R v Dimitrovski
[2015] VSC 715
•20 November 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2015 0059
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PETER JOHN DIMITROVSKI |
S CR 2015 0060
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ROBERT JAMES DIMITROVSKI |
S CR 2015 0061
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOHN HENRY PEARCE |
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JUDGE: | COGHLAN JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 10 November 2015 |
DATE OF SENTENCE: | 20 November 2015 |
CASE MAY BE CITED AS: | R v Dimitrovski & Ors |
MEDIUM NEUTRAL CITATION: | [2015] VSC 715 |
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CRIMINAL LAW – Murder – Manslaughter –Affray.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms A Hassan | Ms V Anscombe, Acting Solicitor for Public Prosecutions |
| For Peter John Dimitrovski | Mr D A Dann | Galbally & O’Bryan |
| For Robert James Dimitrovski | Mr P J Hannebery | Lethbridges Barristers & Solicitors |
| For John Henry Pearce | Mr D C Hallowes | Stary Norton Halphen |
HIS HONOUR:
On 17 September 2015 you, Peter Dimitrovski, pleaded guilty to the murder of Sobin Sebastian on 11 October 2014. At the time of his death, Mr Sebastian was using the name Tre Simmons and you knew him as Tre. On 28 September 2015, you, Robert Dimitrovski, pleaded guilty to the manslaughter of Sobin Sebastian on 11 October 2014 and, you, John Pearce pleaded guilty to affray on that day.
Ms Hassan appeared for the Director of Public Prosecutions on the plea, heard on 10 November 2015. She opened the case in detail and I call heavily upon her opening in these remarks. Mr Dann appeared for you, Peter Dimitrovski; Mr Hannebery appeared for you, Robert Dimitrovski, and Mr Hallowes for you, Mr Pearce.
The events which bring us all here occurred at about 3.15 am on 11 October 2014 at 16 Rosella Crescent, Caroline Springs, when you, Peter and Robert Dimitrovski, beat Sobin Sebastian to death in circumstances which lead to his death.
What occurred was the culmination of a series of events which had taken place over the preceding months. Both of you, Peter and Robert Dimitrovski, were living with your mother and brother at 13 Kilburn Grove, Derrimut. You, Peter Dimitrovski, were the owner of the house at 16 Rosella Crescent, you had bought the land and had the house constructed in 2007. At some stage you had lived briefly in the house but had moved back to live with your mother. You generally regarded the property as an investment property.
In the six months preceding these events you had been spending some time at the house and you had purchased white goods for use in the house and you were paying for all the utilities. You visited the house mostly for the purpose of taking illicit drugs with others, who you did not want at your mother’s house. You told police that during the same six month period you were allowing Sobin Sebastian, who you had met in March 2012 and whom you knew as Tre, to use a room at the house for storage. Although you said you rented the room, he did not pay rent. By October 2014 you wanted him out of the house but he refused to go.
On 3 October 2014, you told your community corrections officer that you had a murderer living in your investment property. You said that he had moved into the house ‘for ransom’ and would not leave. The officer advised you to go to the police but you said you could not trust the police and that you were going to take the matter into your own hands. You denied any drug debt as being related to the property, but said that demands were being made on you over a $15,000 motor car. You told Dr Ruth Vine, consultant psychiatrist, who saw you for the purpose of these proceedings and who prepared a report dated 26 October 2015, which was tendered on the plea, that there was exorbitant interest on the loan and other demands were being made for transport and other services. You told Dr Vine that you had been forced to watch as Mr Sebastian threatened a person who he had tied up in a bath tub with a Stanley knife and you had been told by him that he had tied up a woman and kept her in a basement to ensure that drug debts were paid.
You decided to try and force Sebastian out of the house. You enlisted the help of your brother, Robert and of John Pearce, who had an ongoing relationship with your mother. On Friday, 13 October 2014, Mr Sebastian contacted two friends of his seeking help. One was asked to help him get out of the house and store his belongings. That friend was not able to assist. The other friend, one Marcel Elia, was contacted about 11.00 pm and asked to come to the house. Mr Sebastian sounded panicked. Mr Elia went to the house and arrived about midnight. Mr Sebastian had a cut to his head and said he had been attacked by eight men who had come to the house looking for drugs and money. Mr Elia tried to get medical assistance for Mr Sebastian but was not able to do so.
Whatever the circumstances of that apparent raid on the house on 13 October 2014, it did not have anything to do with you three men.
