Watts v The Queen

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2008 0931

PHILLIP DAMIEN WATTS	Applicant
v
THE QUEEN	Respondent

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JUDGE:	NETTLE and BONGIORNO JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 November 2010
DATE OF JUDGMENT:	18 November 2010
MEDIUM NEUTRAL CITATION:	[2010] VSCA 317
JUDGMENT APPEALED FROM:	R v Black, Watts and Black (Unreported, County Court of Victoria, Judge Punshon, 13 November 2008)

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CRIMINAL LAW – Sentencing – Whether applicant deprived of period of pre-sentence detention – Whether sentence adjusted pursuant to principles in R v Renzella [1997] 2 VR 88 – No error demonstrated – Application dismissed – No point of principle.

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APPEARANCES:	Counsel	Solicitors
The Applicant appeared in person via video-link
For the Crown	Mr B L Sonnet	Mr C Hyland, Solicitor for Public Prosecutions

NETTLE JA:

I invite Bongiorno JA to deliver the first judgment.

BONGIORNO JA:

In this appeal the applicant, Phillip Damien Watts, seeks leave to appeal against sentences imposed upon him by Judge Punshon on 20 November 2008. The grounds of his application were canvassed fully in front of Neave JA on the leave application pursuant to s 582 of the Crimes Act which her Honour refused, giving extensive reasons for such refusal.

I do not propose to discuss any of those reasons. Instead I append her Honour's judgment to this judgment. Those reasons amply demonstrate why this Court should not now grant leave to appeal. Indeed, it is to Mr Watts’ credit that he did not pursue his application before this Court.

The matter has now come before this Court on an election by Mr Watts, pursuant to which he provided the Court with a long handwritten letter which set out his real complaint which was not in relation to the sentences which he was nominally seeking to appeal at all, but rather to what he saw as an unjust discrepancy in earlier sentences where he said a period of pre-sentence detention which he had undergone was not taken into account when it should have been. He referred to sentences imposed by the late Judge Morgan-Payler and Judge Sexton.

The Crown has helpfully provided the Court with the sentencing remarks of Judge Morgan‑Payler of 15 April 2005, which are the source of Mr Watts' complaint. In those sentencing remarks it is clear that Judge Morgan‑Payler gave Mr Watts a Renzella[1] consideration in respect of incarceration that he had undergone other than in respect of the case with which Judge Morgan‑Payler was concerned. I append Judge Morgan‑Payler’s sentencing remarks to these appeal remarks which explain

what his Honour did. In particular, paragraphs [43], [54] and [64] of those sentencing remarks demonstrate why the problem complained of by Mr Watts is due to his not understanding what Judge Morgan-Payler and subsequently Judge Sexton actually did and why they did it. In fact, he was given every possible benefit from earlier detention to which he was entitled. I also append Judge Sexton’s sentence of 22 November 2005 for completeness and to enable a full understanding of Mr Watts’ mistaken belief that he has been unfairly treated.

Accordingly, for those reasons and for the reason that there is no sentencing error in Judge Morgan‑Payler’s sentence, Judge Sexton’s sentence, or Judge Punshon’s sentence, this application should be dismissed.
[1]R v Renzella [1997] 2 VR 88.

NETTLE JA:

I agree.

The order of the Court is that the application is dismissed.

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APPENDIX

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 931 of 2008

THE QUEEN

v

PHILLIP DAMIAN WATTS

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APPLICATION FOR LEAVE TO APPEAL
PURSUANT TO S 582 OF THE CRIMES ACT 1958

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JUDGE:	NEAVE JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 August 2009
DATE OF JUDGMENT:	7 August 2009

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr B L Sonnet	Mr C Hyland, Solicitor for Public Prosecutions
For the Applicant	Mr J E McLoughlin	Slades & Parsons

NEAVE JA:

The applicant, Phillip Damian Watts, pleaded guilty to one count of aggravated burglary (count 1), three counts of armed robbery (counts 2 to 4), two counts of intentionally causing injury (counts 5 and 6), and one count of common assault (count 7). The maximum penalties for these offences are as follows:

· aggravated burglary – 25 years' imprisonment

· armed robbery – 25 years' imprisonment

· intentionally causing injury – 10 years' imprisonment

· common assault – 5 years' imprisonment

After hearing a plea in mitigation, the learned sentencing judge imposed the following sentences:

· count 1 – five years

· each of counts 2, 3 and 4 – 40 months' imprisonment

· each of counts 5 and 6 – 20 months' imprisonment

· count 7 – 10 months' imprisonment

Because his Honour made no orders for cumulation, this amounted to a total effective sentence of five years' imprisonment. His Honour fixed a non-parole period of three years' imprisonment. The applicant now seeks leave to appeal against the total effective sentence and the non-parole period.

Circumstances of the offending and of the offender

All of the offences were part of a single incident which occurred on Sunday 1 February 2004. The applicant was accompanied by co-offenders Phillip George Black and Steven John Black, each of whom was sentenced at the same time as the applicant, and two other men. They knocked on the door of a house in McPherson Street, Horsham, where Sean Roberts and his friends Clinton Fisher, Gabrielle Petschel, Aaron Van Braham, Cameron MacKenzie and Matthew Smith were present. Those in the house were aged between 19 and 23 years.

The applicant then asked about Alistair Martine's car, which Watts had previously discussed buying. MacKenzie and Roberts explained to him that Martine had moved out of the house. Watts then became irritated and said, 'No, he's here, fuck this, we're going in'. He grabbed Roberts, pulled a gun from his jacket and pointed it at Roberts' face. Watts pushed Roberts back into the kitchen and the other intruders also pushed Roberts and forced their way into the house. Phillip Black held a baseball bat. These events provided the basis for the count of aggravated burglary (count 1).

Watts then waved the gun around and shouted at people and told them to get down on the floor or he would kill them. Steven and Phillip Black pushed Roberts to the floor. The occupants of the house were terrified and went to the floor, while Watts was shouting at them, 'Where's all your fucking money, where's all your shit?', Newton, one of the two other offenders, threatened Roberts with a knife, saying that he would cut his eye out. Steven Black placed a chair over Roberts so that he could not move and Watts yelled, 'Get your wallet out, give us all your money or we will kill you'.

Watts demanded that Fisher give him his wallet, which was on the kitchen table. When Fisher tried to tell Watts this, Fisher was repeatedly hit with a baseball bat. Fisher tried to convince Watts to look at the identification in his wallet to convince Watts that he was not a person whom Watts had named. Watts looked in Fisher's wallet and removed money from it. He kicked Fisher repeatedly to the head and stood on his head.

Phillip Black accused Fisher of trying to look at their faces and started hitting Fisher with the baseball bat, mostly to the forearms and legs. Steven Black told Phillip Black, 'Back off, stop, hold off, he's had enough' and Phillip Black then stopped. Fisher suffered several injuries as a result of the beating, including a black eye, bumps to his head, bruising to his forearms, hands and legs, and pain in his kneecaps. These events gave rise to the count of intentionally causing injury (count 5). His mobile phone and $180 were taken from him, giving rise to the second count of armed robbery (count 3).

Shortly after this, Roberts was struck to the side of the head with something heavy, and Van Braham was struck on the right temple. He fell forward, striking his left eye on the edge of the table. Van Braham crawled under the table and felt a chair being placed on his back, pinning him down. Those events gave rise to the count of intentionally causing injury (count 6). One of the other victims, Gabrielle Petschel, described Watts as ranting and raving.

The offenders then started to leave the house. Before they left, vegetable oil was poured over Roberts and the person who did this said, 'I'm going to light you up, you dog'. He then held a lighter to the oil, which did not light. Watts threatened the occupants of the house that if they called the police he would kill them.

As the intruders left, Troy Potter, aged 20, was walking towards the back door from the outside and saw three men standing inside the back door. At that time, Potter had one arm in a plaster cast. He was grabbed by the applicant, Steven Black and another man and pushed against an outside wall. His pockets were checked by the assailants, though he later found his wallet lying on the ground. He was threatened and told not to tell the police. He was then released and the assailants ran off. This provided the basis for count 7 (the common law assault charge). After the men had left, Ms Petschel discovered that her Nokia mobile phone had been taken. This gave rise to another count of armed robbery (count 2). Mr Smith's mobile phone was also taken, giving rise to a further count of armed robbery (count 4). Four of the victims, Roberts, Van Braham, Fisher and Petschel, provided victim impact statements to the Court describing how terrified they were by the experience.

At the time the offences were committed, Watts was on bail for serious offences involving assaults on neighbours committed on 22 April 2003 and was also on bail for breaking a door to get into someone's home on 29 June 2003.

As a result of these events, the applicant and Phillip and Steven Black were originally convicted by a jury in the County Court and sentenced by Judge Sexton on 22 November 2005 to a total effective sentence of eight years' imprisonment. Her Honour fixed a new non-parole period of five years and eleven months. Twelve months of that sentence was to be served concurrently with a sentence of two years' imprisonment with a non-parole period of 12 months imposed by Judge Morgan-Payler on 15 April 2005 for offences of burglary and two counts of intentionally causing injury committed on 22 April 2003.

On 5 April 2007, those convictions were set aside and a re-trial was ordered. Following discussions between counsel, each of the men pleaded guilty to the offences described in [1] above.

