Director of Public Prosecutions v Anthony
[2023] VCC 1372
•4 May 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-00640
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RUSSELL ANTHONY |
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JUDGE: | HER HONOUR JUDGE GAYNOR | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 November 2021 | |
DATE OF SENTENCE: | 4 May 2023 | |
CASE MAY BE CITED AS: | DPP v Anthony | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1372 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Theft – Intentionally damage property – Attempted theft – Attention-Deficit/Hyperactivity Disorder – Autism Spectrum Disorder - Unable to meet requirements and conditions of Community Corrections Order - Rehabilitation enhanced by Court Integrated Services Program – National Disability Insurance Scheme – Adjourned Undertaking
Legislation Cited: Criminal Procedure Act 2009 (Vic); Sentencing Act 1991 (Vic)
Cases Cited:
Sentence: Adjourned undertaking to be of good behaviour for a period of two years
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr T. McCulloch | Office of Public Prosecutions |
| For the Accused | Mr R. Backwell | Dribbin and Brown Criminal Law |
HER HONOUR:
1 Russell Anthony, you have pleaded guilty before me to four charges of theft, four charges of intentionally damaging property and one charge of attempted theft. You have also pleaded guilty to associated summary charges which were transferred to this plea pursuant to s145 of the Criminal Procedure Act. They were five charges of possess article for theft and one charge of using an unregistered vehicle.
2 The facts underlying this offending are as follows. There are three co‑offenders in this matter: Jarrod Moreton, Carter Smith-Minalto and Vanessa Truman. There was two periods of theft. The first period between 5-12 June 2019 involved Moreton and Smith-Minalto breaking into myki machines at various metro and various V/Line railway stations within about 60 kilometres of where you were living in Langwarrin. A blow torch, grinders and gemmy bar was used to force the machines open and to obtain the notes.
3 Between 16 July and 28 August 2019, you, with Moreton committed the second series of thefts which involved the same activity. During that offending, Moreton, who was the prime mover and organiser of this offending, used a number of cars, including one belonging to you, a white Holden Commodore. On 13 July 2019, the two of you drove to the Officer railway station where the myki machine was broken into a total of $975 stolen. Those actions underlie Charge 1 on the indictment, theft. Charge 2, criminal damage, relates to damage caused to the myki machines totalling $7,322.56.
4 Then, on 16 July 2019, in the early hours of the morning the two of you drove to the Tecoma railway station. You wore clothing which disguised your identity because of CCTV cameras at this station as well as gloves and used metal poles to get into the myki machine but were unable to do so. Charge 3 relates to attempted theft arising from your efforts to break into that myki machine and Charge 4, criminal damage, relates to the damage to the myki machine of $8,504.78.
5 On 18 July 2019, again, in the early hours of the morning, you and Moreton drove to the Somerville railway station where you used a gemmy bar to access a myki machine and steal $130. That underlies Charge 5 on the indictment, theft. There was damage to the myki machine worth $9,651.98. This underlies Charge 6 on the indictment, criminal damage. On 28 July, at about 4 in the morning, Moreton sent you a text message asking if you were still coming past. On 29 July, in the afternoon, he sent you another SMS inviting you to attend and you responding that you wanted to come. At 5.05 am the next morning, Moreton sent you another SMS essentially saying he did not have much luck but kept some money for you.
6 On 4 August 2019, at about 3 o'clock in the morning, the two of you drove again to Tecoma railway station, both of you wearing clothing to disguise your identity and gloves and used bolt cutters and a metal pole to access the myki machine, stealing $1,250 from it. Those actions underlie Charge 7 on the indictment. Charge 8 relates to criminal damage to the myki machine worth $8,230.96.
7 On 26 August 2019, again at about 1.30 in the morning, you sent a message to Moreton asking about getting ram sticks presumably to be used in offending later that morning. The two of you again drove to Tecoma railway station where Moreton used a gemmy bar to get into the myki machine and steal $335. Those actions underlie Charge 9 on the indictment. Charge 10 relates to criminal damage to the machine worth $7,939.38.
8 You were arrested at your home on 28 August 2019. At that time, police saw Moreton driving your unregistered car and then park outside your address where you got into the front passenger seat. Police attempted to follow Moreton but he took off at a fast rate and got away. At about 4 am, police located Moreton walking away from your car in Terang Place, Karingal and arrested him. Your car was then searched where a gemmy bar, a black torch, multiple gloves and two balaclavas were located. Your house was searched and $850, a metal bar and black gloves were located and seized. Your possession of these items underlies the summary charges of possessing equipment to steal and you allowing Moreton to use your unregistered vehicle relates to the last summary offence. In a record of interview with police, you denied involvement in the offending and said that money found at your home related to loose change you had collected over the years.
