Solicitors:
Director of Public Prosecutions - Crown
Rebecca McMahon Lawyer - Offender
File Number(s): 2013/00257904
[2]
sentence
HIS HONOUR: Just stand up Mr Mika. My practice is to tell people in advance what sentence is to be imposed. In your case I propose to impose a sentence of six years imprisonment. I propose to backdate that sentence to 25 September 2013 and I propose to fix a non-parole period of three years. You will be eligible for release to parole on 24 September 2016 on my calculation. So you will have a further 18 months to serve in custody before you are eligible for parole. Just take a seat and I will give my reasons.
The prisoner Junior Mika today appears for sentence in relation to an offence in respect of which he was found guilty by a jury on, the date on the indictment being 25 July 2014. The prisoner was arraigned before a jury panel in respect of two charges. Count 1, the count for which he now is for sentence after a verdict of guilty by the guilty was a count alleging that he at Potts Point did rob David Schmikli of certain property namely an amount of money and personal items the property of that person and immediately before the robbery intentionally or recklessly inflicted grievous bodily harm upon that person. This is an offence contrary to s 95(1) Crimes Act 1900 it carries a maximum penalty of 20 years imprisonment. There is no standard non-parole period.
There was a further charge brought against the prisoner at the trial that he on the same date at the same place did assault Stephen Riley who was a witness in the case. The prisoner was acquitted of that charge. There is no inconsistency between the two verdicts of the jury bearing in mind the different issues for consideration by the jury.
The facts in the matter are in relation to the assault that whilst it was properly charged, it was a live issue for the jury as to whether the prisoner had in fact assaulted Mr Riley by words and gestures or whether there was some conditional aspect of the conduct that fell short of what is required to be proven to establish the crime of assault.
The relevant events with which I am concerned occurred on 25 August 2013 in the latter part of the evening around about five to eleven or thereabouts, outside the Wayside Chapel or part of the Wayside Chapel in Kings Cross/Potts Point. The victim was aged 63. The prisoner, as I understand it at the relevant time was aged 24 years, he being born on 6 March 1989. As I understand it the two men were unknown to each other. The victim had come to the outside of the Wayside Chapel in effect to go to sleep. He was a homeless man like the prisoner and Mr Riley and like the prisoner the victim was living rough on the streets of Kings Cross and Woolloomooloo. He had arranged his bedding in an area that was shown in photographic evidence available to the jury and he was in effect asleep, seeking shelter from the elements. When the prisoner came upon him and for absolutely no reason that can be explained, other than arising from the effect of alcohol upon the prisoner's feelings of anger, not specifically directed against the victim because of who he was, the prisoner set about assaulting the victim by stomping upon the victim with his feet.
There was evidence that the prisoner was seen to stomp or kick the victim in the head at least five times in the course of what was, by nature of the injuries caused, a savage beating indeed. The victim's primary injuries were suffered to his head and face and in the circumstances of the physical proportions of the prisoner which I will come to in a moment and the prone state of the victim, it is fortunate for the victim the injuries, severe as they were, were not more serious and perhaps more permanent in their effect.
The other alleged victim Stephen Riley, who was aged about 59, was also sleeping in this area and he was awoken by the prisoner kicking or stomping on the victim. When he intervened to stop this beating he was told by the prisoner that he had better run away or go because "he would be next". This was the conduct that constituted the assault in conjunction with any relevant gestures.
To Mr Riley's credit, he went to the Kings Cross police station as I would understand it to report the fact that the victim was being assaulted. He should be commended for this action. He had no access to a mobile phone and I accept that there was little that he could do to intervene. It is to be noted in relation to this matter that the prisoner, being aged 24 years at the time was considerably younger obviously and from physical observation of all men, stronger and fitter than Mr Riley and the victim.
