R v Cahill and Goldsmith
[2017] VCC 749
•9 June 2017
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication | |
AT MELBOURNE
CRIMINAL DIVISION
CR-15-01400
CR-15-01401
| THE QUEEN |
| v |
| ANDREW VINCENT CAHILL and DANNY LEE GOLDSMITH |
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JUDGE: | HIS HONOUR JUDGE GAMBLE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 June 2017 | |
DATE OF SENTENCE: | 9 June 2017 | |
CASE MAY BE CITED AS: | R v Cahill & Goldsmith | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 749 | |
REASONS FOR SENTENCE
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Catchwords: Sentence –
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Ms K. Hamill (Plea) Mr J. Goliszek (Sentence) | Office of Public Prosecutions |
| For the Accused Cahill For the Accused Goldsmith | Mr M. Allen Ms K. McKay | Galbally & O’Bryan Matthew White & Associates |
HIS HONOUR:
Introduction
1 Andrew Cahill and Danny Goldsmith, you have each pleaded guilty to an indictment containing one charge of common law assault. The maximum penalty for that offence is five years’ imprisonment.
2 In addition, you have each consented to this court hearing a related summary charge of trespass and pleaded guilty to that charge. The maximum penalty for that offence is six months’ imprisonment or a fine of 25 penalty units.
3 The circumstances of those offences are set out in the typed prosecution opening dated 26 May 2017, a copy of which was tendered as Exhibit A on the plea hearing. I have had regard to that opening when determining the appropriate sentences in this case. It is sufficient, for present purposes, to provide the following brief outline.
Circumstances of the offending
4 The offences were committed in a single episode that occurred at the home of the victims on the evening of 10 September 2014. At that time, you were aged 32, Mr Cahill and you Mr Goldsmith, were 25. You are now aged 34 and 28, respectively.[1]
[1] Mr Cahill was born on 11 August 1982 while Mr Goldsmith was born on 30 October 1988.
5 In order to understand what the catalyst for this incident was, I need to outline how the various parties knew each other, and to some extent, where they lived.
6 The two accused in this matter are step-brothers as when Mr Cahill’s father left the family home, he re-married the mother of Mr Goldsmith. From that new union, the victim Kevin Cahill was born. He is therefore a half-brother to each of the accused.
7 For a period prior to September of 2014, you, Mr Goldsmith, had a partner by the name of Brooke Skerry. For his part, Kevin Cahill had a partner by the name of Lauren Wood-Bondini.
8 For some time prior to mid-2012, Ms Skerry had rented a Housing Commission property in Reservoir. When she moved out in mid-2012, she did not want to lose that property, and so sub-let it to Andrew and Kevin Cahill and Ms Wood-Bondini. When the Commission took back possession of that property in about 2013, they discovered $1,500 worth of damage. They obtained an order against Ms Skerry for that amount. In turn, she negotiated a settlement with the other three occupants under which they would pay their share of the $1,500 damages bill.
9 At around 11:30 am on 10 September 2014, Ms Skerry spoke to Kevin Cahill on speakerphone about that damages debt. Ms Wood-Bondini could hear the conversation which soon escalated into an argument. At one point,
Kevin Cahill took offence at the manner in which Ms Skerry was speaking to his partner, Ms Wood-Bondini. When he threatened to “kick the fucking shit” out of her, Ms Skerry ended the call. A short time later, Kevin Cahill called her back and apologised.
10 Later that day, Ms Skerry telephoned you, Mr Goldsmith. After telling you about those two phone conversations, she attended at your Hadfield home at around 9:30 pm. Mr Cahill, you were present at that address when Ms Skerry again spoke to Mr Goldsmith about those conversations.
