Director of Public Prosecutions v Anderson
[2021] VCC 278
•16 March 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
Case Nos. CR-20-01623
CR-20-01629
CR-18-02338
AP-19-1141
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KURTIS ANDERSON JOSHUA COLLIVER |
---
JUDGE: | HER HONOUR JUDGE LAWSON |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 11 February 2021 |
DATE OF SENTENCE: | 16 March 2021 |
CASE MAY BE CITED AS: | DPP v ANDERSON & ANOR |
MEDIUM NEUTRAL CITATION: | [2021] VCC 278 |
REASONS FOR SENTENCE
---
Catchwords: Criminal law – sentencing – co-accused acting together and singly – multiple charges of theft – theft of firearms – burglary – arson (Colliver) – obtain financial advantage by deception – handle stolen goods (Anderson) – prohibited person possession of a firearm (Anderson) – possession of drugs of dependence – related summary charges for both Anderson and Colliver – early plea of guilty – prior criminal history – disparity in sentence – period of imprisonment imposed.
---
APPEARANCES: | Counsel | Solicitors |
For the DPP | Ms S Lenthall (Plea) Ms I Basedow (Sentence) | Abby Hogan, Solicitor for Public Prosecutions |
For the Accused Anderson | Mr J Van Arkadie (Plea) Mr G. Cooper (Sentence) | Victoria Legal Aid |
For the Accused Colliver | Mr N Rolfe (Plea) Ms R. Healey (Sentence) | Rolfe Criminal Law |
HER HONOUR:
1Kurtis Anderson, you pleaded guilty on indictment to seven charges being two charges of theft, one charge of theft of a firearm, one charge of obtain a financial advantage by deception, one charge of handling stolen goods, one charge of being a prohibited person in possession of a firearm, and one charge of possession of a drug of dependence, namely, Cannabis L.
2In addition, you consented to related summary matters being transferred, pursuant to s.145 of the Criminal Procedure Act 2009, and entered pleas of guilty to summary Charge 6, commit indictable offence whilst on bail, summary Charge 7, contravention of a conduct condition of bai namely breach of curfew, summary Charge 8, unlicensed driving, and summary Charge 9, careless driving of a motor vehicle.
3Joshua Colliver, you pleaded guilty to three charges of theft, one charge of theft of a firearm, one charge of burglary, one charge of arson, one charge of obtain financial advantage by deception, and one charge of possession of a drug of dependence, namely, methylamphetamine.
4In addition, you consented to summary charges being transferred pursuant to s.145 of the Criminal Procedure Act 2009, and you entered pleas of guilty to Charge 23, non-prohibited person possess firearm, and Charge 25, fail to answer bail.
5Each of the offences are serious and that is reflected in the maximum penalties that are prescribed by Parliament and they are as follows: Theft of firearm,
15 years' imprisonment, theft, 10 years' imprisonment, obtain financial advantage by deception, 10 years' imprisonment, prohibited person possess firearm, 10 years' imprisonment, possess drug of dependence, 1 year imprisonment if the court is satisfied on the balance of probabilities that the offending was not for trafficking purposes and that is not alleged by the prosecution in relation to this case in relation to the methylamphetamine. Possession of drug of dependence, Cannabis L five penalty units as a small quantity, handle stolen goods, 15 years' imprisonment, arson, 10 years' imprisonment, burglary, 10 years' imprisonment, non-prohibited person possess firearm, 2 years' imprisonment, commit indictable offence on bail and contravene conduct condition of bail, three months' imprisonment, unlicensed driving, three months' imprisonment, careless driving 12 penalty units first offence, and fail to answer bail, two years' imprisonment.6In addition, you have both admitted your prior criminal histories. Mr Anderson, your criminal history is much more extensive, and it is reflected in various convictions in respect to five court appearances and I will talk about that later.
7Mr Colliver, you have three court appearances, spanning a period from 7 June 2010 to 3 July 2017, that predominantly relates to driving and dishonesty type offences. In the past, you have received with conviction adjournments and with conviction fines, as well as a Community Correction Order which you completed satisfactorily.
8I shall now proceed to sentence you both on the basis of the prosecution amended summary of opening that was dated 19 January 2021.
9Kurtis Anderson, you were aged 23 at the time of the offending and you are now 23, and Joshua Colliver you were aged 29, you are now 30.
10Between 28 June 2020 and 11 July 2020 you both committed 19 driving and property related offences some together and some separately, around the area of Rochester and Echuca in rural Victoria.
11I will proceed to the particulars of each charge.
12On 28 June 2020 at 12.28 am, Colliver you attended Shell Service Station Burnside, filled your car with petrol, and drove away without making any attempt to pay. That is Charge 1 theft, Colliver only.
13Charges 2 and 3 relate to items taken from Bonn Road Rochester and involve both of you.
14On Saturday, 4 July 2020 at about 4.30 am you both attended a mixed farming property in Bonn Road Rochester. Ben Acocks, the property owner, was asleep inside the residence located on the property. He was awoken by the sound of a vehicle taking off quickly. Later in the morning around 7.30 am, Mr Acox discovered that his 2015 Toyota HiLux Dual cab utility value approximately 30,000 had been stolen. The vehicle had been parked, unlocked, with the keys inside, in a workshop on the property.
