Director of Public Prosecutions v Ansell
[2014] VCC 584
•8 May 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-13-01633
AP-14-0478
AP-14-0479
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MICHAEL JAMES ANSELL |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 April 2014 | |
DATE OF SENTENCE: | 8 May 2014 | |
CASE MAY BE CITED AS: | Director of Public Prosecutions v Ansell | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 584 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Appeal – plea – aggravated burglary – theft
Legislation Cited: Sentencing Act 1991; Crimes Act 1958
Cases Cited:Hogarth v R [2012] VSCA 302; R v Verdins & Ors (2007) 16 VR 269
Sentence: Convicted and sentenced to a total effective sentence of two years’ imprisonment with a non-parole period of 18 months. S.6AAA declaration: three years’ imprisonment with a non-parole period of two years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms D. Guesdon | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr A. Halphen Mr T. Schocker | Robert Stary Lawyers |
HIS HONOUR:
1 Michael Ansell, you have pleaded guilty to one charge of aggravated burglary, the maximum penalty for which is 25 years’ imprisonment, and one charge of theft, the maximum penalty for which is 10 years’ imprisonment. I will refer to those charges as the indictable offences.
2 In addition you were before the Magistrates’ Court at Heidelberg on 5 March 2014 and were convicted of the following offences which are the subject of appeal to this court, (Appeal AP-14-0479), which I will call the first appeal offences, which were:
Charge No Offence Date of Offending 2 Theft 9 June 2012 3 Obtaining property by deception 9 June 2012 6 Burglary 9 June 2012 8 Deal property suspected as proceeds of crime 23 June 2012 9 Breach Community-Corrections Order 9 June 2012 10 Breach Community-Corrections Order 24 July 2013
3 Further, also at the Magistrates’ Court at Heidelberg on 5 March 2014, you were convicted of the following offences which are the subject of appeal to this court, (Appeal AP-14-0478), which I shall call the second appeal offences, which were:
Charge No Offence Date of Offending 1 Aggravated burglary – person present 23 July 2013 2 Theft of motor vehicle 23 July 2013 3 Theft 23 July 2013 4 Unlicensed driving 23 July 2013 to 29 July 2013 5 Shop theft 21 October 2012 6 Attempt to commit an indictable offence (burglary) 21 December 2012
4 In relation to the first appeal offences you were convicted on each charge and sentenced to an aggregate term of imprisonment of six months. The breach of the Community Corrections Order was found proven and the order cancelled.
5 In relation to the second appeal offences you were convicted on each charge and sentenced to an aggregate term of imprisonment of 12 months, with a non-parole period of nine months.
6 Pursuant to s.14 of the Sentencing Act 1991 the learned magistrate fixed a non-parole period in respect of the first and second appeal offences of nine months. There is no indication that His Honour intended for the sentences to be served other than concurrently, thus you were effectively sentenced to a period of 12 months’ imprisonment with a non-parole period of nine months on all charges.
7 Mr Halphen, on your behalf, did not contend that the sentences imposed were excessive, however there was a technical error in the sentencing in that, pursuant to s.11 of the Sentencing Act 1991, in ordering a term of imprisonment the non-parole period must be at least six months less than the term of the sentence. It was accepted by the prosecution, given that error, that it was appropriate for this court to re-sentence you in respect of the appeal offences.
Circumstances of Offending
8 The facts surrounding the circumstances of the indictable offences are set forth in the Summary of the Prosecution Opening, which I adopt.
9 In the early hours of 27 November 2012 you entered premises in Toorak through an apparently unlocked door while a husband and wife were asleep upstairs. You stole an expensive handbag with various other items from the downstairs kitchen bench.
10 Subsequently in December 2012 you were arrested, and in the course of a record of interview admitted entering the premises and stealing the goods. At the time you were on bail in respect of the first appeal offences.
11 In relation to the first appeal offences I was taken to a summary of the circumstances. On 9 June 2012 you entered a house in Carlton North and stole a set of car keys and a wallet. On the same day you used a credit card from the stolen wallet to purchase tobacco products to a value of $31.99. On 23 June 2012 a search of your premises located the stolen car keys and clothing belonging to the victim.
12 I was provided with a report from Corrections Victoria detailing your breach of the Community Corrections Order. You breached that order by driving while unlicensed within a matter of days of the order commencing.
13 In relation to the second appeal offences, in October 2012 you stole various items from a Woolworths’ supermarket to the value of approximately $30.
14 On 21 December 2012 you entered residential premises and pulled a gate from its hinges and damaged a window (attempted burglary).
15 On 23 July 2013 you went to residential premises in Ivanhoe, entered through an unlocked door and stole a set of car keys and a remote control helicopter. You used one of the sets of keys to steal an expensive vehicle.