The evidence at the trial revealed that the prisoner weighed approximately 110 kilograms. It is to be fairly pointed out in assessing the objective facts that the prisoner was wearing thongs, not wearing shoes or boots, and thus the blows to the head of the victim were occasioned by him, effectively with bare feet. The force of the assault was not aggravated by the use of heavy boots or the like.
The victim himself remembered four or five kicks to the head before he lost consciousness for a period of time. The property that was taken from him by the prisoner was modest. It seems to me on the facts that robbery was not the primary motive of the prisoner. To my mind that would aggravate the objective seriousness of this offending, serious though it is. The facts reveal that the prisoner took from the victim at some point, the evidence is a little confused on this matter, about twenty odd dollars, some tobacco and a cigarette lighter. These items ultimately were returned to the victim by police at the hospital. I should point out of course it would seem to me that apart from his clothes and the modest bedding that he had, this would have been all the property the victim possessed. But then again the prisoner was no better off it would seem.
If the prisoner's condition was such for him to fully comprehend what he was doing I would be prepared to conclude that the taking of the property was more an act of need than greed, if it could be reasonable to categorise conduct of this type in that way.
It certainly is the case that the taking of the property was opportunistic and the objective evidence of things the prisoner said directed towards the victim as he stomped upon him appeared to be more concerned with some totally unfocussed anger or belligerence than the need to take property.
When the prisoner was interviewed by police subsequently he gave an account which was of course his defence, if I could use that expression, at the trial, as he did not give evidence. He was disjointed in his explanation of himself. He made a number of incoherent and rather disconnected observations. He seemed to be more concerned with the conduct of the police towards him subsequently in their endeavour to placate him and arrest him, than addressing the substance of the allegations against him. I discussed this matter with learned counsel for the prisoner in the course of her helpful submissions and I initially suggested that he gave a persona of belligerence towards the police. There was, it must be fairly said, an element of anger in the way in which he presented himself and his account.
There was also to be fairly said, as I observed his presentation, some degree of affect upon the prisoner of alcohol or perhaps other substances. He did have the presence of mind, however, to give a false account of trying to help the victim and a false account of how he came into possession of the property found on him by the police which was returned to the victim. He denied kicking the victim in the head or the face and continued an aggressive attitude towards the police. There was absolutely no indication of remorse or regret in his account given to the police. Although it must be fairly said that some of the things he said in the context of outright denials of responsibility reflected some degree of incoherency, he was not so incoherent or disordered that he was unable to give, what on face value at least, was an exculpatory account. He certainly reflected his awareness of the character of the police investigation, given the explanations that he provided.
The victim suffered comminuted and depressed fractures of the nasal bones, displaced fracture of the right orbital rim, that is the eye socket, facial lacerations and abrasions and facial swelling. Remarkably he was in his evidence and it seems in his presentation at the hospital, notwithstanding a very graphic photograph which showed considerable blood upon his face, to be somewhat taciturn about his injuries. I accept that clearly it has been established, as the jury accepted, that actual bodily harm was suffered by him. Remarkably apparently he was released from hospital the day after his admission. What the permanent effect upon him of his injuries is I cannot say. There have been attempts to obtain a victim impact statement but the victim's transient lifestyle has not aided those inquiries.
The prisoner's guilt in relation to the matter was clearly established. There was of course a body of, what I would call, crime scene evidence material, photographs of the prisoner and the like that linked him to the attack upon the victim. He had blood upon his feet consistent with what was alleged against him. There was an eye witness who saw relevant events and to his credit rang triple-0 to contact the police.
I must say I have not had any discourse with the prisoner beyond having asked him to go back into custody or sit down or whatever. But I will observe that throughout the trial he maintained what could be called a very, very low profile. He sat through the proceedings at trial and on this day on sentence with his head bowed. I am prepared to accept that at least by his demeanour there appears to be some evidence of regret or contrition for his conduct. That has not been expressed in any way that could enable the court to conclude on balance that it exists as a mitigating factor. But I observe the prisoner's conduct throughout the trial as being considerably different from the belligerent and aggressive attitude he exhibited towards police when they first arrested him and during the course of the interview that he gave the police.