Mr Watts was aged 39 at the time of sentencing and was considerably older than his co-offenders Phillip and Steven Black. His Honour said that Mr Watts played a ‘particularly active role in the offending’.[2] He has a very long history of offending, which is set out in his Honour's reasons as follows:

A document headed Chronology was tendered and your counsel made submissions speaking to it. He submitted that you have not been shown much leniency by courts in the past and given the very considerable part of your adult life that you have spent in custody, you are close to institutionalisation. You were first imprisoned in 1986 when aged 17. In 1997 you were sentenced to seven years imprisonment for armed robbery offences, recklessly causing serious injury and other offences. You were given a non-parole period of 5 years and were later breached and required to serve the balance.
In early 2005 you were sentenced, by Judge Morgan-Payler, to two years imprisonment with a minimum of 12 months. You were also breached on this matter and required to serve the balance. If you have not served the entire balance, then very close to it as there is still some unexpired portion.
You have been in custody continuously since your arrest on the current matters, that is from February 2004, having been refused parole although about one year of this period has been served by way of pre-sentence detention for the current matters. Your current sentence will expire in mid January 2009.
I can understand that you are very frustrated because you are in gaol. As you have put it, you are ‘totally over it’. You have been addicted to drugs in the past. You began using drugs at the age of 11 and began using heroin when you were about 18. I am prepared to accept that you have been drug free since about 2000. You are currently on a methadone program.
A number of certificates confirming the completion of courses in custody were tendered. Also tendered were testimonials from Sister Mary O’Shanassy, Phillip Graham and also Diane Spicer and Glen Broome from Prison Fellowship. You have succeeded in obtaining a Safety Induction Card, known as a Red Card, from the Housing Industry Association and have been offered employment in the building industry on your release from prison.[3]

[2]Reasons [66].

[3]Ibid [68]-[72].

Sentencing reasons

Because of the applicant's complex history of offending, including his breaches of parole in relation to the seven-year sentence imposed for armed robbery in 1997, and the two-year sentence imposed by Judge Morgan-Payler in 2005, it was necessary for his Honour to consider the issue of totality in some detail. He said:

I was told that the parole periods that I have previously referred to had been cancelled because of subsequent offending and it seems that the current matters have played a part in the breaching of your parole.
I still need to give considerable weight to the fact that you have been required to serve two sentences in full it seems because, at least in part, of the commission of the current offences. You have already served the best part of three years as a result of this parole cancellation.
At the time of the current offending you were on bail.
…
The application of the totality principle weighs very heavily in my view and requires the imposition of what otherwise would seem to be an inadequate sentence. I noted just before I began my sentencing remarks that had there been no successful appeal, and had Judge Sexton's sentence been given effect, you would have been eligible for parole in October 2011. Of course I emphasise 'eligible for parole'. What would have occurred concerning parole would have been up to the Parole Board, as it will be with my sentence.[4]

[4]Ibid [73]-[75], [96].

His Honour said that Mr Watts had a very limited education, had spent time in boys' homes during his childhood, and had had a difficult and disadvantaged upbringing. He noted that the applicant had supervised access to his son, who was in the care of his maternal grandmother, and that he desperately wanted to be involved in his child's life.

His Honour said that Mr Watts had done little to demonstrate remorse. He referred to a report from Carla Lechner, a consultant criminal and forensic psychologist, who expressed the view that Mr Watts suffers from untreated severe and chronic post-traumatic stress disorder developed following his abuse by his father. This had contributed to mood disorder and drug addiction. Ms Lechner also considered that the applicant was clinically depressed. I note that the applicant is no longer addicted to heroin, having been on methadone for some years.

His Honour said that passages contained in the report of Ms Lechner suggested that the applicant presented ‘a very different account of the offending to her and showed very little insight into [his] offending’. However, his Honour said that Ms Lechner had indicated that the applicant demonstrated some ‘victim empathy’ and that he would take this into account.

His Honour observed that the offences were almost five years old, that the applicant had been continuously in custody since his arrest in February 2004, and that he had spent a great deal of time in prison during his adult life. He referred to the applicant's completion of a number of courses while he was in custody. He said that the applicant had had limited opportunity to demonstrate a potential for rehabilitation because of the term which he had spent in prison, but that he had not offended while in prison, had remained drug free, had undertaken courses, and had impressed people that he had the capacity to put the past behind him.

His Honour said that the guilty plea should ‘result in a reduction of about twenty per cent, which, for a late plea, is very substantial’.[5]
[5]Ibid [91].

Grounds of appeal

The applicant relied on the following proposed grounds of appeal:

1.The learned sentencing judge failed to give sufficient weight to the principle of totality in the overall sentence imposed in this case.

2. The sentence was manifestly excessive.

Counsels’ submissions

In essence, counsel for the applicant's contention was that the judge should have imposed a lower total effective sentence and non-parole period because of the principle of totality, the applicant's plea of guilty and the significant delay in sentencing him, as well as other mitigating factors. Counsel relied on Mill v R[6] in support of his submission that the principle of totality required the learned sentencing judge to impose a shorter total effective sentence and non-parole period.
[6](1998) 166 CLR 59.

Counsel submitted that the applicant was first sentenced to adult imprisonment in 1988, and in the 20 subsequent years he had been at liberty for only five years, including two periods of about 12 months in the mid-1990s and the period between December 2001 and July 2003; he was therefore in danger of becoming institutionalised.

The applicant had been remanded in custody in respect of the current matters on 6 February 2004 and had been in custody since that time, a period of five years and six months. When the total time served in custody was taken into account, the sentence was a crushing one which was disproportionate to the gravity of the offending.

Counsel for the applicant submitted that when the applicant was sentenced for these offences in November 2008, he had already served the full term of the two-year sentence imposed by Judge Morgan-Payler on 15 April 2005 and 22 months' imprisonment arising from his breach of parole in relation to the sentence imposed for armed robbery in 1997. Because he had breached parole in relation to Judge Morgan-Payler's sentence, he had lost the benefit of all but two months of Judge Sexton's order that one year of the sentence imposed for the offences now under consideration was to be served concurrently with the sentence imposed by Judge Morgan-Payler. He was also unable to rely on pre-sentence detention relating to the period running from the expiration of Judge Morgan-Payler's sentence, because he was then serving a period of 22 months arising out of the sentence imposed for the 1997 offences. These were all said to be matters which should have been taken into account in applying the principle of totality.

Counsel for the applicant also submitted that the applicant should have received a more lenient total effective sentence and non-parole period because of the long delay in sentencing and the applicant's guilty plea. Initially it was submitted that the applicant would have to serve a longer minimum term of imprisonment than would have been the case under the sentence imposed by Judge Sexton, but that submission was withdrawn.

In support of the submission that the sentence was manifestly excessive, counsel relied on:

· the lesser number of counts on the presentment than those for which the applicant was sentenced by Judge Sexton;

· the five and a half years which had elapsed between the offences and sentencing;

· the plea of guilty;

· the extent to which remorse and progress towards rehabilitation could be inferred from the plea of guilty;

· the applicant's post-traumatic stress disorder; and

· the service by the applicant of most of the preceding year in a ‘locked-down’ environment in Barwon prison.

Because of the complexity of the applicant's history of offending and imprisonment, the Court asked counsel to provide information in advance of the hearing of this application to clarify the date when the applicant was eligible for release and the date of expiry of the maximum term under the Jude Punshon sentence, and to compare it with the maximum period of imprisonment and non-parole period imposed by Judge Sexton.

The table compiled by the Crown, and agreed to by the applicant’s counsel, is set out below.

Count Offence Judge Punshon Sentence Judge Sexton Sentence

1/1 Aggravated burglary 60 months imp 72 months imp

2/4 Armed robbery 40 months imp 48 months imp

3/6 Armed robbery 40 months imp 48 months imp

4/7 Armed robbery 40 months imp 48 months imp

5/9 Intentionally causing injury 20 months imp 36 months imp

6/13 Intentionally causing injury 20 months imp 24 months imp

7 Common assault 10 months imp -

TES 5 years 8 years ( 1 year cumulative with sentence undergoing)

NPP 3 years 5 years 11 months

PSD 354 days 0

Sentence Expiry 22 November 2012 24 January 2016

Earliest Release Date 22 November 2010 21 October 2011

That table indicates that the individual sentences imposed by Judge Punshon were considerably shorter than those imposed by Judge Sexton and that, due to that fact and to the orders for concurrency, the total effective sentence imposed by Judge Punshon would result in the applicant having to serve a maximum term which was approximately three years shorter than would have been the case under the sentence imposed by Judge Sexton, and that the earliest release date was about eleven months earlier than under Judge Sexton's sentence. That difference gave some indication of the weight which his Honour gave to the principle of totality and to the mitigating factors on which counsel for the applicant relied.

The sentencing judge's reasons were clear and comprehensive. The matters that I have already alluded to, and the passage from the sentencing judge's reasons to which I have already referred, make it clear that he gave anxious consideration to the question of totality and to the fact that the applicant has been in custody since February 2004. If the applicant serves the maximum term, he will be released in November 2012, having served a total period of imprisonment of nearly eight years and ten months, when all his sentences are taken into account. He will be eligible for release on parole in November 2010, having served a period of nearly seven years.

These sentences are certainly at the higher end of the range for the relevant offences. However, having regard to the offender's long history of offending, to the fact that these offences were committed while he was on bail for other offences, and to his history of parole breaches, I do not consider it unlikely that he would have received such sentences if he had been sentenced for the offences for which he was sentenced by Judge Morgan-Payler at the same time as he was sentenced for the offences now under consideration. I also note that there was some gap between the various offences committed by the applicant; they were not part of a series of offending in the same way that the offences were in the case of R v Mill on which counsel relied.

Despite the mitigating factors on which counsel relied, I do not consider that it is reasonably arguable that the sentence is manifestly excessive, having regard to the matters to which I have already alluded. All of the matters on which counsel for the applicant relied were taken into account by his Honour. The fact that the applicant will, under the sentence the subject of this application, be eligible for release about a year earlier than would have been the case under the sentence imposed by Judge Sexton reinforces my view that the ground of manifest excess is not reasonably arguable.

For these reasons I would refuse this application for leave to appeal.