15Mr Acocks’s wallet, containing $700, various licenses and bank cards, as well as a set of jumper leads, and a butcher's knife were located inside the vehicle that was stolen. On the back tray of the ute, there were various items including a large heavy-duty steel box, a Peerless air compressor, Blue-Point rattle gun, and a steel chainsaw. That is Charge 2, theft of a motor vehicle and other items, for both Anderson and Colliver.
16Mr Acocks also discovered that the pad bolt housing to a gun safe located inside the workshop had been cut open and three firearms, Remington 12-gauge shotgun, a Remington 22-250 rifle, and an Anschutz .22 rifle had been stolen, as well as ammunition and firearms parts. The firearms were valued at approximately $4500. That constitutes Charge 3 theft of firearms, Anderson and Colliver.
17Police attended the scene and collected CCTV footage which showed you, Anderson, getting into the ute near the workshop and driving away at 4.22 am.
18On 7 July 2020, three days following the theft of the vehicle, Anderson, you were driving Mr Acocks’s white ute on Low Road Rochester at about 5.30 am. At the time, you were not the holder of a valid driver's license. That is related summary Charge 8 unlicensed driving, Anderson.
19Whilst driving, you lost control of the vehicle and collided with a tree. That is related summary Charge 9 careless driving, Anderson.
20After the collision, Anderson, you used a mobile phone to contact Colliver multiple times. At about 7.10 am later that morning a person who was working nearby saw two stationary vehicles parked side by side at the location of the collision. One of the cars was a red Sedan. As the red Sedan drove away, the witness saw a fire starting in the remaining vehicle. He approached the vehicle and discovered that Mr Acocks’s white ute had been crashed into a tree and was on fire. The witness contacted emergency services.
21The burnt-out vehicle was later examined by an arson chemist, Mr Xydias. He noted the overall nature and degree of burning suggested a single point of origin of fire, about the front seats, and attributed the cause of the fire to a moderate amount of flammable liquid been poured over the front part of the rear cargo tray. That is Charge 9 arson, and that is for Mr Colliver only.
22Mr Acocks attended the scene and identified his vehicle, as well as a number of the items that had been destroyed by the fire. He cancelled his bank cards on 4 July 2020, the day the vehicle and the other items were stolen. However, between 4 and 11 July 2020, Anderson, you used those stolen bank cards to make 11 separate purchases for things such as tobacco, phone credit, food and drink, petrol, and personal registration plates, with a total value of $593.14; that is Charge 4 obtain financial advantage by deception, Anderson only.
23On 6 July 2020, Colliver, you used Mr Acocks’s stolen bank card to purchase $55.65 worth of food and drink from Tatura IGA and that is Charge 8 obtain advantage by deception, Colliver only.
24On 11 July 2020, Anderson you attended the Rushworth Bendigo Bank ATM and used Mr Acocks’s stolen bank cards to withdraw $950 in cash across two transactions. That is Charge 10 theft, Anderson only.
25On the evening Saturday 4 July 2020 to Sunday 5 July 2020, Colliver you attended a farm situated at 1 Quarry Road Benalla and broke into a machinery shed with intention to steal. That is Charge 4 burglary, Colliver only.
26The following morning on 5 July 2020, the property owner Tony Marrone discovered his custom-made galvanised steel trailer with a 1300 diesel tank had been stolen from the shed. Prior to the trailer being stolen, it had been filled with a large of volume of diesel from a nearby diesel stand, which had had its lock smashed. That is Charge 6 theft, Colliver only.
27Anderson, you later contacted an associate James Laurie, and negotiated the sale of Mr Marrone's diesel trailer and diesel for $600 cash. Mr Laurie took possession of the trailer. Police later recovered the trailer from his property and returned it to Mr Marrone, and that is Charge 7 handle stolen goods, Anderson only.
28At the time of the offending, Anderson, you were on bail for burglary, theft, a number of driving charges, and contravening a family violence intervention order, having been granted bail by a Magistrate on 13 May 2020. That constitutes related summary Charge 6 commit indictable offence whilst on bail, Anderson only.
29The grant of bail included a condition of curfew that you were required to comply with between 10 pm and 6 am daily and you breached that condition by attending the Bonn Road on 4 July in the early hours, and also attending the BP Mooroopna at 11.02 pm on 5 July 2020, and attending Liberty Shepparton at 1.29 am on 10 July 2020. That is related summary Charge 7 contravene conduct condition of bail, Anderson only.
30On Friday 17 July 2020, police executed a search warrant where you were both living in Rushworth at which time you were both arrested, and your mobile phones were seized. Anderson, you assisted police by locating various stolen items including the three firearms, ammunition, firearms parts, and
Mr Acocks’s bank cards and other items.31Anderson you were a prohibited person under the Firearms Act at the relevant time because, a) not more than five years had expired since you finished serving a term of imprisonment of not less than five years for indictable offences, and b) not more than five years had expired since you were subject to a final family violence intervention order. That is Charge 11, prohibited person possess firearm, Anderson only.
32Colliver, you did not hold a licence permitting you to possess firearms under the Firearms Act, and therefore you have been charged with related summary Charge 23 non-prohibited person possess Category A longarm without license.