At the time of these events, you, Peter Dimitrovski, were employed as a driver by Victorian Environment Waste Management Services where you had been employed for the last eight or nine years. You worked overnight collecting waste, at times chosen by you. On 13 October you commenced work at about 9.00 pm. You returned to your workplace at about 2.13 am and at 2.19 am you were picked up by John Pearce in his van. The two of you met up with Robert Dimitrovski and got into his black Saab, and together the three of you drove to 16 Rosella Crescent.
You were seen on CCTV arriving at about 3.14 am. You were there, briefly left, but returned a few minutes later. At that time, Mr Elia and Mr Sebastian were in the house. They heard the car approach and went to the backyard. But when the car left they returned to the house. When the car returned, Sebastian went out into the street. Mr Elia armed himself with a small steak knife from the kitchen. He heard, shortly afterwards, Mr Sebastian screaming his name (that is, screaming Mr Elia’s name). He went outside and when he came outside he got into a confrontation with you, John Pearce. You were carrying a walking stick which you waved at him and later struck him with it. Mr Elia could see that Sebastian was on the ground being struck by you, Robert Dimitrovski, with a long metal pole. Sebastian was against the house. You, Robert Dimitrovski, were using a double‑handed action. Mr Elia was calling upon you, Robert Dimitrovski, to stop, when he was confronted then by you, Peter Dimitrovski. Mr Elia tried to bump you but he did not achieve much. He was knocked backwards towards his car which he had earlier parked in the driveway and about that stage he dropped the knife.
He was attacked by you, Robert Dimitrovski, on the instructions of you, Peter Dimitrovski, but he was largely able to fend off the blows. Mr Elia threw a rock at your group. He went into the neighbouring yard until you left, when he went back to the house.
He there found Mr Sebastian on the floor, as he described it, his brains leaking out. It follows that Mr Elia had not seen the final attack on Mr Sebastian.
Rosella Crescent, in ordinary circumstances, was a quiet suburban street. Some neighbours who lived on the other side of the street were woken by the noise. A male neighbour spoke to you, John Pearce, asking if he should call the police and you said no. He saw you standing in the middle of the street. A female neighbour went outside and saw both of you, Dimitrovskis on the porch of number 16. She saw you, Robert Dimitrovski, leave the porch area and you, Peter Dimitrovski, follow. She says that she saw you, Robert Dimitrovski, go back, she thought into the house although she did not actually see you do so. When you next came into her line of view, you were carrying what she called a thin baseball bat and which she described as follows: ‘The furtherest [sic] end away from his hand appeared to have a shallow or slight curve at the end of it, it was 2 inches in diameter and appeared to be tapered; and had a brushed aluminium look.’ No weapons used in the attack have been recovered.
The male neighbour who had spoken to you, Pearce, had heard bashing and crashing in the house before speaking to you. He says that he saw two men leaving the house which he agreed amounted to seeing them leave the porch area and he said that he saw you, Robert Dimitrovski, carrying something. Both of these neighbours described the movements of Mr Elia pretty much as he had done.
Another female neighbour heard noises and saw Sebastian entering the house and then heard yelling and screaming. She called emergency services. When on the phone, she heard somebody say, ‘No, don’t, don’t’. She heard noises which sounded like something solid being hit and other noises, more like a thud, with a person screaming after each hit.
The husband of that witness awoke to hear a male voice yelling, ‘No’ repeatedly. He saw both of you Dimitrovskis beating Sebastian on the ground outside the house. He saw Mr Sebastian run into the house and you, Peter Dimitrovski, follow. And he heard a male scream, ‘No, please’ from inside. He saw you, Robert Dimitrovski, remain outside. He heard your group leave and saw Mr Elia leave.
Other neighbours saw you, Robert Dimitrovski, attack Mr Sebastian and Mr Elia. The three of you left the scene in the black Saab. CCTV footage demonstrates that the three of you went to Victorian Environment Waste Services, you, John Pearce, having collected your white Mitsubishi van along the way. It is probable that at least part of the reason for the trip was to dispose of any weapons which were used, but nothing turns on that because it is clear that the weapons were disposed of, whether it was in those circumstances or otherwise.
When police attended at the scene, they found Mr Sebastian’s body. A blood spatter expert found blood spatter outside the premises which supported the proposition that the deceased had been struck outside the premises in much the way described by Mr Elia. There was also a trail of blood into the premises and there was also blood staining throughout the house, most of it near where the deceased’s body was found. Blood spatter evidence supported the view that Mr Sebastian had been attacked quite severely inside the house.