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IN THE COUNTY COURT OF VICTORIA

Revised

AT MELBOURNE

CRIMINAL DIVISION

THE QUEEN

v

STEVEN BLACK
PHILLIP BLACK
PHILLIP WATTS

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JUDGE:	HIS HONOUR JUDGE MORGAN-PAYLER
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	Friday 15 April 2005
CASE MAY BE CITED AS:	R v. Black
MEDIUM NEUTRAL CITATION:	[2005] VCC 0300

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Catchwords:

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D Ellwood
For the Accused S Black For the Accused P Black For the Accused P Watts	Dr T Sullivan Mr J V O'Sullivan Mr R D Strong

HIS HONOUR:

1 You can remain seated for the moment; this will take a little while. Following a trial in Horsham in November of last year, where the jury was discharged without verdict, you each were tried in Melbourne and, after a trial spanning some 10 days, you were each acquitted of aggravated burglary, but convicted of the alternative of burglary. The intention alleged being one to assault.

2 You were also, each of you, convicted on counts of intentionally causing injury to Phillip Stearman and to Clayton Bissett, but each of you was acquitted of intentionally causing injury to Janet Kerr. Phillip Watts and Phillip Black were also acquitted of threatening to kill Janet Kerr. For the matters for which you were found guilty, the maximum penalties in each case are 10 years' imprisonment.

3 The facts that I find, consistent with the verdict of the jury, are as follows: on the afternoon of 22 April 2003, Phillip Stearman, his partner Janet Kerr and her son Gavin Payne, were at their home at 59 Broadway, Jeparit. It was Gavin Payne's 11th birthday, and he has his friend, Jason Rowley, then 10, visiting. Also staying at the house on that day was Clayton Bissett, a friend.

4 You three, that afternoon, were at 1 Edith Street, Jeparit. Phillip and Steven Black lived at that address and you, Phillip Watts, were visiting. The rear boundary of 59 Broadway adjoins the side boundary of 1 Edith Street. Stearman and Kerr had been on friendly terms with the Black household, but there had been a falling-out a few months earlier and thereafter there was considerable bad blood between the two households.

5 You, Phillip Watts, were not involved in the dispute, but you were a close friend of the Blacks. At about 5.30 p.m. on 22 April, Janet Kerr was in her kitchen, about to serve a dinner to celebrate her son's birthday. Stearman had come to the kitchen whilst Bissett and the two boys were at the front of the house. On being alerted by the dogs in the house, Stearman looked out the back door and saw the three of you stealthily advancing towards the house across his back yard. None of you was armed.

6 On seeing him, you all began shouting and running towards the house. Stearman slammed the door, told Gavin Payne, who had come to the kitchen, to run, and warned Janet Kerr that, "This is going to hurt". Shortly thereafter, the back door was smashed open and you each entered the house. Janet Kerr told you to get out, but she was ignored. Phillip Stearman had run to the lounge at the front to warn Bissett and the two small boys ran and hid behind a mattress in a bedroom. Thereafter, Stearman confronted you.

7 After a struggle where blows were exchanged, Stearman managed to get free, run from the house and run first to the Post Office and then onto the local police station, where he summoned police assistance. He had received numerous bruises and abrasions in the course of the assault that was carried out upon him.

8 In the meantime, Bissett had come to the assistance of Stearman, who had been struggling then with Steven Black. Bissett noticed you, Watts, about to hit Stearman and he punched you, causing you to drop a metal item that you were then holding. You had been about to hit Stearman to the head from behind with that item. There was then an exchange of punches between you Watts and Bissett, after which you ran from the house, followed by the others. The three of you were then heard outside to be looking for Stearman. As a result of the assault carried out on him, Bissett suffered a laceration over the right eyebrow, which required suturing.

9 After telephoning the police, Kerr and Bissett went to the front of the house to search for Stearman. You Watts, and you Phillip Black, had come around the street to be in front of No.59 Broadway, where you Watts entered the yard and threw a bicycle that was there at the two. You shouted abuse and whilst this was going on, you Phillip Black threw a piece of fence paling at them.

10 Shortly thereafter Stearman returned in the company of Sergeant McLean, who inspected the premises and, on going into the rear yard, was subjected to abuse by the three of you from over the fence of the Black residence.

11 As well as the injuries that I have described as being suffered by the two men, it was clear from evidence before me at the trial that the two young boys who were present in the house at the time of this incident were each terrified.

12 The three of you were arrested by police later that evening. You Steven, and you Phillip Black, as was your right, declined to answer police questions, and you, Phillip Watts, basically denied being involved in the incident.

13
I now turn to matters personal to each of you. Phillip Watts, you are now

35 years old. You have admitted in excess of 160 prior convictions from some 24 previous court appearances, amongst which are numerous convictions for burglary and dishonesty offences. Also included in that sorry list are offences involving violence, ranging from assaults right through to armed robbery. I accept that you have had a most deprived childhood, which has no doubt contributed to your life of almost continual offending. You have had a long-standing problem with the abuse of illicit substances, and which culminated in a long-standing heroin addiction. I accept, however, that in 1997, after you had been sentenced to some seven years' imprisonment with a minimum of five for armed robbery and related offences, that you made a determined effort to turn your life around. Following the death of a friend, you sought all available assistance for your drug problems, and when you were released on parole, you endeavoured, at least for a time, to make something of your life.

14 Your mother, who gave impressive evidence before me, indicated that you came to Nhill, where she then lived, and indicated that you aimed to gain a job, a car, a home and a family unit. You were in a relationship then with a woman who unfortunately was a drug user and the two of you had a child together. That child is now two years of age. You purchased a house in Jeparit and endeavoured to make a life for yourself.

15 I have also heard today from Sister O'Shaughnessy. I have in evidence before me a report from her which was no doubt produced in earlier proceedings. She spoke today of what she described as incredible changes that she had observed in you in the past few years, and I should add that she has been associated with you and working with you for at least 10 years. She describes you as recently having shown a huge growth in maturity. She referred to your child as being a factor that is now most important in your life. That is something that was also confirmed by your mother and is referred to in a report that I will come to in a moment. Sister O'Shaughnessy, however, said that reintegration is going to be, or is, a huge problem insofar as you are concerned.

16 On the occasion of your release on the last occasion, although you endeavoured to create a worthwhile life for yourself, you did not succeed in continuing to remain trouble-free. You became involved in the present matter, and I have been told that you have other matters that are yet to be determined by the courts. Your mother told me that you realise that you have to deal with what has happened, and you are presently very focussed on the welfare of your son. You and the mother of your child have ceased to have any relationship and, as I understand it, the child is presently in care.

17 I have in evidence before me a report from Mr Ian Joblin, a psychologist. In it, he details your very unfortunate background. He notes what he describes as, "symptoms of a concerning personality disorder", which, he opines, explains the psychological basis of your continued offending. He notes your unfortunate propensity to be impulsive and not to consider the consequences of your actions. I could interpose there that that description might very well describe your involvement in the present offences.

18 The material he raises in his report does not mean that you cannot rehabilitate yourself. It does, however, mean that it will require a most concerted effort on your behalf and the support of others, and I interpose that it is clear that you do have the support of others in your life. The materials before me indicate that you are at least starting to demonstrate some considerable insight into your position and you are indeed fortunate to have the continuing support of your mother.

19 Your position is far from hopeless and I find, for sentencing purposes, that you have shown some good prospects of rehabilitation. That of course must be balanced against your background of prior offending and, insofar as the present offences are concerned, the fact that you were by far the oldest, most experienced and, no doubt, certainly in worldly terms, most mature of the three. I find, as a matter of fact, that you played a leading role in the events that took place.

20 Your involvement in these events is explained in part in your interview with investigating police, where you expressed feelings of misguided responsibility towards your younger co-offenders. Similar feelings have brought you to provide some positive assistance to at least one of your younger co-offenders whilst he has been in custody. Considerations of both general and specific deterrence need to be prominent in your case, and further, I am obliged in the sentencing process to consider the protection of the community. Given the recent positive signs, however, the sentences that I will impose will not be crushing and will be designed to encourage you to continue with you with your rehabilitation.

21 Phillip Black, you have admitted prior convictions for burglary and theft in 1997, which convictions related to much earlier offending. You also have a conviction for using amphetamine in 2001, and for intentionally causing injury in 2003. The latter, I am told, relates to a fight that you were involved in. You received a suspended sentence of imprisonment and I note that the operative period for that was still current at the time of the commission of the present offences.

22 You are now 24 years of age and you are unemployed. When you were 14 or 15 your parents separated and you and your brother remained with your father in Jeparit. Your eduction was to Year 10 at Dimboola High, but you had learning difficulties at school, and were nearly 18 on finishing your schooling. You have had but one job for some eight months in a seafood and fish and chip business at Stawell, which employment ended on that business moving to Geelong. You developed problems with the abuse of drugs at about the age of 16, involving cannabis, amphetamines and heroin, which problems became worse on the death of a close friend and then your grandmother, to whom you were very attached.

23 You contracted Hepatitis C and have received brief periods of treatment for anxiety. Against medical advice, you have continued to abuse alcohol. Your father has been unable to work for some time and the home environment is one which includes alcohol abuse, although I note that your father and other family members have provided regular support to you during these proceedings. I have been told that you have been free of alcohol and drugs whilst you have been in custody. You too, and your brother, have been in custody now for some time on unrelated matters.

24 This first period of custody has, according to your counsel, had a very salutary effect upon you. I think it is clear that you have reached an important point in your life. The choices for the future on your release from custody are quite stark. In my view there is cause for some optimism in your case, should you firmly resolve to make use of your time in custody and work at your rehabilitation on release.

25 Steven John Black, your youth and your lesser prior convictions put you in a different position. You were just 18 at the time of these offences and had but one previous court appearance for burglary, theft and possession of a drug of dependence. The fact that fines were imposed indicates that these matters were not of particular gravity. You had the same difficult background as your brother, but you of course were younger when your parents separated. Alcohol has been a negative feature in your life and indeed, as I have noted, in your immediate family. You have, however, the support of both parents, each of whom has been in court today. You completed VCE in 2002 under difficult home circumstances, but were unable to gain entry at university. So consequently you successfully completed a pre apprenticeship course and then commenced a carpentry apprenticeship. That lasted for some months, and that employment ceased upon your being charged with the present and other offences.