33Anderson, police also located a zip lock bag containing less than 15 grams cannabis in your bedside drawer in the bedroom. This is a small quantity within the meaning of the Drugs, Poisons, & Controlled Substances Act 1981, and that constitutes Charge 12 in relation to possess drug of dependence Cannabis L, Anderson only.
34Colliver, a zip lock bag containing less than two grams of methylamphetamine was found in a sunglasses case in your red Sedan. This is less than the trafficable quantity within the meaning of the Drugs, Poisons, & Controlled Substances Act 1981, and that is Charge 13 possess drug of dependence, Colliver only.
35The three firearms, ammunition, firearms accessories, the toolbox, the butcher's knife, and bank cards were all returned to Mr Acocks.
36Following your arrest, you were both taken to Echuca police station where you participated in a record of interview. Anderson, you exercised your right to make no comment to the allegations, and Colliver, you denied any involvement in the offending. You were both charged with various offences. Anderson, you were remanded in custody.
37Colliver, you were bailed to appear at a filing hearing three days later on 20 July 2020. However, you failed to appear on that date, and a warrant was issued for your arrest. That is related summary offence 25, fail to answer bail, Colliver only.
38On 5 September 2020, Colliver you were interviewed a second time, during which you made a number of admissions in relation to attending Bonn Road Rochester. You told police that you attended the property for guns, you confirmed you were present when Mr Acocks’s white ute was stolen, but that you did not physically take the vehicle. You confirmed there was a toolbox, some jumper leads, and various items in the ute. You also confirmed that you had a part in taking the diesel trailer from Quarry Road and that you put diesel in the trailer before removing it from the property.
39You also confirmed that you responded to Anderson's request to attend after he told you that he had crashed Mr Acocks's ute into a tree. You took the tools out of the ute, and set the ute alight using petrol as you were worried that Anderson's blood would link you both to the stolen vehicle.
40The impact on Mr Acocks in respect to the offending has been serious. In his victim impact statement that was declared 8 February 2021, he says that he was deeply shaken, and has had many sleepless nights since the offending. He conducts a farming operation at the property on Bonn Road, Rochester and the destruction of the ute has been very disruptive. By reason of your offending, he lost many tools of trade, spare parts, and also his wallet containing his credit cards and licenses. This meant that he had to try to recoup his losses through his insurer at great inconvenience; there were uncovered losses, as well as increased premiums as a result of his claim.
41He now has increased the security on his property because of the offending, and those further security efforts and storage expenses, have meant that he has incurred another $10,000 in costs. Furthermore, he was inconvenienced by the credit card fraud and usage and has spent many hours trying to reorganise closed accounts and recovering funds.
42In sentencing you, I must have regard to both general and specific deterrence, the need for just punishment, and also protection of the community.
43I now turn to your respective personal circumstances and history.
Kurtis Anderson
44Kurtis Anderson, this is the second occasion where you have appeared before the County Court to be sentenced for indictable offences.
45On 29 November 2018, you were convicted and sentenced in the County Court at Bendigo; that related to one charge of aggravated burglary and one charge of commit indictable offence whilst on bail.
46In respect to the aggravated burglary charge, you were convicted and sentenced to 98 days' imprisonment, equivalent to time served, to be followed by a Community Correction Order that was of three years' duration with supervision and also special conditions were imposed relating to unpaid community work and also for the need to undertake treatment and rehabilitation for drug dependency as well as offence behaviour programs.
47In respect to a summary Charge of commit and indictable offence whilst on bail, you were convicted and sentenced to one-month imprisonment. The sentence was directed to be served concurrently.
48Thereafter, you contravened the Community Correction Order and you were also dealt with in respect to further offending.
49On 8 May 2019, you were sentenced at Echuca Magistrates' Court to a total effective sentence of one year and two months' imprisonment with a non-parole period of six months fixed, in respect to one charge of theft, one charge of unlawful assault, one charge of commit indictable offence whilst on bail, one charge of aggravated assault on a female, one charge of burglary and I note that was committed prior to the Community Correction Order commencing, one charge of without authority or excuse entering a private place (also committed prior to the Community Correction Order commencing), one charge of persistent contravention of a Family Violence Intervention Order, and one charge of contravene a Family Violence Intervention Order (both of those charges committed prior to the Community Correction Order commencing).
50You were brought before the County Court in respect to that contravention and in addition, you appealed against the sentence imposed at the Echuca Magistrates' Court.
51On 16 September 2019 in the County Court, the contravention was found proven and the order in respect to the earlier indictment was confirmed, so that you could continue with your Community Correction Order upon your release from custody. In relation to the further offending, the Magistrates' Court's orders were set aside, and you were sentenced to a further Community Correction Order of two years' duration with conviction, and subject to supervision and treatment and rehabilitation for drug dependency, as well as behaviour programs.
52By reason of this current offending, you have therefore contravened both of those Community Corrections orders, and therefore in addition to being sentenced for the present indictment, you are to be dealt with in respect to the contravention of the two earlier Community Corrections orders.
53Through your counsel, Mr Van Arkadie, you admitted that you contravened both Community Correction Orders and also admitted the contents of the contravention reports that were provided to the court from Brittany Johnson, Advanced Case Manager, Bendigo Community Corrections Services. Her reports were dated 20 January and 28 January respectively.