11 At that point, Mr Goldsmith, you made a very unwise decision. You asked
Ms Skerry to drive you and Mr Cahill to Kevin Cahill’s home. You told her you were going there to teach Kevin a lesson. It was not a completely spur of the moment decision in the sense that you took some steps to ensure that the police would not be able to track your movements electronically. For example, you instructed Mr Cahill and Ms Skerry to turn off their mobile phones and leave them at the house, and you gave Ms Skerry directions to the victim’s Monbulk property that avoided freeways and therefore cameras.[2]
[2] Danny Goldsmith also turned off his own mobile phone and left it behind with the others.
12 The three of you arrived at the bungalow home of Kevin Cahill and
Lauren Wood-Bondini at about 11:00 pm. The two of you approached that address while Ms Skerry remained in the vehicle. At this time, the two victims were in bed watching television. The two of you forced entry to the bungalow through the locked front door, which split in two in the process. That forced entry to the bungalow forms the factual basis for the related summary offence of trespass. Each of you is charged as a principal.
13 On entry, the two of you then made your way to the bedroom. There, one of you kicked the sliding door open, forcing it off its hinges. When the two of you walked inside, Kevin Cahill sat up and expressed surprise at the sudden turn of events. At that point, Mr Goldsmith, you referred to the threat he had made to your ex-partner and then launched a sustained and savage attack upon him. You punched him with a closed fist approximately 20 to 30 times to the head and upper body, causing him pain. All the while, he was curled up in a foetal position and apologising and asking you to stop.
14 It is that physical assault which forms the factual basis for the charge of common law assault brought against you, Mr Goldsmith. You are charged as a principal, having personally carried out that assault.
15 In your case, Mr Cahill, the prosecution rely on the same assault but characterise your role as that of an aider and abettor to the principal,
Mr Goldsmith. You were present in circumstances where you were intending to offer encouragement and assistance, if necessary, to the victim’s assailant. In this context, it is relevant to note that at one point, you jumped onto the bed between the two victims and told Ms Wood-Bondini that she "would be next" if they did not return the fridge that you had previously given them when they had moved out of the Reservoir property.
16 Shortly afterwards the two of you left the address. As Ms Skerry was driving you back home, she was told about the assault on Kevin Cahill.
17 The victim, Mr Cahill, rang the police. A short time later, the police attended at his address and processed the scene, taking a number of photographs of both him and the property.
18 He was ultimately transported by ambulance to a local hospital where the examining doctor found signs of bruising and tenderness to the left posterior chest wall, left armpit, left side of the head and right wrist. The victim was discharged later that morning.
Arrest and Interview
19 Each of you were arrested and interviewed two months later, on 10 November 2014.
20 During your record of interview, Mr Goldsmith, you told police, among other things, the following:
21 You confirmed the relationship between yourself, Andrew and the victims, and the fact that Brooke Skerry was your ex-girlfriend. You acknowledged that there had been a "little bit" of a dispute with Kevin in relation to the money owed to Brooke for the damages debt. On your account, neither Kevin nor Lauren had made any payments to Brooke, and Lauren had sent you a couple of "smart-arsed text messages".
22 You told police that Brooke had contacted you a few times about the dispute she was having with Kevin and she was upset. She had told you that Kevin had threatened her over the phone and you thought that Kevin was trying to get out of paying back the money he owed to Brooke. On your account, however, you just told Brooke that she would have to sort it out. You denied having ever assaulted the victim or even knowing his exact address beyond the fact that he lived in Monbulk ‘somewhere’.
23 In your record of interview, Mr Cahill, you told police, inter alia, the following:
24 You had lived at the Reservoir property with Kevin and Lauren for about 12 months and were aware of the damages debt. You had arranged to pay Brooke $500 and Kevin and Lauren were to pay the other $1,000. You claimed not to have seen Kevin and Lauren since late June/early July 2014 and indicated that you had last spoken to Kevin in early July. The two of you had “text wars” for another week or two after that, because he still had a lot of your things, including a fridge that you wanted back. You denied being aware of the telephone conversation between Brooke and Kevin. Like your co-offender, Mr Goldsmith, you denied knowing what the victims’ actual address was and you denied attending there or assaulting your half-brother,
Kevin Cahill.