26 You too have found your first period in custody as being salutary indeed. You have managed to obtain work as a billet which is to your credit. You have the advantage of youth and apparent intelligence, and have the opportunity, when free to do so, to put this unhappy portion of your life behind you. Dr Sullivan, on your behalf, has submitted that the only practical sentencing option, given your present circumstances, is one of imprisonment, but he submitted that the period ought to be short.

27 It seems to me that in any event, in spite of your youth, your offending is of sufficient seriousness to require such a disposition, namely one of immediate imprisonment. I have not been asked to consider a sentence of youth training, but in any event would not consider such a disposition in your circumstances to be appropriate.

28 In general terms, I regard the crimes that each of you committed as being serious indeed. You all chose to offend in this manner as a means of continuing a dispute. The origin of that dispute is of no relevance. You knew that there was a woman and at least one child present in that house, but you chose to invade it for the purpose of inflicting violence in any event, and you went on, each of you, to be party to the infliction of violence.

29 None of you has demonstrated any remorse for your actions. The sentences that I impose must, amongst other considerations, deter you and other likeminded persons from acting in this manner in the future, and it is appropriate that sentences be imposed that manifest the court's denunciation of conduct involving the violent invasion of people's homes.

30 Each of you has been in custody in respect of other matters since 4 February 2004. On conviction of the present matters, each of your bail was revoked and accordingly the provisions of s.81(1) of the Sentencing Act apply from that date. As to the earlier period of almost 12 months, from 4 February 2004 until 29 January 2005, that you have spent in custody on the other matters, I propose taking that period into account in the exercise of my sentencing discretion.

31
The sentences of the court are as follows: Phillip Damien Watts, on the count of burglary, you will be convicted and sentenced to be imprisoned for

18 months. On Count 2 of intentionally causing injury to Phillip Stearman, you will be convicted and sentenced to 12 months. On Count 4 of intentionally causing injury to Bissett, you will be convicted and sentenced to be imprisoned for 12 months. I direct that three months of the sentence on Counts 2 and 4 be cumulative upon each other and upon the sentence imposed on Count 1. Total effective sentence is two years. I direct that you serve a minimum of 12 months before being eligible for parole. I declare a period of 80 days as being reckoned as presentence detention and direct that those particulars be entered in the records of the court. I order, pursuant to s.16(3)(b) of the Sentencing Act, that these sentences be served cumulatively upon any period of imprisonment that you may be required to serve in custody on cancellation of any parole order.

32 I interpose, Mr Watts; that will depend upon whether in fact you were undergoing a parole order at the time of the commission of these offences.

33
Phillip George Black, on Count 1 of burglary, you will be convicted and sentenced to being in prison for a period of 12 months. On Count 2 of intentionally causing injury to Stearman, you will be convicted and sentenced to be imprisoned for 9 months, and on Count 4 of intentionally causing injury, you will be convicted and sentenced to be imprisoned for nine months. I direct that three months of the sentences on Counts 2 and 4 be served cumulatively with each other and the sentence imposed on Count 1. That makes a total effective sentence of 18 months. I direct that you serve a minimum 14 months before being eligible for parole. I declare a period of

75 days as being reckoned as already having been served and direct that that declaration be noted in the records of this court.

34
Steven John Black, on Count 1 of burglary, you will be convicted and sentenced to be imprisoned for nine months. On Count 2 of intentionally causing injury, you will be convicted and sentenced to be imprisoned for six months, and on Count 4 of intentionally causing injury, you will be convicted and sentenced to be imprisoned for six months. I direct that three months of the sentence on Count 2 be served cumulatively on Count 1. Your total effective sentence is one of 12 months' imprisonment. I declare a period of

75 days to be reckoned as having been already served as presentence detention and direct that that declaration be noted in the records of the court.

35 In respect of Phillip and Steven Black, application has been made for a saliva sample under s.464ZF(2) of the Crimes Act. Having considered the seriousness of the circumstances of the offending, the previous convictions of each of you, and having formed the view that the making of such an order is in the public interest, I propose making orders that each of you provide such a sample.

36 In respect of you, Phillip Damien Watts, application has been made for a retention order, and on the same grounds as I have expressed for your two co-prisoners, I also will make such order.

37 Gentlemen, is there - yes, Dr Sullivan?

38 DR SULLIVAN: Yes, Your Honour. Your Honour has insofar as the
s.18 declaration is concerned, Your Honour has taken the one day initially, and then the - I wasn't aware of this in the plea, but the bail not being continued at the trial stage and they've been in custody so you've added those together to get 75 days - - -

39 HIS HONOUR: Their bail was continued throughout the first trial, throughout the present trial, but upon conviction the period under s.18 I calculated, unless anybody has a submission to the contrary, as the (indistinct) period - - -

40 DR SULLIVAN: No, I'm not taking issue with that - - -

41 HIS HONOUR: - - - commencing to run from the date of conviction until today.

42 DR SULLIVAN: Yes. No, there's no issue with that aspect, Your Honour. Your Honour, where I am concerned is this, that if it was Your Honour's intention that in the sentences that you've given, that those were the appropriate sentences of nine months - I'm talking about my client now - nine months on the first count, six months on the second and six months on the third; they were the appropriate sentences.

43 HIS HONOUR: Dr Sullivan, were it not for the fact that I exercised my discretion to take into account time that your client, and indeed the three prisoners had been in custody in respect of unrelated matters that have yet to be resolved, then those sentences would have been considerably different.

44 DR SULLIVAN: Yes. I think it's in that regard, Your Honour, that - if I can just raise this matter, if Your Honour will bear with me, it's this, that Mr Steven Black has been in custody since 3 February of last year - - -

45 HIS HONOUR: The 4th I think.

46 DR SULLIVAN: Sorry, 4 February last year, and then there's a period of three months earlier on with respect to those other offences. Yes, sorry, from
5 October, the 10th of December.

47 As I understand it, and I'll stand to be corrected obviously, if Your Honour has taken into account those times, there can't be a double-up of those times, so that if, down the track he were to be convicted of an offence, then the issue of what Your Honour has done will be relevant to what credits he can or cannot receive.

48 HIS HONOUR: It will.

49 DR SULLIVAN: So, do I take it that Your Honour is saying that in taking into account the period of 5 October to 10 December and from 4 February 2004 up until now less 75 days you've taken into account, which means that from today, if down the track he was convicted of an offence, the judge would not be entitled to consider those periods and therefore the effective sentence that Your Honour has given with respect to my client is 12 months plus all those periods, so the - - -

50 HIS HONOUR: There's the s.18 period, I have declared - - -

51 DR SULLIVAN: No, you've declared that - - -

52 HIS HONOUR: - - - and specified and set out as I'm required to do by the section. As to the other periods that he has spent in custody between the commission of these offences and sentencing today, I have taken into account in the exercise of my discretion.

53 DR SULLIVAN: Yes.

54 HIS HONOUR: In those circumstances, I do not understand either the Act or the authorities on this point to require me to specify and spell out in the same way as I am required to do for a declaration under s.18, but I make it clear that in the case of each of the three prisoners, I have taken those periods into account in arriving at the appropriate sentences here.

55 DR SULLIVAN: Therefore what that means is that - - -

56 HIS HONOUR: I don't propose to go on now and compound and do sums and say what the sentences would have been had they not been in custody on these matters.

57 DR SULLIVAN: The only reason I raise it, Your Honour, I've got to explain the sentence to my client, and in doing so - - -

58 HIS HONOUR: Yes, you're entitled to tell him that I have taken into
account - - -

59 DR SULLIVAN: I know that.

60 HIS HONOUR: - - - the periods that he has spent in custody.

61 DR SULLIVAN: I appreciate that, Your Honour, but I have to explain to him the significance of what Your Honour has said and the only way I can do that is to say, if by virtue of your pursuant to Heaney's case, saying what you're saying, because as Your Honour is aware, those days can't be taken into account twice.

62 HIS HONOUR: No.

63 DR SULLIVAN: So, effectively, whilst Your Honour hasn't done the arithmetic, the sentence of today is that from today he does 12 months less 75 days, and then any sentence, if he were to be convicted, that he get in relation to any other trial, would mean that - - -

64 HIS HONOUR: As I understand it, until the other two matters that I think he awaits, if he is convicted on either of those, he will not be credited with any presentence detention.

65 DR SULLIVAN: At all. I'm talking about - - -

66 HIS HONOUR: I having taken it into account here.

67 DR SULLIVAN: Yes, and so, yes, Your Honour, I just needed the clarification. If Your Honour please, now - - -

68 HIS HONOUR: It's not an easy area, Dr Sullivan - - -

69 DR SULLIVAN: No, I know that, but it's important that I - - -

70 HIS HONOUR: - - - and I will not finalise the formal side of my sentencing process, and the documentary side of the sentencing process for a few days, and give all parties liberty to mention the matter in front of me should anybody perceive a problem in that way that I've gone about the imposition - - -

71 DR SULLIVAN: Can I just indicate this to Your Honour, and I don't mean
to - I'm not - please, I'm not being rude about Your Honour - - -

72 HIS HONOUR: No, I follow that.

73 DR SULLIVAN: I, as I see it, I will be advising my client that in effect the time that he's been in custody will never be credited in relation to anything else, and that, effectively therefore, the sentence that he's been given is a sentence of over two years without a minimum being set. Now, I just remind Your Honour effectively that's - no, well, Your Honour, that's the effect of your sentence and it's better for me to say it now, rather than - - -

74 HIS HONOUR: The effect of the sentence - I've fixed a sentence where I can't fix a minimum.

75 DR SULLIVAN: That's not correct; 12 months, you can fix a minimum.

76 HIS HONOUR: All right.

77 DR SULLIVAN: Well, Your Honour hasn't fixed a minimum.

78 HIS HONOUR: I have not fixed a minimum. If my sentence were other, as I understand my taking into account the time he has spent in custody, although not time related to these matters, I, in the exercise of my discretion, I allow for that in the sentence, so I have allowed for that in the sentence that I have already imposed.