16 At the time of the commission of the second appeal offences you were on bail for the indictable offences.
17 Generally, in respect of all charges, you made frank admissions to the police.
18 Pursuant to s.16(3C) of the Sentencing Act 1991 any term of imprisonment imposed for an offence while committed on bail must be served cumulatively, or on any uncompleted sentence, unless otherwise directed by the court. The prosecution accepts however that the sentencing principle of totality still has application.
19 You have been remanded in custody since 31 July 2013. It is accepted by the prosecution that you have served 281 days of pre-sentence detention.
20 In addition in May 2013 you were convicted of unlawful assault and sentenced to a term of imprisonment of three months. In respect of that sentence you had been on remand for 144 days. There is therefore a residual period of 54 days of dead time. The prosecution accepts this period may be taken, effectively, as pre-sentence detention on the indictable offences.
Aggravating features
21 In relation to the aggravated burglaries, both in respect of the indictable offences and the second appeal offences, both involved invasions of residential houses while the occupants slept.
22 As referred to above, in respect of some of the offences, you were on bail for previous offences.
23 There was some planning involved in the aggravated burglaries, given you drove some distance from where you lived to the houses that were burgled.
Prior offending
24 Your history of prior offending is extensive and dates back to 1985 when you were fourteen years of age. The offences, for the most part, involved burglary, theft and driving offences. The prosecution has calculated that your offending includes convictions for seven aggravated or attempted aggravated burglaries, sixteen burglaries and 125 thefts. The offences were committed on an almost unremitting basis over the years, save in respect of periods from 2004 to 2006, and then from 2008 to 2011. For each of those periods your counsel said that you were in stable accommodation, living over the first period with your mother and caring for your eldest child, and on the second occasion in a relationship.
25 You have spent approximately fifteen years of your adult life in prison.
Factors personal to you
26 In short compass your life has been marked by significant drug abuse, homelessness, unemployment, financial hardship, mental, and more recently, physical health issues.
27 You are currently 42 years of age. You were adopted at an early age and have had a limited relationship with your mother but a closer relationship with your father, who died when you were 17. You were educated to Year 10 but before that exhibited behavioural problems. You became involved with a negative peer group and from the age of 14 started using drugs. You have had almost no employment throughout your life.
28 You have been in two relationships, one between the ages of 19 and 26, as a result of which you have two children, now aged 19 and 22. Subsequently you came into a relationship with another woman with whom you have two children, a son aged seven and a newborn infant. The second relationship is the subject of proceedings in the Family Court as there have been difficulties with you obtaining access to your seven year old son Ayden.
29 As stated, you became involved in drugs from age 14, using cannabis and amphetamines. At its peak you were spending $2000 per day on heroin. Over the period of 2004 to 2006, when you were living with your mother in stable accommodation, you were able to remain drug free, but suffered some form of breakdown in 2006 and relapsed back into alcohol and drug abuse.
30 According to a psychological report of Ms Samantha Ferretto of 31 October 2013, you described yourself as “institutionalised”, finding the structure and routine of prison life helpful. Further, it allowed you to remain drug free, eat regularly and enjoy stable accommodation. Ms Ferretto diagnosed you as suffering from:
· An Adjustment Disorder.
· Substance Abuse Disorder.
· Antisocial Personality Disorder with dependent personality traits.
31 Ms Ferretto suggested that it was important for you to obtain psychological intervention, in particular be referred to a residential drug and alcohol service, receive counselling from a forensic psychologist, maintain contact with Innerspace, a community health service, and obtain assistance with an employment agency specialising in dealing with criminal offenders.
32 Ms Ferretto described the nexus between your offending and your psychological disorders as complex. She said:
“Mr Ansell’s innate personality characteristics, his diagnoses combined with a number of psychosocial factors, (for example unemployment, relationship issues, parenting issues), likely functioned as a diathesis, making it more probable that he would struggle to effectively meet specific environmental challenges and demands, and therefore succumb to offending to meet his needs. More specifically I believe that this diagnosis led him to offend by:
(i)Reducing healthy coping strategies necessary for adaptive problem solving, emotional regulation and impulse control, thus Mr Ansell was more vulnerable to errors in decision making than the average person;
(ii)Reducing his capacity for consequential and alternative thinking;
(iii)Reducing his capacity to form rational thoughts and normal judgments;
(iv)Causing him to dismiss encouragement of pro-social supports who challenged him to utilise alternatives to offending (for example, mother).
Given that Mr Ansell was regularly abusing opioids and amphetamines it is also likely that he was withdrawing from or experiencing an altered state of consciousness at the time of offending, which would have exacerbated the aforementioned issues. Had he been drug free from his diagnoses at the time of offending then it is possible that he would have made a better choice, as is the case he had been properly diagnosed and linked to treatment at the time.”