25 Following those interviews, each of you were charged and then released on bail. As you have both remained on bail ever since, there is no period of pre-sentence detention to be declared in either case.
Personal circumstances of Mr Goldsmith
26 As to your personal circumstances, Mr Goldsmith, you were born on
30 October 1988. You were 25 at the time of this offending and are now 28.
27 You have an older sister. Your parents, who are both still alive, separated when you were very young. Thereafter, you lived with your mother and sister. When you were about three, your mother re-partnered with Glen Cahill, the father of your co-offender, Andrew Cahill. Your mother and Mr Cahill Snr went on to marry and have two children together, one of whom was the principal victim in this matter, Kevin Cahill. You consider your step-father to have been a tough man.
28 As for your own father, he also re-married, but had no more children.
29 As you were growing up, you were exposed to some violence as well as regular drug use by others.
30 Your education was disjointed as a result of being moved around to different family members and suburbs. You evidenced some behavioural problems at school and ultimately left in Year 9.
31 To your credit, you have a very good work history and a strong work ethic despite your difficult background.
32 At 14, you worked for a plastering company for three months. Then, you performed floor sanding and polishing work for two and a half years or so. After shifting between landscaping, factory work and scaffolding, you completed part of an apprenticeship in cabinet making, before that company went into liquidation.
33 At age 17, you went into business for yourself and sub-contracted your services installing floating floors. Through concerted efforts on your part, you were a much sought-after installer and obtained regular work and a loyal client base. At age 19, you started your own such business and continued to do well right up until the present time, as is evidenced in part by the reference from the owner/director of the company, Quinns Floor Finishings.
34 Also to your credit is the fact that you have no substance or alcohol-related issues. However, you do have an issue with anger management and dealing with conflict appropriately, as is evidenced by your participation in this offending as well as in a previous incident of offending, about which I will say more later.
35 You commenced a relationship with Ms Skerry in about mid-2009 when you were 20 and she was 19. You took on some responsibilities in relation to the care of her young son from a previous relationship. The two of you commenced living together within six months and she fell pregnant, later giving birth to your son on 25 October 2010. After living in the Reservoir Commission flat, you moved the family to Hadfield where you continue to live.
36 The relationship broke down in June of 2014. You had regular contact with both boys until they were moved to the care of Ms Skerry’s mother after intervention from DHS. However, in October of 2016, you refused to return them after an access visit. Litigation followed. As you could not at that stage fund a lawyer to act for you, you have not had access to those boys for many months. I am told, however, that you plan to pursue that matter in the near future so that you can re-engage with your son.
Personal circumstances of Mr Cahill
37 As for your personal circumstances, Mr Cahill, you were born on 11 August 1982. You were 32 years of age at the time of this offending and are now 34.
38 You had a dysfunctional upbringing in which you witnessed and were subjected to violence at the hands of your father. He abused alcohol and used drugs. He was both verbally and physically violent to you and your mother, particularly your mother, who was hospitalised on a number of occasions. That experience lasted until he left the family home when you were about six. It left you with significant behavioural problems and a feeling of insecurity.
39 Unsurprisingly, you did not do well at school due to those behavioural issues and your family’s transient existence. You struggled with the academic requirements and commenced abusing alcohol at a young age. Ultimately, you left school at the end of Year 10.
40 You have a good work history. You successfully completed a bricklaying apprenticeship between the ages of 16 and 21. You continued to work in that field until you were 28 at which stage your drug addiction became severe. From that point until your arrest for this matter, you had been unable to work.
41 Prior to your father’s death in 2007, your resort to drugs and abuse of alcohol appears to have been a response to your dysfunctional, unstable and problematic upbringing.
42 However, your life really spiralled downwards following the death of your father. You had remained in regular contact with him after he and your mother had separated. His death impacted you severely and, as a consequence, you resorted to a form of self-medication through increased use of drugs and alcohol to try and alleviate the strong emotions that you were experiencing. That appears to have gone undiagnosed and untreated until this incident occurred in September of 2014.