54Having regard to your poor performance in relation to both orders, the recommendation is that both orders be cancelled, and that you be re-sentenced. In view of what has occurred, the court will be adopting that recommendation.
55On 16 September 2019, after serving 161 days, you were released from custody. You attended the first appointment with Community Corrections services on 18 September 2019. You were re-inducted in relation to both Community Correction Orders. You acknowledged your understanding by signing the rules and regulations together with referral forms in respect to the conditions of those orders. You were referred to the Second Chance program, where you attended on one occasion only on 14 October 2019.
56On 27 January 2020, you were re-remanded into custody, after you disengaged from Community Correctional services in mid-November 2019. On 13 May 2020, you were released on bail with several conditions, one being to engage in the Second Chance program, and follow directions regarding referrals for counselling and to reside at an address in Bendigo.
57Although not a condition of bail, you were encouraged to re-engage with Community Correctional services. You failed to make any contact with Community Corrections services. Second Chance arranged for you to be referred to a psychologist for counselling and you only attended one of three appointments. You attended two appointments with the Salvation Army for drug and alcohol counselling. On 17 July 2020, you were re-remanded into custody.
58Anderson, in the revised sentencing remarks dated 29 November 2018 this court set out your full history and background. Briefly, you are a young man who is now 23 years of age and you have a history of complex trauma. You were born in Echuca and are one of three children born to your parents' relationship. You also have four older half siblings to your father's first marriage.
59Your siblings range in age between 23 and 56. Your father Rowan Anderson is deceased. He was a blacksmith, farrier and cattle brander. He was a person to whom you were very attached. You looked up to him and respected him. You were very upset when you were told that he was diagnosed with a terminal illness in early 2018, and after approximately two short months he died in April 2018. You were in your mid-teens at that time, a very young and impressionable age. You were devastated by the loss of your father. You have suffered a documented Complex Grief Reaction.
60Your mother Connie lives in Rochester and works as a foster carer with Anglicare and currently she has two children under her care. While she has been providing you with some support, you are unable to live with her, because of her role as a carer.
61Following your father's diagnosis and death, you experienced extreme difficulties coping, and unfortunately that impacted upon your relationship with your mother. Your relationship with her broke down such that you left home at a very young age with no support. You were taken in for a few months by a school friend and while you were able to finish Year 10. You started but did not complete Year 11.
62At around that time, you began using methamphetamines and had no stable accommodation or means of support. Over the following two years, you became increasingly dependent on drugs, and unfortunately this drug dependency has blighted your late teenage years into your early adulthood and that is reflected in the criminal history. Your complex trauma reaction contributed to the breakdown of your relationship with your mother, led to your disengagement from school, and ultimately your addiction to drugs.
63You continue to experience a distant relationship from most of your siblings with the exception of an older half-brother, Dean. You have been able to speak with him over the course of the time that you have been held in custody. You were estranged from your mother for about four years, but that relationship is now largely restored, and currently you speak with her weekly.
64Over the years, since leaving school you have worked in a number of roles, including part-time work washing trucks and branding cattle, working on tomato farms, working as a roof labourer, brick laying, also work as a farm hand on a dairy, tyre fitting, tiling, and general farmhand work. When you are not using drugs, you are a capable worker and you are considered to be competent.
65You have been using your time productively whilst in gaol, working as a meal billet at the Quarantine Unit at the Ravenhall Correctional Centre, and you have performed this work since September 2020.
66Your last full-time employment was with priority contractors, undertaking a concreting apprenticeship. Ultimately, your aim is to recommence working and to complete that apprenticeship.
67Mr Lucas Howse, the owner-manager of Priority Contractors attests to your good work ethic.
68Insofar as your drug use and efforts towards rehabilitation, whilst in gaol, you have maintained your abstinence. You had completed previously completed a 44-hour alcohol and drug program facilitated by Caraniche whilst in prison, and you also attended AA and the NA meetings in the past, which you found helpful.
69Following your release from custody on two occasions, you quickly relapsed into drug use and offending. You accept responsibility for your relapse and accept that you require active support and treatment for your drug dependency into the future.
70You now have completed an Ice & Me and Cannabis & Me programs in November 2020. Unfortunately, due to the restrictions enforced due to the COVID-19 pandemic, no more intensive programs are currently available. You recently learnt there are NA meetings at the prison which you have now expressed an interest in attending.
71You are not in a relationship currently. You were previously in one with
Ms Lisa Kellow. That relationship was marred by instances of domestic violence and also mutual drug use. You continue to have weekly contact with a friend, Ms Watson, and she has indicated that you may live with her upon your eventual release, subject to her personal circumstances.72You enjoy general good health, although you do suffer tendon and nerve damage. That was as a consequence of injuries inflicted during the aggravated burglary that was the subject of the earlier indictment.
73I have had regard to the contents of the report of Ms Alison Mynard, clinical psychologist dated 9 May 2020. She confirms the diagnosis of persistent complex bereavement disorder related to the loss of your father during your early adolescence, generalised anxiety disorder with panic and stimulus use disorder. She also says that you suffer from high levels of stress, severe anxiety, and depressive symptoms. She noted a clear relationship between your offending, drug addiction, and underlying depression and grief symptoms.