The prisoner was on bail in relation to offences of violence when he committed the offence with which I am concerned. He was charged in relation to what I understand to be three separate offences on 26 July 2013. One was an offence of assault occasioning actual bodily harm for which he received a sentence of one month imprisonment, commencing on the date the matter was disposed of at the Local Court, that is 21 March 2014.
In respect of another charge of assault occasion actual bodily harm and a charge of reckless wounding, charged on or about the same date as the earlier matter that I referred to and dealt with at the same time as that matter on 21 March 2014 for some incredible reason which defies any logical or common sense whatsoever, bearing in mind the prisoner was awaiting trial in relation to this matter that I am concerned with bail refused, he was granted a sentence of nine months imprisonment which was suspended pursuant to s 12 Crime (Sentencing Procedure) Act. I do not have the facts in relation to those matters. Learned counsel for the prisoner and the learned Crown Prosecutor have referred to their understanding of the facts.
What I do understand from what I have been told is that the facts of those obviously serious matters of violence were of a different character than the offence with which I am concerned. I take it from what has been said and from what occurred at the Local Court that the fact that those matters were ultimately dealt with in the Local Court in the manner in which they were might provide some indication that that offending is different less serious than the matter that I am now dealing with.
In respect of the prisoner's criminal history, he was charged on 15 December 2006 and dealt with a year later at the Bidura Children's Court in relation to a number of offences for which he was placed on a bond or some form of Juvenile Justice probation. The Crown points out there was a break in his criminality then for another further two and a half years from the time, or two and a quarter years from the time of appearing at court, when he appeared at the Burwood Local Court in 2010 for intimidating a police officer and refusing to comply with the relevant directions for which he was modestly fined.
Then there was a further break in his offending to the time when he was charged in July 2013 with those three offences I have earlier identified. Thus he was on bail when he committed the current matter. Being a matter where the offence was committed while subject to conditional liberty is an aggravating factor pursuant to s 21A(2) Crimes (Sentencing Procedure) Act. I note the conditional liberty related to offences of violence which is a relevant consideration. I also appreciate that there are different degrees of conditional liberty. One might ordinarily, although there is not general rule to be applied, regard offences committed whilst on parole, particularly offences of like nature, as being a more serious breach of conditional liberty than a breach of bail. But I also bear in mind of course that the prisoner was on bail for offences that he ultimately admitted his guilt to which were offences of violence.
When arrested in relation to the current matter on 25 August 2013 he remained in custody, bail refused. Reference was made in the course of submissions as to how I should approach the prior custody. Certainly I will give him full credit for all the time in custody directly related to the current matter. Given the modest sentence imposed at the Local Court of one month it seems to me ultimately that I should commence the sentence I impose one month after the commencement of the time the prisoner came into custody in relation to the current matter, that is the sentence will commence on 25 September 2013.
If the prisoner, whilst in custody in relation to this matter, had been sentenced to, for example, six months or eight months, or 12 months imprisonment for the other offence, not that I am suggesting that that would have been an appropriate term, I would have fixed this sentence as not wholly accumulative upon that period. But a period of one month is so modest that no injustice is done to the prisoner in the circumstance of the matter. Particularly bearing in mind the absurd orders of the Magistrate in 2014 meant that the prisoner suffered no penalty whatsoever in relation to other offending in respect of which a judicial officer felt that the appropriate term of imprisonment was nine months. One month's recognition of the other sentence is not a matter that unjustly affects the prisoner.
