Director of Public Prosecutions v Aisbett
[2024] VCC 1208
•8 August 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-23-00007
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MARK AISBETT |
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JUDGE: | HER HONOUR JUDGE RIDDELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 July 2024 | |
DATE OF SENTENCE: | 8 August 2024 | |
CASE MAY BE CITED AS: | DPP v Aisbett | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1208 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW --- SENTENCE
Catchwords: Theft of two boats and trailers --- Premeditated --- Committed in company --- Possession of drugs --- Possession of weapon --- Cooperation with police --- Admissions --- Early Plea of Guilty --- Step-father introduced to life of crime --- Prior criminal history --- Solid Employment --- Remorse
Legislation Cited: ---
Cases Cited:The Queen v Bugmy (2013) 249 CLR 571 --- Donnelly v The Queen [2020] VSCA 151
Sentence: TES 19 Months imprisonment
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J. McCarthy | Office of Public Prosecutions |
| For the Accused | Mr V. Andreou | Christopher James Lawyers |
HER HONOUR:
1Mark Aisbett, on 23 July 2024 you pleaded guilty to four charges of theft and two charges of possession of a drug of dependence in addition to one summary charge relating to possessing a prohibited weapon without an exemption.
2These charges relate to several episodes of offending committed between February and May 2022.
3You were 52 years old at the time of the offending. You are now 54.
Summary of offending
Charge One -
4On 22 February 2022, at approximately 2:40 am, you in company with an unknown person, stole a Bar Crusher Fishing Vessel and Easytow Trailer from a gated compound at Joe Patterson’s Plumbing in Williamstown North. That was a boat and trailer.
5You and your co-offender entered the compound and hooked Boat and Trailer 1 onto a white dual cab Isuzu DMAX utility with an aluminium tray. A lock was breached for that purpose. You then towed the Boat and Trailer 1 from Joe Patterson’s Plumbing.
6That conduct is the basis of Charge 1 of theft.
7The value of the Boat and Trailer was $105,715.78.
Charge two -
8About two weeks later, on 15 March 2022, at approximately 4:00 am, you and an unknown co-offender gained access to Aussie Boat Sales in Williamstown by removing a gate motor on the south side of the yard.
9You and your co-offender then hooked Boat and Trailer 2 onto the same white dual cab vehicle and towed it away.
10That offending was also captured on CCTV however you and your co-offender cannot be identified from the CCTV alone.
11That conduct is the basis of Charge 2 of theft.
12The value of Boat and Trailer 2 was $90,000.
Investigation
13CCTV from the premises was reviewed by Detective Sergeant Brett Colley. He found that the same vehicle was used in each theft and that it had an identifiable feature, being two markings on the rear aluminium tray that had been covered with tape.
14Detective Sergeant Colley tracked the movements of the white Isuzu vehicle DMAZ dual cab utility over several days through the Victoria Police Automated Number Plate Recognition Platform.
15It was identified that a company called Rix Nominees placed their logos in the same place as the tape on the rear aluminium tray of the white Isuzu used in the offending and following this, checks were conducted of the rental histories of Rix Automative. These checks led to you. It was discovered that this particular vehicle had been hired by you from 21 February to 1 April 2022, namely covering the offending period.
16Additionally, the GPS on that vehicle was active during this period and confirmed that the vehicle attended the locations of the offending on the days that the boats and trailers were stolen.
17You were identified in Heathcote driving the vehicle at a petrol station. Surveillance conducted at an address in Heathcote located the two boats and trailers.
18A search of that address, occupied by an associated accused was conducted by police on 7 April 2022. The two boats were not in the same condition. A gear box and propellor had been fitted to the motor of one, the motor had been painted and there was acid damage on the aluminium decking. All labelling and stickers had been sand blasted off. The rear left light mount had been bent and a large black cover was damaged and ripped.
19Each boat had a stolen registration plate attached to it. The theft of those stolen registration plates is reflected in Charges 3 and 4.
20Police executed a search warrant at your address in South Kingsville. You were not home. Police observed a number and letter sticker kit with stickers similar to those affixed to one of the stolen boats. Indeed some of the digits missing from the letter and number kit matched those affixed.
21They located a glass jar wrapped in silver duct tape. Inside was white powder confirmed to be ephedrine. Analysis of that substance determined it to be 330.1 grams of a mix with a 62 per cent purity, or 205 grams of pure ephedrine. You are charged pursuant to Charge 5 with possession of that drug. I must determine on the balance of probabilities whether that possession was for the purpose of trafficking.