Dr Malcolm Dodd, pathologist, formed the opinion that Mr Sebastian’s death had been caused by blunt force trauma to the head. He also found evidence of other blunt force trauma, especially to the abdominal region of Mr Sebastian. He thought that many of the injuries had been caused by the use of a pinch- or crowbar. That would be consistent with the instrument described by the female neighbour. She placed that in your hand, Robert Dimitrovski, but it does not follow that you were the person who used it.
You were all interviewed by the police. You, Peter, Dimitrovski, made a statement on 14 October 2014, and a record of interview on 20 October 2014. In your statement, you denied any involvement in the death and denied having gone to 16 Rosella Crescent on the night of 10-11 October 2014.
In your record of interview you told police that Tre was a dangerous person, ‘I had no way out. I was going to do him pretty much. I went to get my house back. John and Robert came with me’. You told the police that Mr Sebastian had appeared at the front door with a machete or a big knife, and that then you picked up a piece of wood to defend yourself and that there was a wrestle and you hit the accused a few times to the back and there were a lot of head shots, as you described it.
You, John Pearce, shaved off your beard in an attempt to disguise your identity.
There are some general observations I will make about the case. The circumstances of the offending are, of course, quite serious, leading to the death of a 24 year old young man. It is probable that he was a drug dealer and his conduct in taking over your house, Peter Dimitrovski, was unwarranted. But that was no justification for killing him. I accept that there was some sense of helplessness about your position, Peter Dimitrovski. You could have gone, and in hindsight should have gone, to the police. But your own involvement in drugs made it very difficult for you to do so, particularly since you were, at the relevant time, on a community correction order. Whether that was a logical assessment of events matters not, it was plainly your belief about the matter.
As I said during the hearing of the plea, I accept that the purpose of this enterprise was to get rid of Mr Sebastian out of the house. It involved a plan to use force, if necessary, but I accept that it was a plan that did not include fatal force. I do not regard the killing as premeditated. I find that it grew out of the escalating emotions and the anger and resentment which you, Peter Dimitrovski, bore to Mr Sebastian.
I do not believe that either, you, Robert Dimitrovski, or you, John Pearce, would have been involved in the escapade if you thought that there was a possibility of someone dying at the end of it. This type of crime is not necessarily unusual, although it rarely results in death. Attacks on houses for various criminal purposes are reasonably common and perhaps the earlier attack on Mr Sebastian on that night demonstrates that.
The enterprise had the motive about it that you, Peter Dimitrovski, wanted to get your house back, because your financial affairs either were, or were getting, out of control, a purpose different from that which might be seen in other of attacks of this kind.
You, Robert Dimitrovski, have no prior convictions; you, John Pearce, have only one very old matter for theft which I do not regard of any relevance for present circumstances. You, Peter Dimitrovski, have only one set of convictions from the Sunshine Magistrates’ Court in June 2014, when you were charged with possessing and using methylamphetamine, possession of amphetamine and cannabis, and deal with property suspected of having been stolen. You were released on a community correction order for six months and you were still on the order, as is clear from your discussion with your community correction officer. The prosecution took the view that the convictions were not relevant for any present purposes. That is so, except the context of your drug use and your failure to take advantage in one sense of the community correction order, which has some relevance.
It does mean, however, that the profile of your group relative to the offending of this kind is an unusual one. It tends to support the proposition that the escapade was born out of desperation. The fact that the conduct occurred both inside and outside an ordinary suburban house in the middle of the night is one of the more unsavoury aspects of the offending.
Counsel did not attempt to avoid the seriousness of the matters in that way on the plea. Mr Dann who appeared for you, Peter Dimitrovski, on the plea, tendered references from Chris and Joanne Pavlidis, your employers; Glenda Johns; Kamanu Dennis; and your mother Valarie; the report from Dr Ruth Vine, to which I have already referred; a medical report regarding your mother Valarie (Valarie) Dimitrovski; and material relating to your educational background. I have read all the material and I have had regard to it.
The main thrust of Mr Dann’s plea on your behalf was that, at 29, you were still relatively young, and that your background generally demonstrates this behaviour is not how you would ordinarily behave and I ought recognise the good in you, accept that you are remorseful and that you have good prospects of rehabilitation.