74In May 2020, you were finding time in custody more onerous having regard to your anxiety symptoms. Overall, I accept her expressed opinion, and I accept those mental health conditions do make your experience in custody more onerous, and I have moderated your sentence accordingly to a modest extent. They also underscore a need for you to seek support and treatment for your conditions upon your eventual release.
75I have also had regard to the impact of the restrictive conditions that you are being held under, attributable to the COVID-19 pandemic. It is accepted that the result and measures in custody, and the general anxiety about the unknown impact the COVID-19 pandemic poses to the health outcomes, means that it is a source of anxiety for all prisoners.
76You have spent a significant period of 2020 and 2021 in custody, during the time of restrictive regimes being in place which included no in-person visits from family or friends, and limited access to courses and programs. In addition, you have been required to serve periods of quarantine upon receipt and transfer within the prison system.
77Given your age, it is important that there be some emphasis placed upon your potential rehabilitation prospects. Presently, my view is that those prospects are guarded, particularly given that you have not been able to demonstrate outside of the supported confines of the gaol environment that you are able to cope with and deal with your underlying mental health conditions, as well as your drug addiction.
78Given your past history and antecedents, and the failure to take up the opportunity to engage in rehabilitation programs, I am very guarded about your prospects. Nonetheless, I do consider that there is some hope for the future, and you have been doing well in prison despite your situation as I have already described.
79Clearly, you are someone who has suffered greatly as a consequence of the loss of your father. That has blighted your maturation; you have spent many months in custody as an early adult, and there is a real risk if you continue to offend in the manner in which you do, that you will become institutionalised and this cycle of repeat offending and gaol will continue.
80It is of great concern to me that you involved yourself in this serious offending whilst on the Community Correction Orders that were put in place as a therapeutic aid for you to help you address your underlying offending behaviours, whilst you were subject to a conditional release. It is further concerning that you involved yourself in the theft of firearms, and possession of firearms. Furthermore, you committed those offences, those serious offences whilst in company.
81Insofar as the contravention of the two Community Correction Orders are concerned, there has been some, albeit relatively modest attempts at compliance.
82I have had regard to the circumstances of the offending that is the subject of those orders, and the time that you have already spent in custody in relation to that offending behaviour. You complied to an extent with both orders by reporting to Community Corrections and also by attending the three supervision appointments, and the appointment with Second Chance program.
83It is accepted that the Community Correction Orders were breached in the terms described in the relevant contravention reports. I accept that you entered an early plea of guilty in respect to those contraventions.
84I have taken into account all the matters put in mitigation on your behalf in respect to each of the matters before the court. I note you entered a plea of guilty at an early stage. There is real utility in those pleas, particularly having regard to the present circumstances relating to the COVID-19 pandemic. You have avoided the need for witnesses to be cross-examined and spared any further trauma by not having to come to court. You have facilitated the course of justice and your sentence will be discounted accordingly.
85I do accept that those pleas are indicative of some remorse and an acceptance of responsibility on your behalf.
86In respect to CR-20-01623, you did not participate in a record of interview as is your right. You exercised your right to silence, however, I note that you made some admissions upon your arrest and you were also cooperative with the police and assisted them to locate some of the property.
87In respect to CR-18-02338 findings were made in the sentencing remarks that your plea was indicative of genuine remorse and you also made a personal apology to the victims at the plea hearing.
88In respect to AP-19-1141, you made full admissions in respect to the offending.
89In formulating the appropriate sentence for the present indictment, I have had regard to the principles of parity, however, your case can be distinguished from that of the co-accused Colliver. He has only a relatively limited criminal history, he is a little bit older than you, but he has only three previous attendances at court. His previous criminal history is not as serious as yours.
90As I have already discussed he has completed successfully a community-based order of 12 months duration. Colliver is also to be dealt with in respect to different offences and he has the additional charge of arson and a further offence of burglary and theft in relation to the theft of the diesel trailer and diesel belonging to Mr Marrone.
91I propose to sentence you in respect to each of the charges on the indictment and the related summary charges. I find the contravention in respect to each of the Community Correction Orders proved. I accept the recommendations that each of those orders be cancelled, and that you be re-sentenced on the original offending.
92In respect to CR-18-02338, you previously served 98 days. In respect to
AP-191141, you have served 161 days' imprisonment. On each of those matters, upon your re-sentence, those periods will be declared as pre-sentence detention following the reasoning in Luu v The Queen [2018] VSCA 92. I have also had regard to the principle of totality.93In formulating the sentence, I have had regard for the need to impose just punishment to provide for your rehabilitation to provide for community protection and general and specific deterrence. On behalf of the community, I denounce your behaviour. This was a spree of offending committed over a two-week period. You offended together with Colliver as well as individually. Your actions impacted upon two victims, there was a victim impact statement from Mr Acocks that set out the consequences to him. There was none provided from
Mr Marrone, but common-sense dictates that he would have been impacted by your offending.94In relation to Mr Acocks, you targeted his rural property in the early hours of the morning, stealing firearms and other equipment, as well as his ute. You were aware at the time you negotiated the sale of Mr Marrone’s trailer, that it had been stolen.
95The impact of the offending upon Mr Acocks must be acknowledged. It was significant and in respect to his matter, specific deterrence is of particular importance.