43 However, there is a positive that has come from that most regrettable incident, as your arrest for that matter appears to have been the catalyst for you to make a genuine attempt to get your life back on track. You have gone from someone who was unemployed, distanced from his family and using drugs and drinking heavily, to someone who has re-engaged in full-time work and with his family, ceased his drug use and moderated his alcohol consumption. You have committed no further offences in the nearly three-year period since the offending for which you must now be sentenced. And, you have embraced the added responsibilities of a new relationship and recent fatherhood.[3] Your daughter was born approximately seven months ago.
[3] Mr Cahill and his current de facto partner, Alyce Doyle, commenced their relationship approximately 18 months ago and have been living together for about 16 months.
44 You were assessed by the psychologist, Dr Barth, on 9 May 2017. I have read his report and found it of assistance in my sentencing task. At that time, you were considered to be experiencing ‘depressive and anxiety-related symptoms of mild intensity’. Your mental state was partly explained by your current legal predicament and considered to be within normal limits. You presented as an immature man for your age and evidenced ‘social judgement that was unsophisticated and simplistic’.
45 I note that whilst you were using drugs and abusing alcohol in the period leading up to this offending, you were not, on your account under the influence of either on the night in question. I have no reason to doubt that account put forward by your counsel.
46 Although you have managed to cease drug use and curb your consumption of alcohol without any professional intervention or assistance, Dr Barth considers you to have you have limited insight into your substance abuse issues and a poor level of social awareness. Containing your alcohol consumption is a matter that needs urgent attention and a suitable treatment plan should be implemented as soon as possible. You are considered to be willing and motivated to participate in any such treatment.
Criminal History of Mr Goldsmith
47 Mr Goldsmith, you have a very limited but very relevant criminal history. You have been found guilty of two offences arising from a single Magistrates Court appearance in August of 2011. On that occasion, you were fined without conviction in respect of one charge of burglary and one charge of theft.
48 Those two offences were committed by you in a single episode of offending that bears some similarities to that before this court, even though it involved no violence. As your counsel, Ms McKay, explained at the plea, you were upset at the behaviour of an ex-boyfriend of your then-partner and believed that he had stolen some of your work tools. You took the law into your own hands and went to his address. He was not home. You entered and searched for the tools, to no avail. You then stole a computer which you later discarded elsewhere.
49 It is of obvious concern to this court that your prosecution and sentencing for that matter did not cause you to approach the current situation with your half-brother differently. There is an obvious need to give due recognition and weight to specific deterrence in your case. You were not deterred from your 2011 experience, or at least not sufficiently, and so this court must, by the sentence it now imposes on you, seek to provide a sufficient discouragement to you against any repetition of this or any similar type of offending.
Criminal History of Mr Cahill
50 Mr Cahill, your criminal record is also very limited and involves no past offending of a similar nature to the present. Those two past offences were possession of a prohibited weapon, namely a knife, and possession of methylamphetamine. You were convicted and fined for the drug offence in November 2012, and placed on a 12-month Good Behaviour Bond without conviction, for the weapon offence on 13 January 2014. The latter matter assumes some significance in light of the fact that you were approximately nine months into that 12-month reconnaissance period when you committed the current offences. That represents an aggravating feature of your offending and highlights the need to impose a sentence on you today that goes some way towards deterring you personally from re-offending in the future.
Gravity of the current offending
51 The type of offences with which this case is concerned are inherently serious, as demonstrated by the fact that they carry the possibility of imprisonment - a custodial maximum penalty.
52 Mr Goldsmith and Mr Cahill, it has been accepted by your counsel that the offending in which you jointly participated on this occasion was serious. Similarly, there was no dispute that the circumstances in which the offences of trespass and common law assault were committed mark them as serious examples of their type.