33 In a further report from Dr Julie Janev, psychologist, of 1 April 2014, she described you as being at high risk of recidivism. Like Ms Ferretto she said the various factors in your life, combined with your psychological difficulties, led to substance abuse as a form of escape and consequent offending behaviour. She said you may not have offended had it not been for these issues. She also suggested a range of treatment, particularly a residential drug and alcohol service. She also diagnosed you as suffering an Antisocial Personality Disorder with dependent personality traits. This, she said, led you to behave irresponsibly and impulsively. She also described you as drug dependent.
34 It is indeed disappointing that despite your long history of drug abuse and criminal offending you have not, either of your own design or on referral, undertaken a comprehensive live-in drug and alcohol program. If there are to be any prospects of rehabilitation it is essential that you undertake such a program. There is also clearly the need for psychological counselling, stable and secure accommodation, proper basic health care and possibly eventually some form of employment. Without these forms of assistance then I hold little prospect for you being able to break the cycle of drug abuse and criminal offending.
Sentencing considerations
35 The purposes for which a court may impose a sentence are:
· Punishment – to an extent and in a manner which is just in all the circumstances;
· Deterrence – both specific and general;
· Rehabilitation;
· Denunciation and/or protection of the community.
36 In sentencing you I must have regard to a range of matters such as the seriousness of the offences, your culpability for them, and your personal circumstances. I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, offenders are rehabilitated and reintegrated into society.
37 I am of the view that both specific and general deterrence have a limited role to play in your circumstances. I doubt the imposition of a term of imprisonment will do very much to deter you from re-offending. Likewise, those with your long history of drug abuse and crime pay little heed to the sentence imposed on other offenders. In my view the most important sentencing considerations are punishment and protection of the public.
38 You have pleaded guilty and are entitled to have that fact taken into account in your favour. Further, you were generally cooperative with the police and made full admissions.
39 Aggravated burglary is a serious offence. This is compounded by the fact that you have a long criminal history of both aggravated burglaries and burglaries. However, I accept the submission of your counsel that notwithstanding each aggravated burglary occurred to residential premises, the offending is at the lower end of the scale. This case is readily distinguishable from other cases, in particular where multiple offenders enter residential premises carrying weapons and intending to rob or cause injury.[1]
[1]Hogarth v R [2012] VSCA 302
40 Your counsel submitted that, in particular, given the opinion of Ms Ferretto, that the first Verdins’[2] principle is enlivened, and accordingly your moral culpability is reduced and the sentencing principle of general deterrence has less application. However I am not satisfied that that principle has application in this case. While I accept the diagnoses of the psychologists I am not satisfied that there is any reduced moral culpability in your case. The opinion of Ms Ferretto is somewhat vague in that regard, and I am not satisfied that there is a direct causal link between the Antisocial Personality Disorder she diagnoses and the commission of the offences.
[2]R v Verdins & Ors (2007) 16 VR 269
41 While undoubtedly your offending is linked to a range of factors, including lack of education, long-term unemployment, extensive incarceration, drug and alcohol abuse, homelessness and financial hardship, those matters are not sufficient to enliven the principle. While your psychological disorder also undoubtedly played a role, it could not be said that at the time of the offending you were so affected by the symptoms of the disorder such as to be incapable of making a conscious decision. In particular I note that in relation to the aggravated burglaries you drove some considerable distance, parked your car some distance away and entered the properties.
42 I bear in mind the aggravating features to which I have previously referred. I further note the concern of the psychologists that you have become institutionalised because of long periods of incarceration, and that it is in the community’s interests that any prospects of rehabilitation be explored so that you do not spend a large proportion of the rest of your life in jail.
43 Your counsel, while properly conceding the difficulty with rehabilitation and reintegration, said that there were three factors of significance which provide some hope for the future. They are your current age, your physical health and your family circumstances.
44 He said that you are now 42 years of age, and have reached an age where you have realised how much of your adult life has been lost in drug abuse, criminal offending and gaol. Further, you have a seven year old son and a newborn infant, and despite the difficulties with access you harbour a strong desire to properly influence your son in his young years. You realise the serious impact upon his prospects of a healthy development with your drug abuse and criminal offending.
45 Of most significance is that I was informed that as a result of contracting Hepatitis C many years ago you have significant liver disease. You are presently awaiting the results of an ultrasound to determine whether there is any malignancy associated with the disease. You have been informed by the doctors that your liver is quite scarred beyond repair and that you are seriously ill. You are awaiting further investigation to determine whether there is any surgery available, including a liver transplant, or alternatively enter an interferon program.
46 While I accept that your age has made you more reflective about your lost years, I have little expectation there is any real prospect that you will be able to remove yourself from the cycle of drug abuse and offending. While I accept your plea that you are concerned about the welfare of your son and wish to be involved in his upbringing and provide a positive influence, the birth of your two older children does not appear to have led to any appreciable influence on you in the past. Nonetheless, I bear these matters in mind.