96I will proceed to announce the sentence as follows, in relation to the current indictment. You will be convicted and sentenced as follows.
97Mr Anderson in relation to Charge 2 the theft of the ute on the property, you will be convicted and sentenced to 12 months' imprisonment. That is the base sentence.
98Charge 3 theft of firearms convicted and sentenced to six months' imprisonment.
99Charge 4 obtain financial advantage by deception which is a rolled-up charge, six months' imprisonment.
100Charge 7 handle stolen goods sale of the trailer and diesel petrol, convicted and sentenced to nine months' imprisonment.
101Charge 10 theft of the monies, six months' imprisonment.
102Charge 11 prohibited person possess a firearm, 12 months' imprisonment.
103Charge 12 possess the cannabis, convicted and discharged.
104I make the following orders for cumulation. Charge 2 is the base sentence. One month on Charge 3, three months on Charge 4, three months on
Charge 7, two months on Charge 10, and three months on Charge 11 are cumulative upon each other, and upon the sentence imposed on Charge 2.105That makes a total effective sentence of two years' imprisonment.
106In relation to the related summary charges, Charge 6 you will be convicted and sentenced to one month.
107Charge 7 convicted and sentenced to one month.
108Charge 8 unlicensed driving, convicted and sentenced to one month.
109Charge 9 careless driving, convicted and sentenced to nine months.
110I make these orders for cumulation. One month on Charge 6, one month on Charge 7, and three months on Charge 9, will be cumulative upon each other and upon the sentence imposed in respect to the indictment.
111Therefore the sentence for Mr Anderson for the indictment and related summary charges is two years and five months.
112I make a s.6AAA declaration, but for your plea of guilty I would have imposed four years to serve three years.
113I declare 242 days pre-sentence detention, and direct that that be entered into the records of the court.
114In relation to contravention of the Community Correction Orders, CR-18-02338 on the one aggravated burglary charge, I find the contravention proven. The Community Correction Order is cancelled, and you will be re-sentenced to serve one year and six months' imprisonment. I make a declaration of pre-sentence detention of 98 days, and direct that that be entered into the records of the court.
115In relation to AP-19-1141 I find that contravention proven. I order the Community Correction Order is cancelled and you will be re-sentenced as follows.
116These are the summary Charges 4, burglary, convicted and sentenced to three months.
117Charge 5, theft, three months.
118Charge 8, trespass, one month.
119Charge 11, contravention of family violence intervention order rolled-up charge, six months.
120Charge 17, contravene family violence intervention order, 3 August 2018, three months' imprisonment.
121Charge 18, contravene family violence intervention order, 3 August 2018, three months' imprisonment.
122Charge 19, theft, 1 February 2019, three months' imprisonment.
123Charge 20, unlawful assault, three months' imprisonment.
124Charge 21, commit indictable offence whilst on bail, one month.
125The base sentence is Charge 11, which is the contravention of the family violence intervention order, six months' sentence. I order a cumulation of one month on Charge 4, Charge 17, Charge 18, and Charge 20, be cumulative upon each other, and Charge 11, making a total effective sentence on the appeal of 10 months. I declare pre-sentence detention of 161 days on the appeal.
126There will be orders for cumulation in respect to the sentences I have imposed in respect to the contraventions of the Community Correction Order. One year of the sentence imposed with respect to the earlier indictment CR-1802338, and five months of the sentence imposed on AP-191141 is cumulative upon each other and on the sentence imposed on the current indictment.
127Therefore, an overall sentence of three years and 10 months, and I fix a non-parole period of two years.
128I make the Disposal Orders sought in respect to the various drugs and other items.
129I make the Forfeiture Orders sought.
130I make the Compensation Order against Anderson and Colliver in respect to Acocks's property for $30,000, which is agreed between the parties.
131Upon your conviction in respect to Charge 2, that carries a mandatory licence suspension or cancellation or disqualification pursuant to s.89(4) of the Sentencing Act for whatever period of time the court sees fit or three months. In respect to Mr Anderson and Mr Colliver, I will be making orders that any licence held by them will be cancelled and they will be disqualified from driving for a period of one year effective from today's date.
132So, that covers Mr Anderson. I turn now to Mr Colliver and your personal history and background.
Joshua Colliver
133You were born in Deniliquin, New South Wales. You have a sister and a brother, and two paternal half-sisters. You were aged five when your parents separated. Your mother suffered physical abuse at the hands of your father, who was an alcoholic. A permanent intervention order preventing him from having any contact with his former wife and children was in place. In 2000, your mother re-partnered, and you re-located to live on a farm in Rushworth, Victoria.
134Your step-father suffered depression and he too was abusive towards your mother. In 2012, your mother and your step-father separated. You continued to remain on living in the Rushworth area and attended school, including secondary school in Rushworth. You left school after completing Year 11 in 2007. You then were successful in working in an abattoir for about 18 months but your ability to function declined because of heavy drug use.
135You also held some labouring jobs working for multiple farms between 2009 and 2014. In 2014, you secured employment with Demand Responsive Transport, DRT, and held various roles in that company up until July 2020, when you were sacked from your employment due to this offending. You were made operations manager in March 2019.