53 In each case, you acted in company. The offending occurred late at night and at the victims’ home. The trespass took place in circumstances where violence was used to force open the front door. As for the assault, the two of you must have presented as a frightening combination when you unexpectedly kicked open the victim’s bedroom door that night. The physical assault which then occurred was cowardly, sustained and no doubt very frightening. It involved the repeated use of physical force against an unarmed and passive man in his own bed. It took place in the presence and sight of that man’s female partner, who, unsurprisingly was traumatised by what occurred as is clear from her victim impact statement. This assault had the potential to play out even more seriously than it did and both offenders and the male victim should count themselves lucky that the injuries sustained were not more serious.
54 You are each equally culpable in respect of the trespass offence as you were both principals.
55 In regards to the assault, you, Mr Goldsmith, bear a higher degree of moral culpability for that offence as you were the one that carried it out. Your role was greater than that of Mr Cahill. That fact alone warrants you being sentenced to a harsher degree than Mr Cahill.
56 But, your participation in that assault by way of your presence and encouragement, Mr Cahill, is not to be treated lightly, far from it. The parting threat that you made to Ms Wood-Bondini shows just how angry you were on that night, and I have no doubt that the two victims would have been under no misapprehension about your approval of what Mr Goldsmith was doing to Kevin Cahill during the course of the assault. And, your offending on this night was made worse by the fact that you were subject to a court order at the time.
57 It seems clear that for both of you, the events of that day between Kevin Cahill and Ms Skerry was the last straw. It triggered a strong reaction in each of you. The decision to pay the male victim a visit and confront him in some manner was relatively spontaneous but not wholly so, given the steps and limited planning that was involved. In saying that, I am not suggesting that the planned confrontation included any intention to physically assault him, as that would involve sentencing you for a more serious offence that the prosecution have previously decided not to persist with. I make clear, that you will both be sentenced on the basis that the intention to assault Kevin Cahill, and to aid and abet that assault, was only formed after entry to his house was effected.
Motivation for the offending: Mr Goldsmith
58 In your case, Mr Goldsmith, the motivation for you offending as you did arose from the disrespect that Kevin Cahill showed towards your ex-partner. It was no doubt a verbal threat that angered you, particularly given the assistance that the two of you had offered to him and his partner previously. After all, it was your then-partner who had offered up the Housing Commission accommodation to the two victims in the first place and they had, according to your partner, left it in a damaged condition. You appear to have had real doubts about their genuineness in agreeing to pay their share of the damages bill which Ms Skerry had been lumbered with.
59 Mr Goldsmith, you would seem to be someone whose instinct is to act protectively and hastily. You have to rethink that propensity as it will only continue to get you into trouble in the future. You must develop more appropriate strategies to deal with such situations, and it is the aim of this court to assist you to do so under the guidance of professional counselling to be undertaken as part of a community correction order.
Motivation for the offending: Mr Cahill
60 In your case, Mr Cahill, the motivation is a little more nuanced, as your counsel, Mr Allen explained. No doubt, what the victim had said and done to your co-offender’s ex-partner Ms Skerry played its part in your thinking on the night. But so too did the rather complex set of interactions that had previously occurred in your extended family, of which the male victim and your co-offender were a part. You appear to have been very unhappy with the way the two victims had conducted themselves, more generally, as is evident from the parting verbal shot you directed at Ms Wood-Bondini just before leaving.
Matters in Mitigation: Mr Goldsmith
61 Mr Goldsmith, your counsel was able to rely on a number of other matters in mitigation on your behalf.
62 You have pleaded guilty to both of these offences, albeit at a relatively late stage. Despite denying any wrongdoing when interviewed by police, I am satisfied that your attitude changed over time and that your plea is accompanied by some remorse on your part. It warrants a commensurate reduction in your sentence. By taking that course, you have saved the community from the cost and time associated with a trial, shown a willingness to facilitate the course of justice and, perhaps most importantly, spared the two victims from the further ordeal that would have resulted from having to give evidence at trial.