You were born in Sunshine and raised in the East Keilor area. Your father died in 2014 when you were doing Year 12. You were close to your father. Your mother works, as does your younger brother Alex. There has been no criminal behaviour in the family apart from your conviction for using illicit substances, to which I have already referred. You come from a loyal, hard-working, supportive family, who have contributed to the community.
Unfortunately for you, your girlfriend, Rosie, died in 2013. By that time both of you were using drugs. And her position was complicated by virtue of the fact that she suffered from epilepsy. Your starting to use drugs coincided with your meeting of Sebastian who supplied you with ‘ice’. Your education was unremarkable, you passed your VCE and you were admitted to a TAFE diploma course in logistics supply at Victoria University, which you successfully completed with very high marks.
You worked at Kagan Logistics at the Veolia Water Network Services ,and Victorian Environmental Waste Services where your work was good and you were regarded as hard-working. There had been difficulties in the recent past when you started using drugs and you had a break from work for about three months.
One part of your background was that the family had to leave the family home after your father’s death because the house belonged to your father’s parents. It made the family financial circumstances very complicated. You helped to provide for the family after that, managed to buy the Rosella Crescent property and later another property at Carrum. Those two properties will now have to be sold.
The Rosella Crescent address was used to carry out drug deals, and that’s how Mr Sebastian came to know about it, as a result of which Mr Sebastian managed to inveigle himself on you and virtually take over the house. Mr Sebastian told Mr Elia that he owned the house. The financial arrangements between you and Mr Sebastian became more and more complicated with demands being made for payment in the form of services and a car and possibly, I suspect, drugs. As I have already observed and I am prepared to accept, that you were afraid of Mr Sebastian and under his overbearing influence, and did not have any idea of how you would get him out of the house.
Your mother had contacted your community corrections officer on 23 September 2014, saying that you were in fear of your life and she was personally very distressed about it all (and this was the point of the tendering of the medical certificate about her situation).
It was therefore on 3 October that you did have the contact that you had with your community corrections officer, to which I have already referred. Although I accept that you thought you could not go to the police, it cannot be avoided, that that is exactly what you should have done. It was submitted that although you and your brother went to the house armed, violence was not necessarily contemplated. I don’t accept that. I proceed on the basis that it was the joint intention to remove Sebastian from the house, by force if necessary. That seems to be supported by the manner in which things did rapidly turn violent and that is the context in which any claim that Mr Sebastian was armed with a machete has been abandoned.
I give you credit for abandoning that claim, although there was no evidence, in fact, to have supported it; for instance, no machete was found. There are plenty of people, however, who might well have attempted to run a trial on the basis of that claim that was made by you at the record of interview and it is a matter which is firmly to your credit.
The matters put in mitigation on your behalf by Mr Dann were your plea of guilty, negotiations in relation to some kind of plea had been taking place since April 2015 based on an offer to plead to defensive homicide, and that your plea of guilty helped resolve the case as a whole.
There is some element of remorse in your plea; that you have been concerned to accept responsibility to avoid responsibility falling on your co‑accused; that these events were out of character; that you are relatively young, have a good work record and have generally been a good son and brother. In a limited way, it was a response to the position in which you found yourself, and you have good prospects of rehabilitation.
It cannot be avoided, however, that this was a brutal crime and a relatively young man is dead. It involved a group of which you were the leader and you were the person who had any motive for involvement.
These events occurred in a quiet neighbourhood and the victim impact statement material which I received from one of the neighbours indicated what a terrifying experience it was and, in one sense, continues to be for them. I understand their fear for the future but I think in this case there is little risk, if any, of any threat in the future from any of you three offenders, and they should be assured of that.
I have been urged to have some regard to the position of the parents of deceased. In the absence of any evidence from them, either directly or indirectly, I am unable to do so, but (as I have already observed on several occasions) this is the death of a young man.
I regard the plea as being particularly significant. I do regard your prospects of rehabilitation as good. As I have already mentioned, I have read the references and Dr Vine’s report and had regard to them. I accept that your plea and the change of version of events about the machete show remorse. I think you find it difficult to be remorseful for Mr Sebastian, of whom you were afraid, but I find that you did regret having taken his life. You were also very concerned for the difficulties you have caused for your family – your brother in particular, but for your family on a broader basis.
I am, however, obliged to have regard to general deterrence and just punishment. I was urged to impose upon you a longer than usual non-parole period. I have formed a sentence which takes into account all the matters in your favour in that I have formed an overall sentence which I regard as having been lower than usual but nonetheless just in your case.