22A samurai sword in a sheath was also located displayed at your premises. That is summary charge 8. A small amount of cannabis was located in your kitchen, along with a small amount in the walk-in wardrobe. That is Charge 6.
23You attended Williamstown police station by agreement on 3 May 2022 for the purpose of an interview. You made various admissions to the above offending. You stated that you had hired the rental car not for the purpose of committing offences but because your car was being repaired.
24You told police that you had driven past boat and trailer No.1 a couple of days before the theft, commenting that it looked like ‘a big cherry waiting to be plucked’. You said you became aware of the boat at Aussie Boat Sales by riding a pushbike past. You asserted that the gate at the scene of Charge 1 was open. You agreed you cut a lock on boat number one when you stole it, and for that purpose you used a grinder.
25You told police that you stole boat number 1 in order to go fishing and that you stole boat number 2 for parts. You stated you took the boat and trailer number 1 to a friend’s place to store it for a couple of weeks before moving it to a Murchison residence. You then moved it again to Heathcote where it was located. The second boat and trailer you admitted taking straight to Heathcote.
26You agreed that you stole numberplates for the purpose of putting them on the boats and trailers and admitted fixing false plates and stickers because you were trying to hide the identity of the stolen boats and you confirmed that the letter and number sticker kit was used for that purpose.
27You agreed that the boats were not cheap commenting that although you did not know the exact value, people might buy one for 20 grand.
28You told police you did not know what the ephedrine was, however admitted the cannabis belonged to you. You said the samurai sword was ornamental and something you had owned for 30 or 40 years.
29You were released after that interview, however returned by agreement on 12 May 2022 for a second interview. At that time you opened the boot of your car which contained several marine property items. You returned those to Detective Sergeant Colley saying 'this is the rest of the stuff from the stolen boats'.
30You were interviewed and told police that you returned those items because you did not want them and it was the right thing to do.
31In your second interview you told police in relation to the ephedrine, that you had not touched the stuff for years and that it just sat there probably for five years and you never thought much about it.
Sentencing Principles
32The principles of sentencing are clear in relation to offences of theft and in particular theft of items of significant value. The sentence I impose must generally deter others from offending such as this. It must also deter you from further offending. It must denounce this behaviour on the part of the community and justly punish you.
33I take into account the maximum penalties for each offence as outlined in the Prosecution submissions. In particular, the maximum for theft of 10 years' imprisonment.
Objective Gravity
34Charges 1 and 2 on the indictment which reflect the thefts of the boats and trailers are serious offences. The following features are aggravating –
(a) they were premeditated offences;
(b) you attended with tools in order to effect entry to the premises and or the taking of the boats and trailers;
(c) the offences were committed in the middle of the night;
(d) they were committed in company with another person;
(e) you refused to name your co-offender;
(f) you stole items of significant value;
(g) you then went about altering them to disguise their identifying features. For that purpose, you also stole registration plates from other vehicles. Clearly there was no intention for the boats and trailers to be returned to their owners;
(h) although both boats and trailers were insured and were both ultimately returned, I expect their owners have been inconvenienced at least by their loss, by the need to go through any claim process, the need to rectify any damage caused to them or the premises from which they were stolen.
35In relation to that last point, I do not make a finding in relation to whether the gate was locked on incident 1 or whether the lock was on the actual boat. Either way the relevance is to show that you came prepared to use what means were necessary to take the boat and that you cut through a lock for that purpose.
36Charges 3 and 4 relate to the theft of registration plates and essentially in my view form part of the overall offending relating to the boats and trailers.
37In relation to Charge 5, that is the charge of possessing ephedrine. The prosecution having established that you were in possession of that drug in the amount noted, I must be satisfied on the balance of probabilities that your possession was not for any purpose related to trafficking. I accept the submissions of your Counsel that on balance I could not be satisfied your possession of that drug related to trafficking. There were no accoutrements for trafficking or indicia of trafficking located such as scales, weights, measures, deal bags, cash or any notes regarding sale. Your phone was interrogated and no messages were located.
38In those circumstances the lower maximum penalty applies.
Personal Circumstances
39Your personal history is outlined in the Psychological Report of Mr Jeffrey Cummins.
40You were six years of age when your father died as a result of complications from a motor vehicle accident. His deterioration prior to his death was traumatic for you and your sister.