63 You have overcome a difficult childhood and background. It is very much to your credit that you have managed to avoid the pitfalls associated with drug use and abuse of alcohol. Commendably, you took the path of putting your head down and throwing yourself into your work. You have worked hard over many years and others who work in your field speak highly of your work and work ethic.
64 You have, but for this unfortunate and regrettable incident, and the single earlier matter for which you were sentenced nearly six years ago, led a law abiding and productive life.
65 Like Mr Cahill, you seem to have taken stock after this matter. There has been no further offending in the significant period that has since elapsed. You are now motivated to take appropriate steps so that you can re-engage with your young son.
66 I accept your counsel’s indication at the plea, that you are taking this matter very seriously. As she explained, you are willing to undertake unpaid community work and to engage in whatever treatment and counselling you may be offered under a community correction order.
Matters in Mitigation: Mr Cahill
67 In your case, Mr Cahill, you too have a number of other matters in mitigation that can be relied on.
68 I take the same view regarding your plea of guilty and remorse that I took with Mr Goldsmith. If anything, the evidence as to the remorse that you have developed since you made denials to the interviewing police is stronger. Your sentence has been appropriately discounted to reflect those considerations.
69 I also note from what your counsel has said, that you and the male victim have undergone a reconciliation of sorts since this incident occurred.
70 You have had an unfortunate and dysfunctional upbringing and it comes as no surprise that you have struggled with substance and alcohol abuse from an early age. Your offending must, to some degree, be seen against that relevant backdrop even though you were not substance-affected at the time. I have had regard to the domestic violence, instability and complex family dynamics to which you were exposed.
71 As the psychologist noted, you are an immature man who is prone to simplistic and impulsive decision making and who endorses an overly masculine approach to conflict resolution. That, and your misguided loyalty to your co-offender, were no doubt contributing factors in your offending on this occasion. Like Mr Goldsmith, you must develop strategies which equip you with the skills to make better and more appropriate decisions in the future. It is to be hoped that a targeted community correction order will offer you that opportunity as well as an anger management course and some form of psychological counselling in relation to what appears to be unresolved grief that you continue to experience over the death of your father. It is important that you participate in such counselling, as that death appears to have been the catalyst for your resort to an even heavier use of drugs and abuse of alcohol than existed previously.
Relevant sentencing considerations
72 In each of your cases, the sentencing principles of general deterrence and denunciation are important. So too is the necessity to impose a just punishment.
73 This is the type of offending that causes the community disquiet. It is also the type of conduct that can result in much graver consequences than the offender originally intended. As such, criminal conduct of this nature must be roundly condemned by this court and strongly discouraged in those that are thinking about behaving in this way.
74 There is a real need to personally deter each of you in light of the nature and seriousness of the offending. In addition, you have the prior matter of a similar nature, Mr Goldsmith, at least in relation to the motivation for it.
Mr Cahill, you were on a bond at the relevant time. I consider this sentencing factor needs to be given slightly more weight in your case, Mr Goldsmith, on account of the nature of your prior offending and the greater role that you played in the current offending.
75 Given that greater role, the punishment that you receive must be greater than that imposed on Mr Cahill. In each case, the punishment must be sufficient to mark the relative seriousness of what you each did.
76 In my view, there is not a lot to separate the two of you in terms of your prospects of rehabilitation. It may be that because of the serious and entrenched nature of Mr Cahill’s substance and alcohol abuse problems that he has a longer and more difficult road to travel than does Mr Goldsmith. But, I do not underestimate the efforts that Mr Cahill has made in that regard already. In the end, I consider each of your prospects to be good, but in
Mr Goldsmith’s case to be ever so slightly better.