If you would stand up for a moment, Mr Peter Dimitrovski. You will be sentenced to be imprisoned for 17 and a half years with a non-parole period of 13 and a half years. I indicate that had it not been for your plea of guilty, I would have sentenced you to be imprisoned for 21 years with a non-parole period of 17 years. I declare that you have served 396 days by way of pre-sentence detention. I order that the above indication and declaration be entered in the records of the Court. You may sit down.
Robert Dimitrovski, you can remain seated. You have pleaded guilty to manslaughter, which carries a maximum sentence of 20 years.
On your plea I received references from your mother Valeria, Michael Apap, Alexander Bach, Marina Awad, Peter Mohr, Tyson Skiba, Christopher Yianni, Ian Drayton, John Poaching, Jarrad Portelli, and Dianne and William Cunningham; a copy of your curriculum vitae; a number of certificates relating to courses which you have completed qualifying you for various positions; a number of certificate courses you have completed whilst in custody; and a report from your forensic psychologist, Simon Candish.
You are 22 years of age, and the youngest of three brothers. Peter is the eldest. You find yourself here for the support that you chose to give your brother, Peter. You have no prior convictions. You have said that you recognised the difficulties that your brother was having and wanted to help him. As one his younger brothers, it was difficult for you to find a different way by which you might have thought this situation could be resolved. I accept that the point of the exercise on the night was to get rid of Mr Sebastian out of the house and out of your brother’s life. I accept that both you and Peter went armed and were armed when you got out of the car, because Mr Sebastian came out of the house and the violence started almost immediately. I found that you struck Mr Sebastian a number of times with a pole‑like implement, probably made of metal. I found you also struck at Mr Elia but you do not fall to be sentenced for that. I found that although you may well have entered the house, you were not present when the more serious blows were struck by your brother, Peter.
You have pleaded guilty to manslaughter. That means that the prosecution accept that you did not yourself intend to kill or cause really serious injury to Mr Sebastian or that you were party to an agreement with your brother Peter to do so. It also follows that the prosecution accept that you did not foresee the possibility that your brother Peter would intentionally cause the death intending to cause death or at least really serious injury. (I should say, in parenthesis, that I did not mention it in relation to the case of Peter Dimitrovski. I find his conduct not premeditated and I would be satisfied that the intention was the intention to cause really serious injury rather than death.)
You unlawfully attacked Mr Sebastian and a reasonable person in your position would have realised that you were exposing Mr Sebastian to an appreciable risk of serious injury. In this case, the blows you delivered were all outside the house and Mr Sebastian got himself back into the house after that, and was killed in the house by your brother, Peter. You were involved jointly in the enterprise with your brother to a sufficient degree to make you guilty of manslaughter. I take into account on your behalf that had your brother Peter not gone on with things in the way that he did, Mr Sebastian might have survived.
As I have already observed, you are only 22 years of age, and you have no prior convictions. It was accepted on the plea that this was an offence which is not at the lower range of the range for offences of this kind, and I would characterise it as being either in the middle or slightly above the middle of the range, which will inevitably involve a wide range of different sets of circumstances.
Your conduct is aggravated by being in company, involving the use of weapons, brought about with an underlying intention to assist (if necessary), your physical part was played in the view of some of the neighbours, you struck a number of blows towards Mr Sebastian, although you were acting to assist your brother and out of loyalty – this was not your fight.
Although you did strike blows which shows that you were prepared to injury Mr Sebastian and the blood spatter evidence shows that you probably did, I could not be satisfied that any blow you struck did contribute to the death.
Your plea to manslaughter indicates that whatever the position, you did not attend at Rosella Crescent intending serious injury or death. Whatever was to be achieved on this night, it was not for your benefit except in the way it helped to solve your brother Peter’s problems, and that was your motive for involvement. Although there was a relatively strong case against you for manslaughter, your plea was significant utilitarian value.
I do accept that you are remorseful, shown in part by your plea, but also in relation to how you have behaved in custody: an urgent wish to get on with the rest of your life and put this difficulty behind you.
You are relatively young, and I take that into account in sentencing you. Your rehabilitation must be regarded as of great benefit to the community. I regard your prospects of rehabilitation as being very good and it is most unlikely that you will reoffend. All the features of your background are excellent: you have been of good character; you have a better than good work record; you have strong family and personal support; and all those matters are to your benefit.