79 DR SULLIVAN: Yes, and the - - -

80 HIS HONOUR: Now, had I not exercised that discretion, then clearly his sentence would have been very much greater, I have not done the sums. In those circumstances, clearly you might expect a minimum would have been fixed.

81 DR SULLIVAN: Can I just indicate, Your Honour, that the discretion insofar as the use of the discretion insofar as a prisoner is concerned, is to clearly provide a benefit of the - give him the credit for those days that they've been in custody that aren't part of s.18. However, if the net effect of it is - - -

82 HIS HONOUR: Because otherwise it might operate very much unfairly against - - -

83 DR SULLIVAN: If that person is acquitted subsequently, yes.

84 HIS HONOUR: - - - prisoner who is subsequently acquitted.

85 DR SULLIVAN: If however, in doing so a sentence effectively, I'm talking about effectively, because you've taken into account it's over two years and he's a young offender and he doesn't get a minimum set, then I raise it now because I'm not - Your Honour may not have - no, I'm not - Your Honour may not have intended an effect of an effective sentence of over two years for a young offender and no minimum has been set, and rather than my not mentioning it now, because sometimes things do slip through without necessarily the repercussions of them, and everyone is - - -

86 HIS HONOUR: I will tell you and put it on the record, having exercised my discretion, taken into account the periods spent in custody that do not relate to these matters, and reduced the sentence accordingly - - -

87 DR SULLIVAN: Yes, Your Honour.

88 HIS HONOUR: I then came to a sentence where I considered it inappropriate to fix a minimum term.

89 DR SULLIVAN: As Your Honour pleases.

90 HIS HONOUR: It's all right. Had he not spent that time in custody, then one can probably sit down and do some sums to work out what the sentence might well have been, and in those circumstances it might well have been reasonable to expect a minimum would have been fixed.

91 DR SULLIVAN: If Your Honour pleases.

92 HIS HONOUR: Yes.

93
MR O'SULLIVAN: Your Honour, with the 75 days, is that calculated from

29 January this year until today?

94 HIS HONOUR: Yes.

95 MR O'SULLIVAN: Sir, I would calculate that to be 77 days, and then there was the one day he was remanded overnight initially, so, by my calculation, I would have made it 78 days, Your Honour.

96 HIS HONOUR: Certainly, I haven't got my sums with me at the moment.

97 MR O'SULLIVAN: So, three days in January, 29, 30 and 31.

98 HIS HONOUR: Yes.

99 MR O'SULLIVAN: I thought Your Honour said bail was revoked on the 29th.

100 HIS HONOUR: If I did, I was in error. They remained, although formally throughout the first trial and throughout the second trial, their bail remained in tact until such time as they were convicted.

101 MR O'SULLIVAN: So, did - from 31 January would be the 75 days; is Your Honour allowing the one day as well?

102 HIS HONOUR: Would you say that again.

103 MR O'SULLIVAN: The 75 days would be from 31 January to today.

104 HIS HONOUR: Yes.

105 MR O'SULLIVAN: My understanding was there was one day when they were initially - or when Phillip Black was initially arrested, one day in custody.

106 HIS HONOUR: As I understood it from the last occasion we were gathered, any time then did not amount to a day, and if you have a look at the Act, again, if any party wishes to remention this matter, I'm quite happy if I'm persuaded there was at least a day served in there on that occasion, well then, of course, yes, I will do so - - -

107 Thank you, Your Honour.

108 HIS HONOUR: - - - and I will not finalise this matter for perhaps a week, to give parties time to consider it and raise any matter at a convenient time.

109 MR O'SULLIVAN: Thank you, Your Honour.

110 HIS HONOUR: Anything else, gentlemen?

111 MR O'SULLIVAN: I apologise for - - -

112
HIS HONOUR: No, that's fine. Thank you for your assistance.

Adjourn the court.

- - -

IN THE COUNTY COURT OF VICTORIA

Revised

AT MELBOURNE

CRIMINAL DIVISION

THE QUEEN

v

STEVEN JOHN BLACK
PHILLIP DAMIAN WATTS
PHILLIP GEORGE BLACK
CHANNON JAY NEWTON

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JUDGE:	HER HONOUR JUDGE SEXTON
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	22 November 2005
CASE MAY BE CITED AS:	R v. Black
MEDIUM NEUTRAL CITATION:	[2005] VCC

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Catchwords:

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms F McNiff	O P P
For Accused Steven Black For Accused Damian Watts For Accused Phillip Black For Accused C J Newton	Mr L K Barker Mr C J Pearson Mr A C L Marshall Mr J Sutton

HER HONOUR:

1 THE PRESENTMENTS: - On 6 July 2005, shortly before the trial in this matter was due to start, Channon Newton pleaded guilty to one count of aggravated burglary, four counts of armed robbery, two counts of attempted armed robbery, seven counts of threatening to inflict serious injury, three counts of intentionally causing injury and one count of attempted robbery.

2 The trial proceeded in respect of Watts and Phillip and Steven Black and after fourteen hearing days you were all found guilty of one count of aggravated burglary, four counts of armed robbery, one count of attempted armed robbery, seven counts of threatening to inflict serious injury, two counts of intentionally causing injury and one count of attempted robbery.

3 I upheld a submission that there was no case to answer in respect of Count 2 on the trial presentment, which was an attempted armed robbery on one Shaun Roberts. A verdict of acquittal was brought in by the jury in respect of Watts and Phillip and Steven Black on that count.

4 Newton pleaded guilty to that count before evidence had been given and before any analysis of that evidence had been undertaken. Newton also pleaded guilty to intentionally causing injury to Shaun Roberts, on which count Watts and Phillip and Steven Black were found not guilty by the jury. Newton was not presented on the count of threatening to inflict serious injury on Troy Potter.

5 With those exceptions, Newton pleaded guilty to all counts on which Watts, and Phillip and Steven Black were later found guilty. These I detail below by reference to the trial presentment and the Newton presentment.

6 The maximum penalties applicable to these counts are:

For aggravated burglary and armed robbery, 25 years’ imprisonment.
Attempted armed robbery, 20 years imprisonment.
Threatening to inflict serious injury, five years imprisonment.
Causing injury intentionally, ten years imprisonment.
Attempted robbery, ten years imprisonment.

7 THE OFFENCES: The summary for the plea of Newton was read into the transcript on 7 September 2005. Any references contained in that summary to Watts and Phillip and Steven Black are subject to the evidence and the verdicts on the trial, and to any findings I might make.

8 On 1 February 2004, a number of young men and one young woman were at the house of Shaun Roberts in Horsham. The four prisoners and perhaps at least one other male, who has never been identified or charged, arrived at the house in the early evening. You all entered the house without permission, pushing past the two young men who had come to the door. At the time you, Watts, were brandishing a pistol, and you, Phillip Black, had a baseball bat (aggravated burglary, Count 1, trial presentment, Count 1 Newton presentment).

9 You, Watts, waved the gun around, threatening those present and told everyone to get on the floor. The occupants of the house did just that. You were all participating in these threats by your presence and encouragement (threats Counts 15-20 trial presentment, Counts 12-17 Newton presentment).

10 A general demand was made by you, Watts, saying you would kill them all if they did not give you everything they had. Mobile telephones, wallets and money were stolen by one or all of you acting together (Armed robbery, Counts 4-7, trial presentment, Counts 4-7 Newton presentment).

11 There were two attempted armed robbery charges. In the first instance, when one young man said he only had a small amount of money, he was told to keep it (Count 3, trial presentment, Count 3 Newton presentment)..

12 In respect of the other attempted armed robbery, Newton pleaded guilty to this count in respect of Shaun Roberts (Count 2, Newton presentment). I found there was no case to answer in respect to this count, Count 2 on the trial presentment, once the evidence had been given.

13 You, Watts, hit Clinton Fisher with a baseball bat on the hands, forearms, shins and knees. You also stomped on his head. You, Phillip Black, also hit Clinton Fisher with the baseball bat (intentionally causing injury, Count 9 trial presentment, Count 9 Newton presentment). Fisher sustained bruising, cuts and swelling in the areas where he was hit.

14 Aaron Van Braam was hit on the side of the head with something wooden. He was also pushed from behind so that he hit the corner of his eye on the edge of the table. He was also kicked in the back and had a chair put over him (intentionally causing injury, Count 13 trial presentment, Count 11 Newton presentment). Van Braam sustained bruising to his head and back.

15 You, Newton, also pleaded guilty to two counts in respect of Shaun Roberts, on which counts the other three prisoners were found not guilty by the jury. Count 8 on the Newton presentment of threatening to inflict serious injury arose out of you, Newton, being identified as holding a knife to the face of Shaun Roberts and saying "don't look at us or I'll cut your eyes out". Count 10 on the Newton presentment is a charge of intentionally causing injury to Shaun Roberts, which was based on him being struck on the side of the head whilst lying on the ground, although he did not know by whom or what he was struck.