I have a report from a psychologist who has assessed the prisoner and also had regard to a further or earlier report of Dr Peter Ashkar who prepared a report in relation to the prisoner on 10 February 2014. When the verdict of the jury was returned, bearing in mind the prisoner gave no evidence and noting his demeanour throughout the proceedings I raised the issue directly with counsel for the prisoner as to whether some issue of mental illness or some other matter arose in the case. No issue of mental illness arises from the assessment of the prisoner by Dr Ashkar or by Dr Ilana Hepner whose report of 13 April 2015 was, in effect, the evidence adduced on behalf of the prisoner.
There is some inconsistency between some of the history obtained by Dr Ashkar and some of the history obtained by Dr Hepner, but ultimately it is not a matter of great significance. The prisoner told Dr Hepner that he had been violently attacked by his father when he was 15 years of age. His father wielding a baseball bat. The history that he gave to Dr Hepner was that he denied ever being taken to hospital because of his father's actions, denied ever losing consciousness at the hands of his father etcetera. Although he did give a history of being taken to St George Hospital in 2005 after being struck by a motor vehicle and apparently losing consciousness and suffering some form of leg injury.
As it turns out psychological testing by Dr Hepner does not reveal, as I would understand it, clear evidence of frontal lobe or other brain injury that is an acquired cerebral injury. It seems in the absence of any MRI scan results that whatever violence the prisoner may have suffered growing up at the hands of his father has not caused any permanent disability.
Dr Ashkar's assessment of the prisoner involved some psychometric testing and he concluded that the full scale intelligence quotient of the prisoner placed him in the "borderline impaired range", with various results across a number of levels of measure, although there was some variation in the results, largely because of educational reasons. "The prisoner also gave some indication of moderate levels of stress, anxiety and depression".
The prisoner was recorded by Dr Ashkar as saying the he received a TER, a former measure of performance of the Higher School Certificate, of 92. The prisoner in his discussion with Dr Hepner at a later time said that his TER was in fact 65. Again that is an inconsistency of no great moment. It may reflect some poor memory on the part of the prisoner.
The prisoner when interviewed by Dr Hepner gave a coherent account, he was friendly and cooperative and there was no obvious difficulty in the prisoner relating to the psychologist. Her report sets out some history which the Crown has permitted to be led without the prisoner being called. It is rather unremarkable if I say so. The prisoner is of Samoan background. He came to Australia when he was about ten. His parents separated in 2009, his father is in a new relationship, his mother has moved to New Zealand. He has had no contact with his parents or his sister since 2010.
He had an unfortunate upbringing in the sense that he was the subject of experiences of domestic violence. His father was a person who drank excessively. It is always surprising I must say to have people come before one with histories of alcohol and drug abuse and histories of violence when they themselves have experienced alcoholism and drug abuse by parents and suffered violence and seen violence perpetrated by parents. But it is the fact that those experiences rather than deterring people from particular behaviours have a counter-indicative effect and it may be that he is inured to violence and is no stranger to it in its various forms.
I accept from the history that up until 2008 he was reasonably well occupied with employment. But it must be fairly said that that is five years before he came into custody in relation to the current matter at the age of 24 and suggests that he was only involved in employment from the time he left school until the age of 19. He was in a relationship from 2008 but that relationship came to an end before he committed the current crime. That separation has had a big effect upon him. He was an abuser of alcohol on his own admission. He drank very heavily after his fiancé and he separated in March 2013. He was not an illicit drug user as a matter of course.
The testing of Dr Hepner ultimately concluded some inconsistencies. His verbal comprehension skills on the testing she undertook, which was to all intents and purposes standard and appropriate testing, reflected extremely low range results. His vocabulary, knowledge and his social reasoning skills were rated in the 'borderline impaired' range. In the non-verbal domain, that is in perceptual reasoning skills, his rating was low/average and it was concluded by the psychologist that there was a significant discrepancy between his performance on these various indices. The magnitude of the discrepancy was not considered abnormal and it was thought that his full scale IQ was most probably in the borderline impaired range. He scored well in relation to other areas of skill both with regard to attention and processing of information and the speed of processing. He was in the 34th percentile relative to persons of similar age. His memory placed him in the 55th percentile relative to persons of similar age.
