Director of Public Prosecutions v Aldcroft
[2021] VCC 1426
•4 June 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-01127
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RUSSELL ALDCROFT |
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JUDGE: | HER HONOUR JUDGE CANNON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 June 2021 | |
DATE OF SENTENCE: | 4 June 2021 | |
CASE MAY BE CITED AS: | DPP v Aldcroft | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1426 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence - Contravention Community Corrections Order- Contravention by way of non-compliance - History of drug abuse and homelessness
Cases cited:Bugmy v R (2013) 249 CLR 57
Sentence: Contravention proven - Sentence to 1 months’ imprisonment on this charge - CCO cancelled and re-sentenced on the original charges - Convicted and re-sentence to 18 months imprisonment (aggregate term) - 456 days’ imprisonment declared as having already been served as part of the sentence imposed - s.6AAA Sentencing Act 1991
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms S. Renwick | Solicitor for the Office of Public Prosecutions |
| For the Offender | Ms E. Byrt | Papa Hughes Lawyers |
HER HONOUR:
1 Russell Aldcroft, on 18th October 2019 Her Honour Judge Pullen sentenced you to an aggregate term of imprisonment of 15 months in combination with a 2 year CCO in respect of one charge of armed robbery which has a maximum penalty of 25 years’ imprisonment and commit an indictable offence whilst on bail which has a penalty of 30 penalty units or 3 months’ imprisonment.
2 You have now breached the CCO by way of non-compliance and it is the agreed position as between you and the Crown that the CCO should be cancelled and that you ought be re-sentenced.
3 I agree that this is the appropriate course.
4 In doing so, I have had regard to the factual basis for the original offending which Her Honour summarised at the time she sentenced you, and re-sentence you on the same factual basis-briefly, you attended a Kmart store on 6th March 2019 and having placed a number of men’s clothing items including boots into a trolley you and having , ripped the tags off a number of items, you went to the gardening section of the store and changed into the boots you had taken from Kmart, then put a number of other items into your bag or held some against your body then left the store. When you were confronted by two loss prevention officers, Valentina Dimovska ('Dimovska') and Larissa Sinnott ('Sinnott'), you kicked off the stolen boots then handed the bag to Ms Sinnot but then threatened them with a syringe saying you had HIV.
5 You yelled at Ms Sinnot, “I want my bag. Give it to me or I'll stab you.” You pulled the cap off the syringe and lunged towards her, yelling, “Give me the fucking bag.”
6 Sinnott dropped the bag and you picked it up before running off. You were subsequently arrested and told police that you needed clothes. The bag of items you had stolen were recovered.
7 During a recorded ROI, which was largely “no comment” interview, you stated, “What can I say? I fucked up.”
8 At the time of this offending, you were on bail which gives rise to the summary charge.
9 Your offending is serious and warrants a punishment which is just in all of the relevant circumstances and must be appropriately denounced. You behaved in a dreadful manner toward two people who were doing no more than trying to do their jobs. While your offending lacked planning and sophistication, this was no comfort to the two victims and reflects brazen and wanton behaviour on your part.
10 There were no victim impact statements presented to the Court, but it would take no imagination to know that your actions toward the two loss prevention officers, who were simply trying to do their job, would have been most frightening-obviously this was your intent with your nasty attack with the syringe and threat that it contained HIV. Your conduct had the effect of having the two officers back away so my inference in relation to the impact upon them is a safe one.
11 As Her Honour did, I allow for a significant discount in the sentence you would otherwise receive due to the early stage at which you indicated your preparedness to plead guilty to the offences as you saved the witnesses the time and trouble of giving evidence and the community the time and expense of contested proceedings.
12 I adopt Her Honour’s preparedness to accept that your pleas of guilty indicated some remorse for your offending, although, this has to be seen in the context of your prior criminal history in particular for dishonesty offences. In this regard, I refer to Her Honour’s sentencing remarks and adopt her summary of your criminal history which is relevant to the offending now before me as you have a history for dishonesty and violence offences.
13 Concerningly, you were subject to a CCO when you committed the offences before HH and now before me for re-sentencing, which is a matter of aggravation.
14 Ms Byrt, who appeared on your behalf at the plea hearing before Her Honour Judge Pullen, acknowledged you had a prior criminal history and pointed to a period between 2013 and 2017, where you appeared to have had some stability in your life and a lack of court appearances during that period of time. I also factor that in and HH’s remarks in respect of the summary matter.
15 I take into account the background matters that were put before HH and which are relied upon before me.
16 Your are now 28 years old but you were 26 at the time of the offending. You were born in Queensland and by the age of seven, you had lived in Queensland, New South Wales, Western Australia and back to New South Wales. You grew up being exposed to significant domestic violence between your parents; both suffering injuries requiring hospitalisation on numerous occasions. Your parents also abused drugs and alcohol.
17 When you were 7 you were removed from your parents’ care and you were placed into foster care.
18 You ran away and returned to your parents’ house to reside with them. However, after one year, they sent you back to foster care. You felt abandoned by their actions.
19 You were placed into a group home, then Acmena Youth Justice Centre as there was nowhere else for you to live. No doubt, such a primitive approach did not help you in your upbringing.