9 This matter resolved on 9 March 2021, following a committal hearing which proceeded by way of straight hand-up brief and you pleaded guilty on 29 March of that year. The maximum penalty for theft is 10 years imprisonment. The maximum penalty for attempted theft is three years imprisonment. The maximum penalty for criminal damage or intentionally damaging property is 10 years imprisonment. The maximum penalty for going equipped to steal is two years imprisonment and the maximum penalty for using an unregistered motor vehicle is 25 penalty units.
10 I now turn to your personal circumstances. You are now 29 years of age, one of two children born to your parents who separated when you were young and you have had no contact with your father since you were about four. You have a good relationship with your mother, with whom you continue to reside. You have a sister with whom you have little contact. You were diagnosed with ADHD at the age of four and prescribed Ritalin. You eventually, after moving through a number of schools (including because you were expelled) completed VCAL. However, after leaving school you have not done a great deal. You have worked in a number of unskilled and semi-skilled positions such as labouring, roof tiling and bricklaying. The longest you stayed in one job was two years as a tyre fitter which was apparently in about 2017. You lost that job because you lost your licence.
11 You told psychologist, Carla Lechner, whose report was tendered on the plea, that you began smoking cannabis when you were 16, at one stage, used a lot of ecstasy and have also used LSD and magic mushrooms. You have tried both cocaine and GHB. You used to, you said, use ice, as you said it relaxed you and slowed your thoughts and it is the experience of this court that often people who suffer from the condition of ADHD do find it relaxing to use ice because the amphetamine part of it has the same similar properties as the medication generally prescribed for ADHD which is amphetamine-based, that is Ritalin. It is not surprising that it had that effect on you.
12 You have been involved in some criminal offending along the way. Your criminal record begins in 2012 when you were placed on a community corrections order for theft from motor vehicle, theft of motor vehicle, theft and going equipped to steal. You contravened that order which was dealt with on 24 April 2018 when you were also dealt with for offending involving refusing to undergo a breath test and other driving offences at which time you lost your licence. You were dealt with by placement on another community corrections order.
13 In 2019, again, you were dealt with for contravening the community corrections order which was then varied. Then on 23 August 2019, you were once more dealt with for contravening a community corrections order which was, again, varied.
14 It is clear to me that although you played an active part in this offending you were not the organiser.
15 The matter first became me in this court on 4 November 2021 at which time I had you assessed for placement on a community corrections order for which you were found unsuitable. You were then referred to the Court Integrated Services Program on which you have remained ever since with monthly check‑ups by this court in the meantime. I am very happy to say that it is clear that you have benefitted greatly from the Court Integrated Services Program’s (CISP) intervention, which is not surprising as it is the experience of this court that every time CISP is involved something positive then occurs.
16 Most importantly, you have been subjected to testing and it has been discovered that you, in fact, suffer from an autism spectrum disorder which has never been diagnosed previously. A formal diagnosis was obtained through assessment organised by CISP. As a result, you have been linked to the National Disability Insurance Scheme and have received a support package. This has involved you having the assistance of multiple support staff described by CISP clinical lead worker, Sahar El-Achkar as providing an enormous body of support which:
'Provide outreach service support to him for numerous needs including attending appointments, engaging in recreational activities and residential home cleaning'.
17 Ms El-Achkar has also organised for you to attend a gym. Now, it was quite clear during the time that I was dealing with you, Mr Anthony, that there was something not operating well within you if I can put it that way. I am not at all surprised that you were unable to attend to the conditions of a community corrections order. It is clear that your time on CISP has revealed that the specific difficulties that you have and which are now, through the offices of CISP and the NDIS, being attended to. Most importantly, since being placed on the CISP order there has been, as I understand it, no further offending.
18 There have been difficulties uncovered in your personal life. You have a tendency to hoard. There have been difficulties in your relationship with your mother. One of the other areas in your life which has proved difficult if things are not working well with your mother is the issue of accommodation. A submission has been made via the NDIS and the Department of Family, Fairness and Housing for you to receive a moveable unit. Again, this gives you some stability with accommodation. You continue to have the support of the NDIS package and I am satisfied that you are in a much more stable situation than you were at the time of this offending.
19 At the time of that offending you were not working, your relationship with your mother was difficult. Essentially, it appears you became involved in this offending because you had no money. Because of your autism, it is difficult for you to attend to things like Centrelink or to organise matters for yourself. You have the difficulty of communicating with and relating to people that comes with an autism spectrum disorder which can be very hard to bear. You also have ADHD. I regard these as profoundly difficult psychological problems that you have and I am satisfied that it is in the best interests of the community that they be properly tended to and supported as they are now as a result of the CISP program.