So even though his intellectual functioning might be on a global perspective be seen as borderline, there were other aspects of his functioning that were average or above average, certainly not impaired. His frontal executive function assessment revealed no deficits in areas of complex problem solving. In his ability to utilise feedback to adapt his performance in response to changing task demands and non-verbal reasoning skills he rated within the low/average or average range on these tasks. His ability to give solutions to common social issues, known as "social reasoning" was rated in the 'borderline impaired' range. Validity checks were undertaken and the psychologist was satisfied of the validity of the results. She concluded that whilst he was a man of borderline impaired intellectual functioning, as I have pointed out, he did better than expected in relation to other testing concerned with other skills not necessarily reflecting a level of intellect.
He had no current symptomology of psychological distress. It was said in the context of the histories that he had given about injuries that, whilst there were discrepancies in his histories there was not much else the doctor could say about the presence of any cerebral acquired injury. She noted the MRI scan which was scheduled for 23 March, in fact that was one of the reasons the case was earlier adjourned, could not be undertaken because of feelings of claustrophobia by the prisoner.
The prisoner has a history of binge drinking and it would seem that his borderline intellectual functioning was longstanding. It was said in the report that as such there does not appear to be a history of concurrent deficits and adaptive function/every day level of function, outside the context of heavy alcohol use or depressed moods which indicates that Mr Mika would not meet criteria for an intellectual disability.
She reflected upon his history of heavy intoxication and she said his cognitive function or profile at the time of seeing her would have been about the same at the time of the offence. Although there may have been a worsening in his attention or function since that time and his ability to process information and perform frontal executive functions, due to the effects of his depression and heavy alcohol use, but she cannot say to what extent.
She said in view of his strengths and areas of memory, non-verbal intellectual function and frontal executive functions from a cognitive perspective, Mr Mika is considered to have good prospects of rehabilitation. I understand that expression to mean that there is no cognitive reason for him not to have good prospects of rehabilitation. But these prospects of rehabilitation need to be assessed by a reference to a range of other considerations. His criminal history, his future, domestic circumstance, his past performance in the community and the like.
The prospects of rehabilitation of the prisoner are very much dependent upon what environment the prisoner returns to when released from custody. It is that aspect of the matter, along with the need for the prisoner to receive professional guidance in relation to alcohol use and to receive assistance to adjust to community living, that has persuaded me that there are 'special circumstances' that require an extended period of supervision and thus a finding of special circumstances pursuant to s 44 Crime (Sentencing Procedure) Act 1999 is made. I note in this regard that the recommendations of the psychologist suggest a treatment plan involving psychological evaluation and management, drug and alcohol rehabilitation programs, direction as to suitable accommodation and vocational advice and also receive regular assistance from a general practitioner in respect of the management of his overall level of health. He should also receive counselling in custody, life-skills, educational and vocational training, as well as undertaking programs such as the Getting SMART program.
In respect of the issues that I am required to address under s 21A Crime (Sentencing Procedure) Act 1999, I believe that an aggravating factor of the offence with which I am concerned is that the victim was vulnerable. The victim was alone at night. There was another homeless man nearby but, most importantly, by reason of his age and particularly the fact that he was asleep when he was attacked he had no means whatsoever of defending himself. There was really no rhyme or reason for the prisoner's attack. In fairness to the prisoner it is not that there is any evidence that he is a psychopath, or that he takes delight in inflicting pain upon other people or that had a particular grudge against the victim. It is clear that he was disinhibited by alcohol. I bear that in mind of course that being intoxicated can be no mitigation for acts of violence but it does explain his circumstances.