As I have already observed, I have read the material submitted on your behalf. I do, however, need to have regard to the principles of punishment and general deterrence. This was a serious crime and a young man is dead. You were not the instigator of the fatal events but nonetheless joined in at an early stage.
If you just stand up, please. You are sentenced to be imprisoned for seven and a half years with a non-parole period of four years. I indicate that pursuant to s 6AAA of the Sentencing Act I would have sentenced you to be imprisoned for ten years with a non-parole period of seven years had you not pleaded guilty. I declare that you have served 396 days by way of pre-sentence detention. I order that the 6AAA indication and the declaration of pre-sentence detention be entered in the records of the Court. You may sit down, thank you.
John Pearce, you are now 67 years of age. I have observed you have had one prior court appearance some years ago for what must have been a minor offence. I do not regard it as being relevant for present purposes. You have pleaded guilty to affray which carries a maximum penalty of five years. On the plea I received references from Ron Lindsay, Alan Antoney, your two daughters Madeline and Rachel, and John Biskupski; a medical report from Dr Vu Dang dated 4 November 2015; and a statement of your service record in the Royal Australian Navy.
The offence of affray is based on unlawful fighting to the terror of the public. The role played by you was totally passive or almost totally passive, but you were present when Robert Dimitrovski was attacking Mr Sebastian and told one of the neighbours that he did not need to call the police. You waved your walking stick at Mr Elia and may have subsequently struck him with it. You were present during the later attack upon him. Your involvement, although not related to the death of Mr Sebastian, or directed to any assault on him, was sufficient to warrant a conviction for affray. The victim impact statement of the neighbour makes it clear that this behaviour in the street was, for them, terrifying.
You had gone on the night to support the brothers who are the sons of Valeria Dimitrovski with whom you have an ongoing relationship. You went on the escapade to help. You did not intend that Mr Sebastian would be attacked in the way he was. You may well have contemplated some force being used to get Mr Sebastian out of the house.
You had come to Australia in 1951 with your parents and two older sisters. You had an unremarkable education and you joined the Navy shortly before your 16th birthday. You remained in the Navy for 12 years and your service was exemplary.
After leaving the Navy you married in 1977 and you have two daughters who give you their unqualified support. You remain in what was the matrimonial home even though you divorced about 12 years ago. You have a good relationship with your former wife. You worked with Customs from 1980 to 2002; you retired from Customs when you were 54 years of age because of the advantages of the superannuation scheme.
After retirement you worked with Winslow Constructions, but have been retired for many years. You help look after your grandchildren. Your health is at best average. You have had heart trouble in recent years necessitating bypass surgery; have osteoarthritis in both knees, you need a walking stick and you may need a knee replacement; and you have an inguinal hernia and you are on the waiting list for an operation in relation to that.
Like Robert Dimitrovski, this was not your fight. I understand that you wanted to help and I accept that you regret the outcome. Although you were the senior member of the expedition by many years, I do not think it was possible for you to intervene in any meaningful way. You are most unlikely to reoffend and your prospects of rehabilitation are excellent.
The public aspect of this case, that is the fighting outside the house, was relatively serious. Your part has been reasonably defined by allowing you to plead guilty to affray. I am satisfied that a custodial sentence is warranted. I am satisfied that any custodial portion is sufficiently satisfied by the time you have already served. The exercise is somewhat complex because I would have ordinarily sentenced you to a head sentence and fixed a non-parole period before which you could not be released on parole.
I am satisfied that 334 days is within the range of available sentence as a straight sentence. I considered that it might be appropriate to have a community corrections component on your sentence and I had you assessed accordingly. You were found to be suitable. I have decided, however, in the circumstances, given your age, your medical condition, your excellent prospects of rehabilitation, your plea of guilty, your remorse, your background and your family support, that it is unnecessary for me to make any additional order by way of supervision.
If you would stand up, please. John Pearce, you are sentenced to be imprisoned for 344 days. Pursuant to s 6AAA of the Sentencing Act, I am obliged to indicate what sentence I would have imposed if you had not pleaded guilty. As indicated above, that is artificial, because you were not originally charged with affray and affray was not an alternative to either murder or manslaughter. But doing the best I can, I would have sentenced you to be imprisoned for 21 months with a non-parole period of 14 months if you hadn’t pleaded guilty. I declare that you have served 344 days by way of pre-sentence detention. I order that my indication pursuant to s 6AAA and the declaration of pre-sentence detention be entered in the records of the court. You may sit down.
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