16 Another young man by the name of Troy Potter arrived at the house just as you were all leaving. I find that you, Watts and you, Steven Black, grabbed him and put him up against the laundry wall. A threat was made to him, using his name and, that as it was known where he lived, if he went to the police, he would be found by the person making the threat. I am unable to make a finding as to who specifically performed the act of the attempted robbery or who uttered the threat, after the direct involvement of Watts and Steven Black. Troy Potter's evidence ultimately that he was unsure who the perpetrator was, having originally stated it was you, Watts. However, by their verdict, the jury have found you Watts, and you, Phillip and Steven Black guilty, and you, Newton, have pleaded guilty to the attempted robbery on Troy Potter (Count 21, trial presentment, Count 18 Newton presentment). I find it was open on the evidence for the jury to conclude that it was one or more of your group who performed the acts and that you were all acting together in this criminal activity against Troy Potter, as you were for the activity inside the house. The threat to Troy Potter is Count 22 on the trial presentment. Newton was not presented on that count.

17 FINDINGS: In summary, this was a series of acts with no purpose other than to terrorise the occupants of the house. I find that the main target was Alistair Martion, with whom you, Watts, had discussed buying a car. When the sale did not proceed, you, together with your mates, decided to pay him a visit. He was no longer living at the premises, but you did not accept this information when told at the door, instead drawing a gun and forcing your way into the house. The acts which followed, whether for a few or 20 minutes, did strike terror into the occupants, some of whom knew one or more of you, and others, who were literally passing through and had the bad luck to be at that house at the very time you came calling.

18 On discovering Alistair Martion was not present, you did not leave, but proceeded to threaten, cause harm and steal items belonging to the people with whom you had no quarrel. It was a pointless, cowardly and vicious attack.

19 There are a number of aggravating aspects. The production of a gun by you, Watts, is most serious. I find all of you knew of its existence and encouraged his use of it by your continued presence and other acts of violence or dishonesty performed at the time that he was brandishing the gun. The use of the baseball bat by you, Phillip Black, is in a similar although less serious category; that is, you all knew about it and its use. You, Newton, have admitted to producing and threatening Shaun Roberts with a knife, which is an aggravating aspect of that crime.

20 For you Watts and Phillip and Steven Black, there is a further aggravating aspect, that you were each on bail for charges arising out of another violent home invasion, committed on 22 April 2003. You, Watts, committed another offence involving breaking a door to get into someone else's home on 29 June 2003, for which you were also on bail at the time of these offences.

21 In respect of all of those matters, whilst they are, of course, not prior convictions and I do not take them into account, you, Watts and Phillip and Steven Black have now been to trial and been found guilty and sentenced in respect of various counts by His Honour Judge Morgan-Payler. You, Watts, have also been to trial and been sentenced by His Honour Judge Gebhardt in respect of the June 2003 matter. You may also have been subject to a parole order at the time of this offending.

22 You, Steven Black, were on a suspended sentence imposed in October 2003 at the time of this offending. You, Phillip Black, were also on a suspended sentence imposed in January 2003 at the time of this offending, but breach proceedings have already resulted in that sentence being served.

23 IMPACT ON THE VICTIMS: The impact on the victims has been devastating. Those from whom I received victim impact statements are all terrified that on your eventual release from custody, you will return to your homes in the Jeparit area and you will either come after them for their having given evidence against you, or they fear they will innocently be caught up again in some violent activity of your making, with which they have nothing to do, other than being in the wrong place at the wrong time. I am not saying that I think this will happen, but that is the level of fear that your crimes have created in these innocent victims.

24 I do not propose to give further details of the individual victims' trauma, because I think to do so would be a further intrusion of their privacy and fears. None of them has requested that any part of their impact statements be read out in court. However, I take their statements very much into account in sentencing you and note that all are now fearful of living in or even passing through the area with which they have been associated all of their young lives.

25 MATTERS RELEVANT TO ALL THE PRISONERS: There was some delay in this matter coming to trial. The case was due to be heard before me in the Hamilton County Court in February 2005, only twelve months after the events. The trial had been shifted from Horsham because of the perceived notoriety of you, Watts and Phillip and Steven Black, such that it was feared that a fair trial could not be had. The facilities at the Hamilton County Court were woefully inadequate for a trial with what was at that time four accused, and also you, Steven Black, had engaged new solicitors and counsel only on the day the trial was due to start, after some assistance was given for you to do so.

26 As a result the trial was adjourned and listed before me in July in the Melbourne County Court. After some preliminary matters concerning the possible fitness of Newton for trial, Newton pleaded guilty and the trial began for the remaining three of you. Verdicts were taken on the 27th of July and the four pleas were heard on the 7th and 8th of September 2005. These sentences now come to be imposed in November 2005, because of a necessary adjournment to obtain a pre-sentence report and an eligibility report for a Justice Plan, both for Newton.

27 In so far as the delay from February to July, and from then to November has affected your positions when it comes to sentence I take that delay into account.

28 Deterrence is an important matter for each of you. I must, by my sentence, seek to prevent other men from invading the privacy of someone else's home with violence and with weapons. I must also, by my sentence, seek to deter each of you individually from committing crimes of any sort in future. I note that you, Phillip and Steven Black, were not deterred by your suspended sentences from committing further crimes. You wasted the opportunity that the court had given each of you.

29 I find that you Watts and Phillip and Steven Black have shown no remorse for your actions on this evening. With you, Steven Black, there is a qualification to that. There is evidence that you said, "Enough" to the person or people hitting Clinton Fisher. The jury did not acquit you of this count and consequently they must have been satisfied, beyond reasonable doubt, that you did not withdraw from the joint criminal enterprise. However, accepting the evidence that you did say that, I am able to find that you, at least at that point, showed a level of remorse and concern for the victim, Clinton Fisher.

30 A lack of remorse is, however, also demonstrated by you, Steven Black and by you, Phillip Watts, by giving lying accounts in your record of interview, telling the police that you were not present during the incident. You conceded at the trial that these were lies and that you were indeed present, although you argued before the jury that there were reasons other than your awareness of your own guilt, which may have led you to lie to the police.

31 Phillip Black, your lack of remorse is also demonstrated by the evidence you gave on the trial to the effect that you, your brother and Watts did nothing wrong while you were there, that you did not see any weapons other than the knife held by Newton, and that it was Newton and another person who was present, who went berserk, and that the three of you simply left. The jury clearly rejected this version by their verdicts.

32 On the plea there was some discussion as to the declaration that I would otherwise have made as to pre-sentence detention for you, Watts and Phillip and Steven Black, for these matters for which I am to sentence you. That discussion appears on the transcript and I will not repeat it here.

33 I confirm my view that His Honour Judge Morgan-Payler, on his sentence of 15 April 2005, took into account all of the time that you had served that would otherwise have been relevant as pre-sentence detention for these matters and reduced your sentences accordingly. Consequently, in accordance with the authorities, which I will footnote to these sentencing reasons, I am not able to take into account any pre-sentence detention. In my view to do so would be to count twice those days served.

34 I accept that the events were one continuing criminal enterprise in a short space of time. I propose, therefore, to order partial concurrency, bearing in mind s.16(3)C of the Sentencing Act as relevant in the case of Watts and Phillip and Steven Black.

35 I will now turn to each of you individually and the order will differ from the presentment.

36 Phillip Watts, I find that you were the instigator and took the others along with you. It was because of your perceived issue with Alistair Martion in respect of the car that led to the events taking place. You are the oldest of the group and should have known better. Clearly, at that time of your life, you did not know any other way of dealing with people you perceived as troubling you, than via violence and aggression. Your possession and use of a gun is a most serious aspect of your crimes. Your attack on Fisher was cowardly and vicious. You struck terror in the minds of the victims for no reason.

37 You are now aged 36, you were supported in your trial by your mother, who also gave evidence on your plea. The most important person in your life is your two and a half year old son. He lives in Melbourne with his maternal grandmother, as neither you nor your former partner are able to care for him. In your case you had cared for him as a baby whilst you were still in that relationship, but whilst your partner was still using drugs. You went into custody when your son was only a year old and I accept that you have not received the proposed visits in gaol by your son with a Department of Human Services representative as often as you were meant to. Your son is your future and I accept that it is the thought of being with him and being a father to him that sustains you during your imprisonment. I have read Mr Joblin's report, which details your difficult background and childhood and describes the behavioural problems involving early expulsion from school and periods spent in boys' homes in New South Wales.

38 You have a large number of prior convictions, approximately 170, including a number for dishonesty and violence and in particular for armed robberies, which were also in people's homes, for burglary, theft and possession of a pistol. There are also a number of drug related matters. You have had drug problems for a number of years. However, after your release in December 2001, following the longest sentence you had received to that time of seven years with a minimum of five years for two armed robberies in 1997, you made a determined effort to stabilise your life and decrease your drug use. It was then that you formed the relationship that produced your son and with your partner bought a house in Jeparit, which is where apparently you met the Black brothers. For a time your life was stable, but the relationship broke down because your partner continued to use drugs. You maintain that you are not using drugs in gaol and I accept that you have increased your methadone to avoid the temptation. You have been given responsibility as a billet whilst in custody and you have apparently assisted Steven Black, whilst he has been in custody, as he is the youngest of your co-offenders. I have read Sister O'Shannessy's letter and also the evidence she gave on your plea before Judge Morgan-Payler. She attests to a change in your outlook. If this is right, then your prospects for rehabilitation are better than would seem from your record, and particularly from the series of offences committed in 2003/2004.

39 You are apparently eligible for parole in January 2006, following on His Honour Judge Morgan-Payler's sentence. It will, of course, be necessary to set a new non parole period today.

40 It was urged on me on your behalf that despite your being the oldest and with the largest number of prior convictions and with the most significant role in the events that there should be a measure of concurrency and that I should not impose a crushing sentence. Whilst I do not give up hope for your rehabilitation, it will be a difficult process for you. At the age of 36 you must change your criminal ways or this is to be the life you will lead and you will therefore be no part of your son's life.

41 While the sentence I impose on you must be a stern and substantial one, I do not intend to crush all hope in you for a future with your son, nor to decrease any prospects for your rehabilitation. I will return to sentence you at the end of these remarks.