41When you were 11 or 12 your mother repartnered with a man who had a negative impact on your life. You told Mr Cummins your stepfather was a:
'crook who introduced me to a life of crime - he was a meth crook. He was into dope and probably other drugs and he drank a fair bit of alcohol. When I was about 16 my stepdad put a gun to my head. I regarded him as my male role model, but he was definitely not a positive influence of me. At one stage he had me transporting drugs for him.'
42Your mother has been your main support through your life. She is 76 years old. She has a number of health issues and you in turn provide support to her. She has been present through these proceedings and it is apparent from past sentencing remarks that she has been present in support of you on other occasions. It is clearly painful to her that you are again in trouble with the law.
43You have a 53-year-old sister who lives in Melbourne. She has never been in trouble with the law.
44You were in a relationship for eight years that ended in 2007 and you have two adult children. You are in regular contact with one of your daughters and have some limited contact with the other.
Bugmy v The Queen
45Your counsel submits on your behalf that your early life experiences, in particular with your stepfather, have played a significant role in shaping your life path.
46He referred me to the opinion expressed by Mr Cummins that you are suffering from symptoms of trauma related to those experiences. Mr Andreou relies on the evidence to submit that the principles enunciated by the High Court in Bugmy v The Queen[1] are enlivened in your case.
[1] The Queen v Bugmy (2013) 249 CLR 571
47In short, your experiences suffered in your formative years largely at the hands of your stepfather have left a mark on you and impacted your behaviour and development over time. In that way in sentencing, I must take account of those matters as against a person who did not have those negative early life experiences.
48The prosecution did not dispute that your moral culpability is reduced on account of the impact of those matters, although submit properly that weight is a question of degree.
49I accept that those principles apply. The impact of your stepfather on your life clearly set you on a path of criminal behaviour. That was reinforced by your early experience in custody.
50You have a long history of criminal offending dating back to 1988. Your history includes offences of violence including personal violence along with armed robbery. It also includes matters of dishonesty including theft and theft of motor vehicle and more recently contraventions of family violence intervention orders. You have served terms of imprisonment including a head sentence of three years and a head sentence of five years for armed robbery. The last matter prior to this offending was dealt with in the Magistrates Court and related to possession of methamphetamine, theft, committing an indictable offence on bail and using a carriage service to menace. You were fined. That appearance was in October 2021. These offences were committed some four months later in February 2022.
51I have also been advised of subsequent matters. Those fall into two categories. First you have appeared in the Magistrates Court a number of times in 2022 and 2023 where you have admitted criminal offending including driving matters, criminal damage, possessing dangerous article in a public place, unlawful assault, theft, and committing offences on bail. At the time of those offences being committed you would have been on bail for the offending which is now before me.
52In March 2023 you were sentenced to four months' imprisonment to be followed by a 12 month community correction order. Despite that opportunity, you have breached that order through some aspects of non-compliance and by a range of further offending alleged to have been committed in June 2023 and February 2024.
53I accept the limitations that apply to consideration of both subsequent convictions and also allegations of subsequent offending. The relevance of the offending committed in 2022 and 2023 which resulted in imprisonment and a CCO along with a number of fines is to assist me in understanding the context of your life around the time of the offending before me. It also informs my assessment of your prospects of rehabilitation and the need for specific deterrence.
54As I stated to your Counsel, the opportunity you were given in March 2023 to undertake a community correction order when already on bail for this matter was significant. I have read the breach report and addendum breach report in relation to your performance on that order. I accept there are some positives, in particular your engagement with psychological counselling beyond what was mandated. The breach proceedings for that order are pending, along with a further hearing for the other subsequent offences.
55Despite your prior criminal offending, you have managed to maintain employment throughout most of your life. You are clearly someone with intelligence and ability. You completed Year 11 at Niddrie Technical School. You were an above average student.
56After school you completed a four year fitting and turning apprenticeship as a printing engineer.
57The long period of incarceration for armed robbery interrupted your progress and you spent some good years of your life between ages 26 and 30 in custody.
58To your credit in that time, you completed over four years an aquaculture course via Deakin University.
59After being released you worked in the construction industry including at gas plants, power stations and in the mining industry, at times working as a fly in fly out worker. You were employed working on the desalination plant in Wonthaggi and in the construction industry on Curtis Island, Queensland. You told Mr Cummins that the construction and FIFO work involved you in drug use due to the long hours and hard work. More recently you have again been engaged in fly in fly out employment which is ongoing.
60Although your overall prospects of full rehabilitation must be guarded given your criminal history, you have good prospects of making a contribution to the community through employment.
61I also see your participation in counselling through your CCO in the past year or so as a positive and a sign that you do still have capacity to turn yourself around.