136You have a long history of drug use, commencing with using cannabis regularly when you were 18. You stopped when you went back to live with your mother following the breakdown of your relationship with a former partner who is the mother of your two young children who are aged eight and five respectively.
137Since 2014, you have been using methylamphetamines sporadically and you were using at the time of the offending. You knew Kurtis Anderson through a mutual friend. You were both living together at the time of the offending. The context to the offending and the motivation for the offending was that you were using heavily and needed money for drugs.
138You acknowledge that the offending is serious and accept full responsibility for your offending behaviour. I have had regard to the apology that you have written, that was provided to the court.
139Whilst in prison, you have taken some tentative steps towards addressing your substance abuse issues, and you too, have completed the Ice & Me program. There are negative drug screens that have been produced for 11 January and 26 January this year.
140Upon your release, Andrew Healey, the managing director of Peerless Products Pty Ltd has confirmed there will be a full-time position available for you. You previously worked at that business for about two years, and he considers you to be a conscientious, reliable, and hardworking man.
141Your mother, Kerry Newell, provided a letter of support and she has expressed her willingness to continue to support you. In the past, she has assisted you. You were able to remain abstinent from drugs whilst living with her, and she also was able to support you in caring for your two young children.
142I read the report of Dr Zimmerman, forensic psychologist dated 8 January 2021. I have noted the contents. I have noted the past history of depression, anxiety, and substance misuse. She thought you were mildly anxious when she interviewed you on 25 November 2020.
143Following the breakdown of your long-term relationship in 2019, you demonstrated an ability to stop taking drugs, and you were able to care for your two children. She noted a period of suicidality in 2017. That was following the death of another friend who had committed suicide. You had some counselling over January 2018 to June 2018, at which time, you were noted to be suffering depression and anxiety, and were reporting heavy cannabis use. With cognitive behaviour therapy, your mood improved, and you were able to find work and re-establish contact with your former partner.
144You told Dr Zimmerman that your relationship with your former partner broke down in 2019, at which time you left Bendigo and you did not have any stable relationships. You were moving around and getting work whenever you could. You were using drugs heavily, including Ice and MDA.
145You now admit that setting the ute alight was idiotic, and you are deeply remorseful for what you have done. Since your incarceration, you have only had limited contact with your children. You have written letters to them repeatedly but have not received any replies. You are being held at Fulham Correctional Centre. You are being prescribed some antidepressants, Sertraline.
146You have taken part in some general education and your mood is described as being reasonably stable. On your eventual release, you aim to return to Bendigo to live with your mother. You have expressed a desire that you want to be a better father for your children.
147I accept the diagnosis of Substance Misuse Disorder currently in remission.
Dr Zimmerman also diagnosed depression currently in remission in the context of treatment with antidepressants, and recent work with a social worker. She considers that provided you stop using drugs, that you do have a good prognosis. You remain at risk of relapse in the context of relationship stressors, and issues in relation to access to your children.148Having regard to Dr Zimmerman's report and your apology, I consider that you do demonstrate a good understanding between the link between your drug use and the offending, and its consequences. You acknowledge that you were not thinking clearly or taking into account things that really mattered to you, such as your children at the time of the offending.
149You have expressed appropriate remorse and now accept that your behaviour was wrong. You are more reflective, and you have thought about what you can do in the future to stop any further reoccurrences of this sort of behaviour in the future.
150It is important for you to optimise your rehabilitation prospects, that you do take the steps recommended to address your drug misuse when released from custody. Dr Zimmerman recommends that ACSO can link you with a counsellor.
151I have had regard to the matters put in mitigation on your behalf by Mr Rolfe.
I have taken into account your early plea of guilty entered at the committal mention, and as with Mr Anderson, I consider there is real utility in your plea.152The offending took place over a two-week period and has had a real impact upon each of the victims. Given that you were raised in a rural setting, you ought to have been aware of the severe disruption and inconvenience such acts would cause.
153In sentencing you, I have had regard to the nature of the offending, the value of the items stolen, and the destruction of the utility, and the other consequences of the loss of property that has been earlier described.
154There was a degree of pre-planning that occurred in relation to the burglaries. You offended whilst in company with Mr Anderson. You breached your bail conditions insofar as you did not appear at court when ordered.
155I have regard to the consequences of your actions upon each of the victims. I have also noted that your matter is also subject to the court taking into account the impact of the COVID-19 pandemic and the subsequent restrictions imposed as I have earlier described.
156I have taken into account that you were very cooperative with police and made relevant admissions in respect to the substantive offending, the subject of the indictment. Your sentence will be discounted accordingly. You too, have facilitated justice.
157General deterrence, denunciation, and community protection are all important sentencing factors, as well as specific deterrence. I have had regard to the principle of totality and proportionality. I will make the orders now in relation to Mr Colliver.
158Charge 1, convicted and sentenced to one month imprisonment.
159Charge 2, convicted and sentenced to 12 months' imprisonment.
160Charge 3, convicted and sentenced to six months' imprisonment.
161Charge 5, and 6 convicted and sentenced to 12 months' imprisonment.
162Charge 8, convicted and sentenced to seven days' imprisonment.
163Charge 9, convicted and sentenced to 12 months' imprisonment. That is the arson charge, that is the base sentence.
164Charge 13, possession of methylamphetamines for personal use, convicted and fined $500.