Sentencing submissions
77 At the plea, all parties were of the same mind in so far as the sentencing submissions were concerned. It was universally accepted that, given the nature of this offending, the role played by each offender, and their respective personal circumstances, including those which could be put forward by way of mitigation, all relevant sentencing considerations could be adequately recognised and weighted through a community correction order of sufficient length and with appropriate conditions. It was also accepted that such an order should be imposed with conviction in each case, but that the length of the order and the nature of the conditions imposed should vary as between
Mr Goldsmith and Mr Cahill.
78 I agree with the parties’ assessment of the appropriate dispositions in this case and was much assisted by the submissions that each of the three counsel made at the plea hearing.
79 Before announcing my sentences, I should just indicate that I have read and had regard to the sentencing statistics and cases to which counsel have referred me.
80 Please stand, Mr Goldsmith.
Disposition: Mr Goldsmith
81 In your case, Mr Goldsmith, you will be convicted of each of the offences to which you have pleaded guilty.
82 Providing you consent to being placed on such an order, you will, in respect to the charges of trespass and common law assault, be placed on a community correction order for a period of two years, with the usual mandatory conditions as well as the following additional conditions.
83 You must perform 200 hours of unpaid community work.
84 You must be under the supervision of a Community Corrections Officer.
85 You must undergo any mental health assessment and treatment as directed.
86 You must participate in programs and/or courses that address factors relating to the offending, as directed.
87 You must subject yourself to judicial monitoring and re-appear at court for a review of your compliance with the order as directed by the court. The first of those court reviews will take place at 10.00 am on 17 October 2017.
88 Mr Goldsmith, has your counsel explained to you the nature and effect of this community correction order, and the potential consequences for you if you were to breach it?
89 OFFENDER GOLDSMITH: Yes, your Honour.
90 HIS HONOUR: Knowing those things, do you consent to being placed on such an order now and being bound by all of its conditions?
91 OFFENDER GOLDSMITH: Yes, your Honour.
92 HIS HONOUR: Very well. You will now be asked to sign that order. If you have any questions about it before signing, you can seek the assistance of your counsel.
93 OFFENDER GOLDSMITH: Thank you, your Honour.
94 (Order signed by Mr Goldsmith)
95 HIS HONOUR: Is that your signature on that order, Mr Goldsmith?
96 OFFENDER GOLDSMITH: Yes, your Honour.
97 HIS HONOUR: Very well. I have now signed that order and you are formally sentenced in the manner that I foreshadowed.
98 You may now be seated, Mr Goldsmith.
99 Please stand, Mr Cahill.
Disposition: Mr Cahill
100 In your case, Mr Cahill, you will be convicted of each of the offences to which you have pleaded guilty.
101 Providing you consent to being placed on such an order, you will, in respect to the charges of trespass and common law assault, be placed on a community correction order for a period of 18 months, with the usual mandatory conditions as well as the following additional conditions.
102 You must perform 120 hours of unpaid community work.
103 You must be under the supervision of a Community Corrections Officer.
104 You must undergo any mental health assessment and treatment as directed.
105 You must undergo assessment and treatment (including testing) for drug abuse or dependency as directed.
106 You must undergo assessment and treatment (including testing) for alcohol abuse or dependency as directed.
107 You must participate in programs and/or courses that address factors relating to the offending, as directed.
108 You must subject yourself to judicial monitoring and re-appear at court for a review of your compliance with the order as directed by the court. The first of those court reviews will take place at 10 am on 18 October 2017.
109 Mr Cahill, has your counsel explained to you the nature and effect of this community correction order, and the potential consequences for you if you were to breach it?
110 OFFENDER CAHILL: Yes, your Honour.
111 HIS HONOUR: Knowing those things, do you consent to being placed on such an order now and being bound by all of its conditions?
112 OFFENDER CAHILL: Yes, your Honour.
113 HIS HONOUR: Very well. You will now be asked to sign that order. If you have any questions about it before signing, you can seek the assistance of your counsel.
114 (Order signed by Mr Cahill)
115 HIS HONOUR: Is that your signature on that order, Mr Cahill?
116 OFFENDER CAHILL: Yes it is, your Honour.
117 HIS HONOUR: Very well. I have now signed that order and you are formally sentenced in the manner that I foreshadowed. Please remain standing.