42 Steven Black, you are now aged 21 and were 19 at the time of offending. Your youth is therefore a relevant factor and it could be said to still be the paramount factor in sentencing you. I find that the evidence as to your role in these events was scant but you were specifically identified as putting a chair over Shaun Roberts, which although not forming a count on the presentment was nevertheless consistent with your full participation in the criminal acts of the others as the jury has found. It may be that the evidence is scant because you did not do anything else or it may be that it is scant because no one was able to identify you or actually see you doing anything.

43 I am of the view that there was sufficient evidence for the jury to find that you were a full participant, acting together with the others throughout, and that you only desisted at a time when Clinton Fisher was being beaten by two of your co-accused. I sentence you on that basis.

44 Beyond that and the placing of the chair over Shaun Roberts as I have described, I do not find you committed any particular acts until you were involved with Troy Potter on the way out of the premises. Of course, the principle of acting together means you are equally liable for the acts of the others.

45 You and your brother, Phillip Black, have been supported by your father in court every day of this matter. Your girlfriend has also supported you but from outside the court, not being able to bring herself to come into the court room. You, Steven Black, are the youngest of three children and your sister, Nicole, was also here for your plea and of course your brother, Phillip, is one of your co-offenders.

46 Your father has an acquired brain injury after a car accident in the late 1970s. The effect of this was compounded by a stroke in 2002. He also suffers from heart disease and degenerate lumbar disease. Your parents' relationship was apparently a turbulent one with domestic violence and alcohol abuse. Your mother left the marriage and went to Melbourne with a new partner when you, Steven Black, were in Grade 6 and you, Phillip Black, were aged 14 to 15.

47 You, Steven Black, had no real contact with her for a period of time while you, Phillip Black, lived with her for a while feeling torn between your parents and torn apart from your brother. Nicole Black had already left home and did commence a tertiary degree which she has now completed and she works in medical sales. You, Steven Black, were therefore left alone with your father who was on a disability support pension and who was dependent on you and had a limited ability to guide and nurture you. Phillip Black soon returned to Jeparit and the same situation then applied to him.

48 You, Steven Black, completed your VCE at Rainbow Secondary College and obtained excellent results in art and visual communication studies. I was shown a folio of your work which also contained some work of you, Phillip Black. You are both obviously talented in painting and drawing.

49 You have both been users of cannabis but when a close friend died of a heroin overdose in 1999 this had the effect of decreasing your drug use, Steven Black, while you, Phillip Black, began to use amphetamines and heroin sporadically. Both of you felt some responsibility for having failed to prevent your friend's death. I accept that you are both drug free while in custody.

50 After your VCE, Steven Black, you began an apprenticeship in the building industry. This was interrupted on an occasion on which you were remanded in custody. Given your obvious intelligence and capacity to achieve, it is a great pity that you began this series of offending. In custody you have undertaken art courses and have been given the responsibility of a billet. You have admitted six prior convictions from three court appearances, the most relevant and serious being for aggravated burglary in October 2003. You have another trial beginning tomorrow in this court. After that, you need to decide how you see your life progressing. You are a young man and you should be looking to stop this cycle of offending.

51 Upon release, you wish to leave the Jeparit area and your sister will accommodate you initially in Melbourne. You have previously had employment through her and you apparently do not smoke cannabis when you are away from the Jeparit/Rainbow area. Given the views I have previously canvassed from the victims, it will be a good thing for all concerned if you do leave the area. Your youth and reasonably good prospects of rehabilitation will be taken into account in the sentence I impose. I will return to sentence you at the end of my remarks.

52 Phillip Black, you are now 24 years old and you may still be considered young enough to have rehabilitation as a most important aspect of your sentence. Your role included carrying a baseball bat into the house and using it to beat Clinton Fisher, as well as being a full participant in all of the crimes on which the jury has found you guilty. Your attack on Fisher was cowardly and vicious and the whole event was a pointless exhibition of mindless violence.

53 I have already referred to your background in the remarks I made in respect of your brother. I add that apart from losing your close friend to drugs, your grandmother passed away within 18 months of that event and this was apparently another close relationship loss to you. You, Phillip Black, had been a good basketball player but you lost interest and you also lost any educational opportunities with your move to Melbourne and back. You completed Year 10 but your only employment has been in a fish and chip shop for a period of time.

54 You have had some health problems with hepatitis C in 2000 due to your intravenous drug use and you were prescribed medication for mild anxiety in 2003, although I am told you continued to use alcohol at the same time.

55 You have a very close relationship with your sister, Nicole, who assisted you to attend a clinic for detoxification in Melbourne. You do not consider Jeparit a good environment for you and I would have to agree. It will indeed be hard for your father if both you and Steven Black leave the area but it seems to be the best for everyone else as I said before.

56 During your time in custody you have moved from Port Phillip to Fulham Prison which means you have moved away from Watts but also from your brother, Steven Black. You have also been given the position of responsibility of a billet and I accept that you have undertaken courses in respect of anger management, which I consider to be very important in your case, and also industrial cleaning and food handling.

57 You have admitted to five prior convictions in three court appearances between 1997 and 2003, all in the Horsham area and including dishonesty and violence. Like your brother, you need also to decide how you see your life progressing from this period on. Your relative youth and reasonable prospects of rehabilitation will be taken into account in the sentence I impose. I will return to sentence you at the end.

58 Channon Newton, you are in a different position to the others involved in these crimes. You pleaded guilty and although this was on the day the trial was due to start, I still give you full credit for having admitted your own crimes and admitted your participation in the crimes of the others. I sentence you on the basis of the summary given by the prosecutor on your plea. I also give you credit for the fact that your plea of guilty saved the cost of a trial with four rather than three accused. I accept also that your plea of guilty shows remorse for having committed the offences. I note also in your favour that you admitted your activities to police in your second record of interview undertaken shortly after the first one. I can tell you that the sentence that I intend to impose is much less than would have been imposed had you been found guilty after a trial.

59 Your mother gave evidence on your plea detailing your background. You are her second child of two sons from her first marriage. There are three younger siblings from her second marriage and one older sister from the first marriage of your stepfather. You are now aged 26 years.

60 You are very close to your stepfather and your mother and you rely on them both for any major decision making. At the start of the trial, before you pleaded guilty, you were assessed by Dr Grech, a psychologist, and he found you to have a full scale IQ of 71 which puts you in the range of low to average overall intellect. You had previously been assessed at the age of 14 as having an IQ of 84. It is thought that stress may have had a negative effect on your assessment on the morning your trial was due to start. It is probably because of what I accept is your low to average intellect that you are very dependent on your parents and you were also dependent on your partner of six years with whom you had two daughters.

61 I received two reports for your sentence, an assessment as to your eligibility for a justice plan and a pre-sentence report. These indicate that you have recently separated from your partner which is not an ideal situation for you. Your mother described that relationship as "making you whole". It seems that you currently live with your older brother. The report as to the justice plan says that you are not eligible. I must therefore look at some other way of dealing with you for these crimes.

62 The pre-sentence report helpfully canvasses community based dispositions but I do not consider these appropriate for the reasons I will give shortly. You have 50 prior convictions from six appearances, all in the Horsham area between 1995 and 2001. None of these involved the co-accused in these matters.

63 You know the Blacks from living in the same town and you met Watts through them. I accept that you are likely to follow others and to get into trouble that way. Despite your limitations, you have done some studies in Koori art at Ballarat University and I am told that some of your art work has been sold to a museum in Adelaide. You were to have an exhibition in October 2005. Your former partner is also an artist who has exhibited a number of times.

64 Your mother describes you as living a good life when you were in Antwerp in the house that you and your partner were buying but that when you are not there you get depressed. This leads to you being on medication but apparently you improve when you comply with the regime.

65 The pre-sentence report indicates that you have lost the house that you were buying with your former partner as a result of this offending. Indeed, you feel that you have lost everything.

66 I have read the reports of your treating psychiatrist from Horsham Psychiatric Services and he describes you as having a history of depression for which you have received medication. You have been a psychiatric inpatient when your depression overwhelms you. It is significant that the last two admissions were shortly before this trial was due to start in February and again in July. Bearing in mind I have no qualifications in this area, I make the point that I thought you looked and sounded much better at your plea in September and again today. You also presented as more capable to those assessing you for the pre-sentence report than you did in July this year.

67 I accept that you did feel frightened of your co-accused, Watts, both at the time of the offending and when the trial was due to start. Apparently you are terrified of going to gaol and meeting up with him there. I do not make any finding that that is well founded, I simply note that that is your feeling. I take into account your reduced intellectual capacity, your mental health, your plea of guilty and remorse, your good prospects for rehabilitation if you take your medication as required, and your family support.

68 Your support will be greater still if you are able to resume your relationship with your partner but that is, of course, a matter between the two of you. I also take into account that there is some basis for you being involved in these crimes in the sense that you were apparently doubling up on medication at the time and also using alcohol, such that this was likely to have a destabilising influence on your ability to reason and think clearly about your acts. Also, you had apparently separated from your partner in the time leading up to the offences, meaning you had also lost her positive influence.

69 Because of the seriousness of the offences and your prior convictions, I do not consider a community based disposition is appropriate. Also, I have considered the submissions made this morning but I do not consider that a community based disposition is appropriate for what might be described as the lesser offences. I have made that decision because I consider those offences to be part of the whole serious event.

70 Further, as you have separated from your partner, you will need the support of your parents even more and they are now living again in New South Wales. A community based disposition would stop you from being able to join them there and I am not sure that it is a good thing for you to continue to live with your brother who apparently has a criminal history involving alcohol. Also there is the prospect of you having some work with your father in New South Wales.

71 I am of the view that a prison sentence is appropriate for you but, because of your particular circumstances including your plea of guilty, I am satisfied that it is desirable in the circumstances to wholly suspend that sentence of imprisonment. Your last court appearance before these offences resulted in a suspended sentence which you successfully completed over a two year period.

