The conduct for which you were sentenced was entirely unrelated to any of the conduct for which you currently stand to be sentenced. I consider that 2 months of this sentence ought be served cumulatively on the sentence I now impose. I have not made formal orders for cumulation and instead take this earlier offence into account in setting the base sentence. It follows that I have taken this sentence into account in setting the total effective sentence and the minimum term. The parties agreed, in supplementary written submissions, that this approach was open.
Stand up please.
Balancing all these competing factors as best I can, I sentence you as follows:
Indictment No 1
Charge 7 2 years’ imprisonment
Charge 8 1 month imprisonment
Indictment No 2
Charge 1 14 years’ and 2 months’ imprisonment
Charge 2 6 years’ imprisonment
Charge 3 2 years’ imprisonment
Charge 4 4 years’ imprisonment
1 declare that the base sentence is Charge 1. 14 years’ and 2 months’.
I make the following orders for cumulation:
Charge 7 Six months cumulative on charge 1
Charge 2 2 years cumulative on charges 1 and 7
Charge 3 6 months cumulative on charges 1, 7 and 2
Charge 4 1 year cumulative on charges 1,7,2 and 3.
That comes to a total effective head sentence of 18 years’ and 2 month’s imprisonment. I direct that you serve a minimum of 14 years’ and 2 months’ before you are eligible for parole.
I declare that 715 days up to and including 7 May 2014 be reckoned as served by way of pre-sentence detention.
I declare that but for your pleas of guilty I would have sentenced you to an effective head sentence of twenty-two years with a minimum sentence before parole eligibility of 18 years.
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