Plea of Guilty
62I take into account you were very cooperative with police, twice attending for interview and both times making significant admissions. You returned property voluntarily.
63I take into account that you indicated your intention to plead guilty at a very early opportunity. I can conclude that your cooperation and ultimately your plea of guilty is evidence of remorse and you receive the benefit of that fact. You also receive the benefit of your plea saving the Court and the community the time and cost of a criminal trial.
64I note there have been delays in finalising this matter and which are no fault of yours. In fact, there was a delay of five months in charging you after your second record of interview. Having been charged in October 2022 you then entered your plea of guilty at a committal mention on 10 January 2023. You were ultimately arraigned in this court almost 12 months ago on 1 September 2023. Funding was an issue and then an adjournment was sought to obtain the psychological report.
65Delay is ordinarily relevant in two ways. I take into account the fact that these charges have been hanging over you for some time and this has no doubt caused you some stress.
66It is also usually relevant when assessing prospects of rehabilitation. Unfortunately, as I have outlined, you appear to have reoffended in various ways.
Current sentencing practices
67I have had regard to current sentencing practices for this offending, having been assisted by Counsel in submissions by reference to a number of cases.
68As always there are similarities and differences between both offending and offender. In particular with respect to theft offences, there is a wide variety of factual situations including for example, matters where there is a breach of trust or theft by way of sophisticated and systemic operation. Neither of those descriptors apply to your offending. There are a number of cases regarding theft of vehicles which are more in line with the factual scenario here.
69Ultimately, I am required to impose a just sentence in all the circumstances before me and that is what I have endeavoured to do.
70The features that loom large here are that these thefts are repeated, premediated and items of high value.
Submissions of Parties
71Your counsel submitted that I could impose a community correction order for this offending, either alone or in combination with imprisonment.
72The Prosecution submit that it must be met by a head sentence and non-parole period.
73In my view the circumstances here warrant a term of imprisonment. You must have known when you were affecting the thefts of those boats in the middle of the night, with a co-offender and armed for the job, that if you were caught you would be imprisoned. You must have been aware of that fact, in particular given your prior history.
74It is sometimes tempting to diminish the seriousness of property theft however, these items were items of value and items belonging to other people. Their loss no doubt had an impact on their owners. Boats are often prized possessions for owners to enjoy. The loss, even temporary, represents not simply their monetary value but the pleasure they bring to owners.[2]
[2] Donnelly v The Queen [2020] VSCA 151
Sentence
75In the circumstances of your case Mr Aisbett, the sentence I impose will be as follows. If you could stand please.
76On Charge 1 of theft, you are convicted and sentenced to 16 months' imprisonment.
77On Charge 2 of theft, you are convicted and sentenced to 13 months' imprisonment.
78On Charge 3 of theft in relation to the number plate, you are convicted and sentenced to three months' imprisonment.
79On Charge 4 of theft of a number plate, you are convicted and sentenced to three months' imprisonment.
80On Charge 5 of possession of drug of dependence, you are convicted and sentenced to two months' imprisonment.
81On Charge 6 of possession of a drug of dependence, you are convicted and sentenced to seven days' imprisonment.
82On summary Charge 8, possession of the prohibited weapon, you are convicted and fined $500.
83The sentence on Charge 1 will be the base sentence, that is the sentence of 16 months. In relation to cumulation I make the following order. That three months of the sentence on Charge 2 be cumulative upon the base sentence. I make no other order for cumulation. The total effective sentence therefore is one of 19 months' imprisonment.
84I direct that you are to serve a minimum term of 12 months' imprisonment before becoming eligible for parole.
85I declare that you have served 14 days' imprisonment and that that term should be reckoned as having been served under this sentence.
86But for your plea of guilty, the sentence I would have imposed would have been one of four years' imprisonment with a non-parole period of two years and three months' imprisonment.
87I have received draft orders for disposal and forfeiture. I note that these are not opposed and I propose to make them in the terms sought.
88Have a seat there, Mr Aisbett, and I will just ask counsel if there are any matters to raise. Mr McCarthy?
89MR McCARTHY: Nothing from the prosecution perspective.
90HER HONOUR: Mr Andreou?
91MR ANDREOU: Other than the forfeiture order that is before the court, that is not opposed, an application and the disposal order is not opposed, Your Honour.
92HER HONOUR: Thanks very much. All right I will leave the Bench. If Mr Aisbett can be just given a moment with his mother before he is removed, thank you. Thank you counsel for your assistance.
93MR ANDREOU: As the court pleases.
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