72 The purpose of imposing a sentence of imprisonment is to show how serious these offences are. The purpose of suspending that sentence of imprisonment is to take account of your particular circumstances as I have outlined them. I will return shortly to detail your sentence but for now I tell you that if you commit another offence, whether in Victoria or interstate, you will be brought back before me and you will almost certainly serve the entire time that I am about to impose. This is your last chance to break the cycle of offending before you serve a considerable period of time in gaol.

73 Application has been made for intimate forensic sample to be taken from you, Newton, and you have consented to this. I am satisfied that it is in the interests of justice having regard to your prior convictions and the seriousness of the offending, that in all the circumstances I order that an intimate forensic sample, namely saliva, be taken from you. The sample may be taken by a doctor or nurse or other authorised person. A saliva sample is taken by wiping a swab inside your mouth. Although you have consented, if you change your mind I must inform you that the police may use reasonable force to enable that procedure to take place.

74 PARITY: I am of the view that there are good reasons for not treating all the prisoners equally without causing a justifiable sense of grievance in any of them. Watts is the oldest of the four prisoners, has the largest number of and the most serious prior convictions, was the leader and instigator of the offending and carried a gun which was used to terrorise the victims.

75 Phillip and Steven Black are both much younger than Watts with less prior convictions and played lesser roles, although in Phillip Black's case, still a significant one. Steven Black is the youngest of the prisoners but has the most relevant serious prior conviction of aggravated burglary as compared to his brother, Phillip Black. In the result, this could be said to balance out with his brother's greater role in the offending here. Both of them were on suspended sentences and both were on bail, as was Watts. All three of those prisoners chose to pursue their trial as is their right, but this is a significant difference between them and Newton. The other reasons for disparity between them and Newton appear from my outline of his circumstances and I will not repeat them.

76 SENTENCES: Would you stand up please, Mr Watts? Phillip Watts, you are convicted and sentenced as follows: Count 1, aggravated burglary, six years' imprisonment. Count 3, attempted armed robbery on McKenzie, two and a half years' imprisonment. Count 4, armed robbery on Petschel, four years' imprisonment. Count 5, armed robbery on Van Braam, 12 months' imprisonment. Count 6, armed robbery on Fisher, four years' imprisonment. Count 7, armed robbery on Smith, four years' imprisonment. Count 9, intentionally causing injury to Fisher, three years' imprisonment. Count 13, intentionally causing injury to Van Braam, two years' imprisonment. On each of Counts 15 to 20 inclusive, threatening to inflict serious injury on Roberts, McKenzie, Petschel, Van Braam, Fisher and Smith, two and a half years' imprisonment. Count 21, attempted robbery on Potter, 18 months' imprisonment. Count 22, threatening to inflict serious injury on Potter, 12 months' imprisonment.

77 I order that two months of the sentences imposed on Counts 15 to 20 and 12 months of the sentence imposed on Count 9 be cumulative on the sentence imposed on Count 1 and on each other. That makes a total effective sentence of eight years' imprisonment starting today, 22 November 2005. I order that 12 months of this sentence be concurrent with the sentence imposed by His Honour Judge Morgan-Payler on 15 April 2005.

78 Pursuant to s.14 of the Sentencing Act, I fix a new non parole period of five years, 11 months effective from today, 22 November 2005. This is a shorter period than would otherwise be the case as time is running from a later date than the previously fixed non parole period. If it transpires that you were on parole on 1 February 2004 then, despite the short period of time, I do order pursuant to s.16(3)(B) of the Sentencing Act that the sentence I impose today be served cumulatively on any period of imprisonment that you may be required to serve upon cancellation of parole. I make no order as to pre-sentence detention. Be seated please, Mr Watts.

79 Phillip Black, you are convicted and sentenced as follows: Count 1, aggravated burglary, four years' imprisonment. Count 3, attempted armed robbery on McKenzie, 20 months' imprisonment. Count 4, armed robbery on Petschel, two and a half years' imprisonment. Count 5, armed robbery on Van Braam, nine months' imprisonment. Count 6, armed robbery on Fisher, two and a half years' imprisonment. Count 7, armed robbery on Smith, two and a half years' imprisonment. Count 9, intentionally causing injury to Fisher, two years four months' imprisonment. Count 13, intentionally causing injury to Van Braam, 16 months' imprisonment. On each of Counts 15 to 20 inclusive, threatening to inflict serious injury on Roberts, McKenzie, Petschel, Van Braam, Fisher and Smith, 20 months' imprisonment. Count 21, attempted robbery on Potter, 12 months' imprisonment. Count 22, threatening to inflict serious injury on Potter, eight months' imprisonment.

80 I order that one month of the sentences imposed on Counts 15 to 20 and six months of the sentence imposed on Count 9 be cumulative on the sentence imposed on Count 1 and on each other. That makes a total effective sentence of five years' imprisonment starting today, 22 November 2005. I order that 12 months' of this sentence be concurrent with the sentence imposed by His Honour Judge Morgan-Payler on 15 April 2005.

81 Pursuant to s.14 of the Sentencing Act, I fix a new non parole period of two years seven months, effective from today, 22 November 2005. This is a shorter period than would otherwise be the case as time is running from a later date than the previously fixed non parole period. I make no order as to pre-sentence detention. Yes, you may be seated.

82 Steven Black, you are convicted and sentenced as follows: Count 1, aggravated burglary, four years' imprisonment. Count 3, attempted armed robbery on McKenzie, 20 months' imprisonment. Count 4, armed robbery on Petschel, two and a half years' imprisonment. Count 5, armed robbery on Van Braam, nine months' imprisonment. Count 6, armed robbery on Fisher, two and a half years' imprisonment. Count 7, armed robbery on Smith, two and a half years' imprisonment. Count 9, intentionally causing injury to Fisher, 18 months' imprisonment. Count 13, intentionally causing injury to Van Braam, 16 months' imprisonment. On each of Counts 15 to 20 inclusive, threatening to inflict serious injury on Roberts, McKenzie, Petschel, Van Braam, Fisher and Smith, 20 months' imprisonment. Count 21, attempted robbery on Potter, 12 months' imprisonment. Count 22, threatening to inflict serious injury on Potter, eight months' imprisonment.

83 I order that one month of the sentences imposed on Counts 15 to 20 be cumulative on the sentence imposed on Count 1 and on each other. That makes a total effective sentence of four and a half years' imprisonment starting today, 22 November 2005. I order that 12 months of this sentence be concurrent with the sentence imposed by His Honour Judge Morgan-Payler on 15 April 2005.

84 Pursuant to s.11 of the Sentencing Act, I fix a non parole period of two years one month effective from today, 22 November 2005. I make no order as to pre-sentence detention. Yes, you may be seated.

85 Channon Newton, stand up please. You are sentenced as follows: Count 1, aggravated burglary, convicted and sentenced to 18 months' imprisonment. Count 2, attempted armed robbery on Roberts without conviction, dismissed. Count 3, attempted armed robbery on McKenzie, convicted and sentenced to six months' imprisonment. Count 4, armed robbery on Petschel, convicted and sentenced to 12 months' imprisonment. Count 5, armed robbery on Van Braam, convicted and sentenced to three months' imprisonment. Count 6, armed robbery on Fisher, convicted and sentenced to 15 months' imprisonment. Count 7, armed robbery on Smith, convicted and sentenced to 12 months' imprisonment. Count 8, threatening to inflict serious injury on Roberts, convicted and sentenced to nine months' imprisonment. Count 9, intentionally causing injury to Fisher, convicted and sentenced to six months' imprisonment. Count 10, intentionally causing injury to Roberts, convicted and sentenced to six months' imprisonment. Count 11, intentionally causing injury to Van Braam, convicted and sentenced to six months' imprisonment. On each of Counts 12 to 17 inclusive, threatening to inflict serious injury on Roberts, McKenzie, Petschel, Van Braam, Fisher and Smith, convicted and sentenced to nine months' imprisonment. On Count 18, attempted robbery on Potter, convicted and sentenced to five months' imprisonment.

86 I order that two months of the sentences imposed on Counts 8 and 9 and one month of the sentences imposed on Counts 3 through to 7 and 10 through to 18 be cumulative of the sentence imposed on Count 1 and on each other. That makes a total effective sentence of three years' imprisonment.

87 I order that the whole of that sentence be suspended for a period of three years. That means that you must not commit another offence in the next three years. If you do, I will order that you serve the three years in gaol. Do you understand that?

88 PRISONER NEWTON: Yes.

89 HER HONOUR: I note that in the event that I need to do so, you have not served any time in custody for these matters. I have made the forensic sample order and in due course I will sign that when provided. Yes, you may be seated, Mr Newton.

90
Because of the complexity of the sentences, I will allow time for counsel to digest what has been done and bring the matter back before me if I have made any error or miscalculation. I will not have these matters enter the record before Friday of this week. I thank everybody for their assistance.

Mr Newton can be removed from the dock. Yes, the prisoners may be removed, thank you.

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Watts v The Queen [2010] VSCA 317

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Director of Public Prosecutions v WLNH [2017] TASCCA 15

Count	Offence	Judge Punshon Sentence	Judge Sexton Sentence
1/1	Aggravated burglary	60 months imp	72 months imp
2/4	Armed robbery	40 months imp	48 months imp
3/6	Armed robbery	40 months imp	48 months imp
4/7	Armed robbery	40 months imp	48 months imp
5/9	Intentionally causing injury	20 months imp	36 months imp
6/13	Intentionally causing injury	20 months imp	24 months imp
7	Common assault	10 months imp	-
TES	5 years	8 years ( 1 year cumulative with sentence undergoing)
NPP	3 years	5 years 11 months
PSD	354 days	0
Sentence Expiry	22 November 2012	24 January 2016
Earliest Release Date	22 November 2010	21 October 2011

[2010] VSCA 317

18 November 2010