With regard to mitigating factors, I accept that the offence was not a planned criminal activity. Whilst the prisoner's criminal history does not entitle him to any particular leniency, nor was he a person of good character, I am prepared to accept that with some professional assistance he is unlikely to reoffend and in the context of the helpful submissions of the Crown and counsel for the prisoner, with the caveat or qualification that I have expressed, I believe he has good prospects of rehabilitation.
There are no other "mitigating factors". I have noted an air of contrition and remorse of the prisoner, but as I have said I could not without the aid of further evidence or other material conclude simply on the basis of what the prisoner has said to the psychologist that the prisoner has demonstrated remorse required to be established under s 21A(3)(i) upon balance.
The sentencing of the prisoner in relation to an offence of robbery does require at least some regard to the much earlier guideline decision of Henry from 1998/99 given in respect of the offence of armed robbery. This is not armed robbery of course but it is an offence that carries the same maximum penalty. I bear in mind of course that an armed robbery is a very different 'kettle of fish', if I may use that expression, from the offence with which I am concerned. An armed robbery of the character described in the guideline judgement is one that has the connotation of some pre-planning, to conduct a robbery armed with a weapon, an offensive weapon, at a particular location. I have earlier indicated the prisoner to my mind did not have a preconceived plan to rob anybody, but took advantage of his defenceless victim to take his property from him.
I also bear in mind when I have regard for example to the criteria or indicia that was discussed by Spigelman CJ at [162] and take into account of course the guideline itself set out in the judgment at [165]. I have also had regard to the common aggravating factors that were identified in [170]. This offence that I am concerned with has elements of violence and harm that clearly very significant factors to be taken into account by reference to whatever assistance the guideline might provide in a case such as this, being so different from the 'run of the mill' armed robbery to which the learned Chief Justice referred. I am fully aware of what the learned Chief Justice said in that judgment about the relevance of the observations of Mahoney ACJ in the case of Lattouf that sentencing is an individualised exercise. One is required to the best of one's ability to provide justice in the individual case. I accept ultimately, as has been described in subsequent cases to that guideline and other guideline judgments, that guideline judgments if they be relevant in any way as guideposts to an appropriate sentence are guidelines not 'tramlines', as has been said.
When one reflects upon this category of offending, given the character of the injuries suffered by the victim and his vulnerability, it is a serious case of its type objectively more serious than the 'typical' armed robbery discussed in Henry. That having been said, of course, one can conjure up a more serious case involving similar injuries. People who deliberately go out and prey on homeless people would be subject to full extraction of retribution and the full application of considerations of general deterrence. In that regard I have obviously taken into account the 'purposes of sentencing' pursuant to s 3A of the Act.
General deterrence and personal deterrence have their role to play in this sentencing exercise. Denouncing the prisoner's conduct, making him accountable for his actions are relevant matters to consider, as well as ensuring adequate punishment and promoting the rehabilitation of the prisoner. At this point I could not conclude that the community needs protection from the prisoner. I would hope that the experience of being in custody for this period of time, the longest he has been in custody I hasten to say up until this time, it this matter might have a salutary effect or a moderating effect upon his conduct. But the truth of the matter is if the prisoner goes back to the streets of Kings Cross and drinks alcohol to excess, given his conduct on this particular occasion, it is a real possibility that he could behave similarly again. Thus, I emphasise the need for him to have an extended period of supervision to assist him in a range of ways to avoid coming back into this environment.
This brings me to the matter that was discussed as to the relevance of the findings of the psychologist. Ultimately, as I understood the submissions of learned counsel for the prisoner, the assessment of the psychologist, with its mixed messages I hasten to say, was a matter that I could take into account in respect of the weight to be given to general deterrence. It is not clear that there is necessarily a causal connection between the prisoner's intellectual functioning and his conduct on this occasion. It seems to me with respect, taking everything into account the psychologist has written, intellectual functioning plays little role in explaining the prisoner's conduct. His intoxication and perhaps his anger at the world may provide more eloquent reasons for him behaving the way he did to a complete stranger.