20 Your schooling was significantly disrupted due to your situation. You attended approximately 10 primary schools throughout New South Wales and Western Australia and 5 different high schools in New South Wales during his time in state care.
21 After leaving school, you began working in a factory in Laverton as a pick packer. You worked at the factory for 2 years before obtaining employment laying turf for the following two years. You returned to factory work for a further year, before becoming unemployed.
22 You met your ex-partner when you were both in high school and you had your first child when you were 20 years old. You have three children together who are 7, 6 and 2. You were a stay at home father for 1 year to your oldest child.
23 When you were 22 years old, you were introduced to heroin, (although it is evident that you were exposed to drug use a long time before this). You had been forced to leave the family home after a fight with your father and you had been homeless for 4 months, sleeping rough and couch surfing.
24 Since this time, you have struggled with homelessness and addiction to heroin.
25 At the time of the initial offending in 2019, you were homeless, sleeping rough in squats in Sunshine or couch surfing. Your father had asked you to leave the family home again as You had relapsed into heroin use. I understand that your parents had recovered from drug addiction a number of years ago.
26 You spent 15 months in custody prior to being released on 3 June 2020 onto the current CCO.
27 During the Christmas period of 2020, you again became homeless. You were couch surfing and living in squats. You lost your phone during this time and did not have the resources to get a new one.
28 You are currently at Port Phillip Prison and on the waitlist for a job and courses whilst in custody, however due to COVID-19 all courses and work have stopped.
29 I have factored in that during some of your time in custody you have been and will be subject to Covid 19 restrictions which have made and will make time in custody more difficult than would otherwise be the case.
30 I also allow for the fact that you have had an extremely deprived background, giving this full effect in the ways contemplated in Bugmy.
31 I understand that you are currently awaiting a Doctor’s appointment in custody to be placed on the methadone program but I was told that you are abstaining from drug use.
32 I was told that you have been charged with subsequent offences which are of a similar nature to the ones now before me, although the most serious of these is a robbery rather than an armed robbery. The next hearing date is 13th July 2021.
33 In re-sentencing you, I have factored in the degree to which you complied with the CCO imposed by Her Honour.
34 Upon your release from custody after serving 15 months’ imprisonment, you reported to correctional services within two working days as directed. You participated in 23 supervision appointments, with only 3 unacceptable absences before disengaging with the service from 7 January 2021. During these appointments, your attendance was deemed satisfactory. Having said this, the contravention report records that you engaged at a superficial level.
35 You also engaged in a complex episode of Alcohol and Other Drug treatment through Djerriwarrh Health via ACSO-COATS. You attended nine sessions, with one unacceptable absence.
36 You were remanded in custody between 25 September 2020 and 28 October 2020. Upon your release, you re-engaged on the order and attended a RAPIDS AOD assessment on 10 December 2020.
37 You were on the waitlist for offending behaviour programs but you were unable to complete this condition because you were remanded in custody.
38 Clearly, your drug abuse and disadvantaged background are both matters that need to be addressed through appropriate treatment and counselling. You are now 28 and the sun is setting on any claim of being a youthful offender with any emphasis on the need to focus on rehabilitation.
39 In all of the circumstances, as Her Honour did, I allow for some moderation in your sentence in view of your disadvantaged background, but I must place fairly solid weight on protection of the community in circumstances where your prospects of rehabilitation are guarded. Specific deterrence and general deterrence are also prominent sentencing factors, even allowing for some reduction in the weight to be attributed to these due to Bugmy considerations.
40 It appears that you appreciate the link between drug use and offending to the point where you are now wanting to finalise matters in this Court in order to be accepted into the Magistrates drug court in respect of your subsequent offending. Your Counsel assured me that you would meet the criteria for being accepted into this regime and took me through its onerous requirements, which would see you closely monitored and treated, as well as being given stable accommodation, which is another problem that has plagued you in the past.
41 I am dealing with you for contravention of the CCO in respect of non-compliance only, and although your level of engagement was not optimal, it was still rather substantial.
42 Your Counsel submitted that I ought impose a straight sentence of imprisonment which would see you able to take part in the intensive drug court regime in respect of your subsequent offending. The Prosecution submitted that this would be open in your case.
43 I agree that it would be in the best interests of the community and in your best interests to impose a sentence which enables you to pursue rehabilitation through the drug court but it is my duty to impose a proper sentence on a re sentencing exercise such as this. I am able to do this by imposing a sentence of imprisonment of the kind agitated for by your Counsel having taken all relevant matters into account.
44 In respect of the breach offence I find the breach proven and you are convicted of this offence. I sentence you to 1 month imprisonment for this offence.
45 I cancel the CCO previously imposed by HH and I set aside the sentence that HH previously imposed.
46 You are convicted of the charge on the indictment and of the summary offence and I sentence you to an aggregate term of imprisonment of 18 months.
47 I declare that you have already served 456 days by way of pre-sentence detention.
48 If not for your pleas of guilty I would have imposed the same sentence as Her Honour Judge Pullen that being 5 years’ imprisonment with a non-parole period of 3 years’ imprisonment.
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