118 Could you now also stand, Mr Goldsmith, just next to Mr Cahill.
Warning as to consequences of breaching the CCO
119 Mr Goldsmith and Mr Cahill, what I am about to say by way of a warning applies equally to each of you.
120 You have been given a real chance and opportunity by being placed on the order that you have. Do not waste it. Apart from punishing you, the order is designed to help you to address the factors that caused you to offend as you did and to assist you in your efforts to achieve long term rehabilitation. Providing that you engage in that process willingly and with genuine motivation, you will be better for the experience and the community will also benefit.
121 But if you do not, the consequences for you will be serious. If you fail to comply with one or more conditions of this order while it is in place, one of which is not to commit any further offence punishable by imprisonment, then you will likely be charged with the offence of contravening a community correction order and brought back before this court, most likely before me to be dealt with for that offence, which carries a maximum penalty of 3 months’ imprisonment, and for re-sentencing in respect to the two charges for which I have placed you on a community correction order today. You should understand, and understand clearly, that if that were to occur, you would be at very real risk of being sentenced to an immediate term of imprisonment, that is, to gaol.
122 Do you understand what I have just said, Mr Goldsmith?
123 OFFENDER GOLDSMITH: Yes, your Honour.
124 Do you also understand what I have just said, Mr Cahill?
125 OFFENDER CAHILL: Yes, your Honour.
126 Very well, I hope and trust that I will not have to remind you of that exchange in the future.
127 Just continue on the path that you have been going on in recent times and I am sure each of you will be okay.
Ancillary Orders
128 I am prepared to exercise my discretion in favour of granting the prosecution’s application for a forensic sample order, in each case.
129 In each case, I grant the prosecution’s application for a forensic sample order under s.464ZF of the Crimes Act 1958 and for the same reasons.
130 Mr Goldsmith and Mr Cahill, in respect to each of you, separately, I order, pursuant to s.464ZF(2), that you undergo a forensic procedure for the taking of a scraping from the mouth in accordance with sub-division 30A of Part 3 of that Act, until a sample of sufficient standard is obtained for placement on the database. Having considered the seriousness of the circumstances of the forensic sample offence, I am satisfied that in all the circumstances the making of the order is justified for the following reasons: the seriousness of the circumstances of the offending warrant the order, the granting of the order is not opposed, and the granting of the order is in the public interest.
131 I must tell each of you that if, at the time you are requested, you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force, then the sample to be taken will be a blood sample, and police may use reasonable force to enable that forensic procedure to be conducted.
132 Do you understand that Mr Goldsmith?
133 OFFENDER GOLDSMITH: Yes, your Honour.
134 Do you understand what I have just said, Mr Cahill?
135 OFFENDER CAHILL: Yes, your Honour.
136 Are there any matters that counsel wish to raise at this stage, either in relation to the sentence or the sentencing reasons?
137 MR ALLEN: No, your Honour.
138 MS McKAY: No, your Honour.
139 MR GOLISZEK: Your Honour, it is my understanding of s.6AAA, because you have sentenced Mr Goldsmith to a two-year CCO, that Your Honour would be required to - for s.6AAA - - -
140 HIS HONOUR: You might want to have another look at that section, it does not, does it? It is only if there is a term of imprisonment, or a fine above a certain amount. So I do not intend to give a s.6AAA in this case. I think it would be obvious, in any event, that each accused would be at serious risk of going to gaol had they not pleaded guilty to these offences as they had.
141 MR GOLISZEK: If Your Honour pleases.
142 HIS HONOUR: Very well. Mr Goldsmith and Mr Cahill, you will be free to leave this court once you have been given a copy of your community correction order and the forensic sample order.
143 Adjourn the court sine die please, Mr Hammill.
144 MS McKAY: If Your Honour pleases.
145 - - -
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