Making that observation the Crown, I believe, very fairly conceded that even though general deterrence was still a relevant matter, slightly less weight might be placed upon it in the context of what he described as the decisions of for example Grove J in Scognamiglio, and decisions of the Court of Criminal Appeal in Israil, the 2010 decision of DPP (Commonwealth) v De La Rosa [2010] NSWCCA 194 and the like. The latter was a matter where a full bench of the Court of Criminal Appeal considered a Crown appeal against the inadequacy of sentence imposed upon an importer of a commercial quantity of cocaine. The case raised constitutional issues, but in that judgment, particular at [177]-[178], the then learned Chief Judge at Common Law, Justice McClellan, discussed his findings from the principles he examined concerning the sentencing of an offender suffering from a mental illness, an intellectual handicap or other mental problems. He observed that a person's mental health where it contributes to the offence in a material way may reduce and offender's moral culpability. I cannot find the necessary causal connection to reduce the prisoner's moral culpability for his offending in this matter.
However he also said that the existence of such a condition may mean that an offender is an inappropriate vehicle for general deterrence. These are matters of degree of course. I have sentenced highly intellectually disabled children 17 or 18 committing very serious offences, where I have imposed sentences that objectively might be regarded as wholly inadequate. I make the observation that those people were so intellectually disabled that no reasonable court of justice could commit them to a term of imprisonment. This is not such that case. I accept the submission of the learned Crown Prosecutor that what is found by the psychologist with its mixed messages has some role to play in ameliorating to some small extent the general deterrence aspect.
Whether the custodial sentence will weigh more heavily on the prisoner is difficult to say. He is a formidable man physically. I do not believe he is at risk in custody as some people with intellectual impairment may be and I have no evidence that he is under any particular protective conditions.
The circumstances of the prisoner do not reduce or illuminate the significance of personal deterrence, but as I earlier pointed out they do not require greater emphasis upon personal deterrence in the way discussed by learned Chief Justice Gleeson in the decision of Engert (1995) 84 A Crim R 67 at 71.
Of course McClellan CJ at CL pointed out that mental health problems, as he describes them, of an offender need not amount to a serious psychiatric illness before they will be relevant to the sentencing process. The circumstances may indicate that when an offender has a mental disorder of modest severity it may never the less be appropriate to moderate the need for general or specific deterrence and I have taken that matter into account.
The determination of the appropriate term of imprisonment involves many matters. A measure of the seriousness of the matter in context of the maximum penalty, the objective facts and the relevant mitigating factors and of course in that exercise one is required to make two judgments, the appropriate sentence and the fixing of an appropriate non-parole period. It is worthy of note that time and time again the Court of Criminal Appeal has said that the appropriate non-parole period should not be so inadequate as to not give proper consideration to other matters that are also relevant to the fixing of the appropriate sentence, including the objective seriousness of the offending and the need to give weight to relevant purposes of sentencing.
It seems to me that the seriousness of this offence is such that I could not consider a non-parole period that would permit the immediate release of the prisoner but I believe that fixing a sentence that would permit his release to parole in 18 months time will assist in the promotion of his rehabilitation.
Thank you Mr Mika, would you mind standing up.
In respect of the offence that you are found guilty of by a jury, that is count 1 on the indictment, you are convicted. You are sentenced to a term of imprisonment of three years by way of non-parole period, that term of imprisonment will commence on 25 September 2013 and will expire on 24 September 2016. In relation to that sentence I fix a balance of sentence of three years which will expire on 24 September 2019.
You can sit down sir thank you very much.
You will be eligible for release to parole on 24 September 2016 but whether you are released to parole on that date will be a matter for the Parole Authority.
Now anything else Mr Crown. Thank you Mr Mika can you just go with the officers now. I'll just sign the orders now if you'll just bear with me. Thank you Mr Crown thank you mam, I'll adjourn the court.
[3]
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Decision last updated: 14 January 2016