165In respect to related summary charges, Charge 23 non-prohibited person possess a firearm convicted and sentenced to six months.
166Charge 24 fail to answer bail, convicted and sentenced to one month.
167I make the following orders for cumulation. Two months of the sentence imposed on the related summary Charge 23, is cumulative upon the sentence imposed in respect to the indictable offences.
168I will make the following orders for cumulation. Three months of Charge 2, 5, 6, are cumulated on the base sentence of 12 months. One month of Charge 3 is cumulated on the base sentence. Two months of the related summary Charge 23 is cumulated.
169That makes a total effective sentence of two years. I fix a non-parole period of 15 months.
170I make a declaration of pre-sentence detention of 179 days.
171I make a s.6AAA declaration, but for your pleas of guilty I would have imposed a term of four years to serve three years.
172I have already made the Disposal Orders and the Forfeiture Orders, and the Compensation Orders sought.
173I will also make an order with respect to Colliver's licence, that it be cancelled, and you are disqualified from driving, holding a license for one year effective from today's date.
174I believe that covers everything that I am required to. Has everybody taken note of the sentence and they are satisfied that they understand the nature of the sentences imposed.
175MR COOPER: Your Honour, could I just clarify one thing with respect to
Mr Anderson's sentence.176HER HONOUR: Yes, who is that.
177MR COOPER: Mr Cooper.
178HER HONOUR: Mr Cooper, yes.
179MR COOPER: I was taking notes there of the related summary offences. But would Your Honour - what was the sentence against Charge 9 which I think was a careless driving charge.
180HER HONOUR: Careless, six months.
181MR COOPER: Your Honour, I just note the maximum penalty for that offence, I am just looking at the Act. I think it is six penalty units for a first offence and 12 penalty units for a subsequent offence.
182HER HONOUR: 12 penalty units, you are correct. I cannot do that. So, it is a fine only, is it not.
183MR COOPER: Yes, Your Honour.
184HER HONOUR: All right, so he will be convicted and fined $500. And so, that means therefore in relation to Anderson, there is only two months on the related summary charges that is cumulated. That means my orders in relation to Mr Anderson have to have three months taken off. It is only two years and two months, the total effective sentence.
185MR COOPER: Sorry, Your Honour. So, two years and two months.
186HER HONOUR: Yes. In respect to the indictment and related summary. Yes.
187MR COOPER: And then so, in respect of the overall global sentence, does that then mean it would be a non-parole period of - my understanding was three years and 10 months with a non-parole period of two years.
188HER HONOUR: Therefore the sentence is two years and two months for the current indictment and related summary offences. Plus one year for CR-1802338, and five months. That means three years seven months. Yes.
189MR COOPER: Yes, Your Honour.
190HER HONOUR: And I will fix a non-parole period of 18 months.
191MR COOPER: As Your Honour pleases.
192HER HONOUR: All right. Sorry about that. Thank you for pointing out that, otherwise it would have been - the whole sentence would have been void. Yes.
193MR COOPER: Thank you, Your Honour.
194HER HONOUR: All right. Are you happy that you understand the sentence is three years and seven months with a non-parole period of 18 months.
195MR COOPER: Yes, Your Honour. Thank you.
196HER HONOUR: All right. Now, is there anyone else with anything to add? Ordinarily, I would ask the counsel to remain online and have a chat with their clients, but it is too hard with two offenders. I will just have to discontinue the link. But is everybody satisfied that they understand the nature of the sentences imposed. If you could just get indicatation for me, please.
197MR COOPER: Yes, Your Honour. I understand for Mr Anderson.
198HER HONOUR: All right, thank you. Ms Heley?
199MS HELEY: Thank you, yes. I understand for Mr Colliver.
200HER HONOUR: All right, thank you. Ms Basedow?
201MS BASEDOW: Thank you. I understand, Your Honour.
202HER HONOUR: Thank you, all right. Well, that completes the matters. Hopefully ‑ ‑ ‑
203MR COOPER: Your Honour ‑ ‑ ‑
204HER HONOUR: Yes.
205MR COOPER: I apologise.
206HER HONOUR: Mr Cooper.
207MR COOPER: Mr Anderson has another - yes, Your Honour. Thank you.
Mr Anderson has a matter listed at Echuca tomorrow. I wonder if I might just have about 10 seconds just to advise him of something after the conclusion of these proceedings.208HER HONOUR: All right. You can do that.
209MR COOPER: Thank you, I am grateful.
210HER HONOUR: If you like, I will also get - are you representing him tomorrow?
211MR COOPER: Yes.
212HER HONOUR: I can ask my associate once the orders have been completed and entered into the system, to shoot through the record of orders for you, for your assistance.
213MR COOPER: Thank you, Your Honour.
214HER HONOUR: Unfortunately, my published - my remarks are not in a publishable form and there is no way I could do that for you today. I just have so many other commitments that I have got to attend to today. All right.
215MR COOPER: I am grateful, Your Honour. Thank you.
216HER HONOUR: Thank you everybody. If everyone can leave, apart from Mr Anderson and his counsel, Mr Cooper, that would be appreciated. We can adjourn the court. Thank you.
217MS HELEY: Thank you.
218MR COOPER: As Your Honour pleases.
---
0