47 In terms of your physical health I was provided with no medical report, nor assessment. I accept the plea of your counsel that you suffer significant liver disease, and while again I have reservations about whether things will change significantly in the future, I accept that it is your view that with what is left of your life you want the years ahead to be free from drug and alcohol abuse and incarceration.
Sentence to be imposed
48 Taking into account all of the matters to which I have referred I impose the following sentence:
49 On the first appeal offences you are convicted in respect of each of the charges, number 2, 3, 6 and 8, and sentenced to an aggregate term of imprisonment of six months.
50 In respect of Charges 9 and 10 the breach of the Community Corrections Order is found proven and the order is cancelled. I shall impose no sentence in respect of those charges.
51 In relation to the second appeal offences you are convicted in respect of each of the charges, numbered 1, 2, 3, 4, 5 and 6, and ordered to serve an aggregate term of imprisonment of 12 months’ imprisonment. In relation to the theft of the motor vehicle, (Charge 2), any licence to drive a motor vehicle is cancelled and you are disqualified from obtaining any such licence for a period of 18 months from 5 March 2014.
52 In relation to the indictable charges on Charge 1, aggravated burglary, you are convicted and sentenced to a term of imprisonment of 18 months.
53 On Charge 2, theft, you are convicted and sentenced to a term of imprisonment of three months.
54 For the sake of clarity I declare the sentences imposed in respect of the indictable offences are to be served concurrently.
55 In determining whether to order any period of accumulation in respect of the various series of offences I note, pursuant to the provisions of s.16 of the Sentencing Act 1991, unless I otherwise direct the sentences imposed in respect of the first appeal offences must be served cumulatively with the sentences imposed in respect of the indictable offences. Further, the sentences imposed in respect of the second appeal offences must be served cumulatively upon the sentences imposed in respect of the indictable offences.
56 Given the principles of totality, and in order to avoid imposing a crushing sentence, I direct that those sentences imposed in respect of the various offences not be served wholly cumulatively. However, given the charges of aggravated burglary are of such gravity, total concurrency would fail to do justice. I therefore consider it is appropriate to order some form of accumulation. I direct that six months of the sentence imposed in respect of the second appeal offences be served cumulatively upon the sentence imposed upon Charge 1 of the indictable offences, the base charge. That results in a total effective sentence of two years’ imprisonment.
57 Pursuant to the provisions of s.14 of the Sentencing Act 1991 I must impose a new single non-parole period. A period of parole will enhance what modest prospects of rehabilitation you have. I direct that you serve a minimum period of 18 months’ imprisonment before becoming eligible for parole.
58 Pursuant to s.18(4) of the Sentencing Act 1991 I declare that the period of 281 days be reckoned as a period of imprisonment already served under this sentence. Further, I declare that the period of 54 days is a period of imprisonment effectively already served under this sentence, that results in a total period of pre-sentence detention of 335 days. I direct that this declaration and its details be noted in the records of the court.
59 Under s.6AAA of the Sentencing Act 1991 I state that but for your plea of guilty I would have imposed a total effective sentence of three years imprisonment, with a non-parole period of two years.
Ancillary orders
60 I shall make the Disposal Order as sought by the prosecution. The order is not opposed. It goes without saying and I should have said that the orders of the Magistrates' Court at Heidelberg are set aside.
61 MS GUESDON: Your Honour just one very small matter that I - - -
62 HIS HONOUR: Yes.
63 MS GUESDON: - - - that I'd picked up, in terms of the license cancellation Your Honour should nominate a date that that starts.
64 HIS HONOUR: Yes.
65 MS GUESDON: And that should in fairness be the Magistrates' Court conviction date which was 5 March 2014.
66 HIS HONOUR: Very well. Well change then paragraph 50 to include that Mr Ansell is disqualified from obtaining such a license for a period of 18 months from the - date again? Fifteenth of March?
67 MS GUESDON: Fifth of March.
68 HIS HONOUR: Fifth of March this year?
69 MS GUESDON: 2014, yes.
70 HIS HONOUR: Thank you. Yes anything Mr - - -
71 MR SCHOCKER: Schocker.
72 HIS HONOUR: - - - Schocker, I beg your pardon.
73 MR SCHOCKER: No Your Honour.
74 HIS HONOUR: I'm happy to leave this with counsel, be aware that they're unrevised but if I've made some mistake I'd be grateful if you'd contact my associate and they can be reviewed.
75 MS GUESDON: Yes Your Honour.
76 MR SCHOCKER: Thank you Your Honour.
77 HIS HONOUR: Thank you both. Yes you can have a seat Mr Ansell. Please allow Mr Ansell a few short minutes with his lawyers and family if present. Ten-thirty.
78 MR SCHOCKER: As Your Honour pleases.
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