20 Ms El-Achkar stated in her report:
'Mr Anthony has demonstrated improved behaviours and understanding of his need for support and treatment in the community. Thus, within the scope of his own abilities, Mr Anthony has tried his best to adhere to recommendations. Mr Anthony does express his appreciation for the support provided and he is able to articulate the benefits he has derived from being engaged with the CISP pilot. However, is finding the continued journey somewhat onerous and anxiety provoking'.
21 I pause here to comment that, of course, if you do suffer or if you are on the autism spectrum disorder and you have ADHD, attending to programs, attending to organising your life is an extraordinarily difficult exercise. Ms El‑Achkar goes on:
'The writer commends Mr Anthony on his efforts to engage in an extended period of case management. For many, the length of this episode would have presented onerous and burdensome and this would have been further compounded for Mr Anthony as a result of his conditions and presentation. A person-centred approach was utilised throughout the entirety of
Mr Anthony's episode to maximise his opportunity of gaining the benefits that were available to him'.
22 Ms El-Achkar also makes the very important point that your continued journey to recovery – that is to a life that is not chaotic; a life that is happier; a life where you are able to manage the conditions that you have:
‘Will be non-linear and, therefore, there will be challenges will surface. However, there is now a foundation of support established around Mr Anthony and his mother’.
23 I should add that I note from the reports that I have continuously received from CISP throughout this process that your mother has been instrumental in assisting CISP in sorting out assessments, appointments and the needs that you have. I am most loathe, despite this offending, to interrupt the progress that has been made. I am satisfied that because of your conditions, gaol would be far harder for you than for an ordinary prisoner not suffering from a condition of autism or ADHD. I am particularly concerned that placing you in gaol would disrupt and sever the important community links that have been now set in place which will, in my view, enable your ongoing stability and most importantly reform from criminal offending.
24 I am satisfied that your prospects of rehabilitation have been vastly enhanced as a result of the CISP program and the supports that I have said have now been set in place. It is also clear to me that placing you on a community corrections order is not a viable option. Your psychological conditions are such, in my view, that you would be unable to meet the requirements and conditions of a Community Corrections Order. Additionally, it is my view that community corrections staff are not in a position to supervise you and deal with the serious conditions that you suffer. You do not have any money. As I have said, I am satisfied that you are in a supportive, stable scenario and, therefore, in all the circumstances it is my view that the best way to deal with you is by placing you on an adjourned undertaking to be of good behaviour. This is an entirely practical response if I can put it that way. I have been through the other dispositions available to the court and explained why, in my view, they are unsuitable.
25 One of the matters that the court must take into account is protection of the community and I am certainly satisfied that the position you are now in offers the best protection to the community that can be offered.
26 HER HONOUR: Could I ask you, Mr McCulloch, there are a large number of charges. I understand that ordinarily, this should not be an aggregate sentence. But does this mean I have to impose a series of concurrent adjournment undertaking?
27 MR McCULLOCH: I was thinking about that as Your Honour pronounced sentence. My view is that this is a fairly unique circumstance and an aggregate sentence wouldn't be inappropriate.
28 HER HONOUR: Thank you, Mr McCulloch. My associates will be very relieved to hear that.
29 Therefore, in all the circumstances I am going to place you in relation to all the offending on an adjourned undertaking to be of good behaviour for a period of two years. There will be a condition that you obey the lawful directions of the National Disability Insurance Scheme personnel who are dealing with you. Pursuant to s6AAA, I declare that had you not pleaded guilty, I would have placed you on a community corrections order for a period of three years.
30 Can I again, thank CISP for what I regard as their remarkably successful intervention and handling of this matter. In my view, Mr Anthony's life has been and will continue to be transformed by what they have been able to uncover of himself, of their incredibly patient dealings with Mr Anthony over an extended period of time, of keeping Mr Anthony engaged.
31 Mr Anthony, well done for hanging in there because I know you have found this whole process very difficult. You haven't enjoyed it, but you have still remained engaged and that has enabled me to take the steps that I am taking about placing you on an adjourned undertaking. I could not have done that if you had not kept working with CISP. I am particularly grateful to you. This is one of the most successful involvements I have had. To live your life until you are 29 as a person on the autism spectrum disorder without anyone knowing or you knowing yourself is an extraordinarily difficult way to live your life. I am very grateful and very pleased that you have been linked in, finally, with the services that you both deserve and need. Thank you.
32 Is there anything else that I need to attend to?
33 MR McCULLOCH: Just two ancillary orders that have been filed, Your Honour.
34 HER HONOUR: We'll get them. Let me see. I know they're here. My associates will attend to that. I also note that I have dealt with the co-accused in an entirely different manner. They played larger roles than did you, Mr Anthony, and did not suffer from the debilitating conditions that you do. All right, Mr Anthony. That is it. You never have to see me again. All right. Thank you very much. I thank counsel very much for their assistance in this matter and again, Ms El-Achkar, I am more grateful to you than I can say. Thank you. We will stand down to 10.30.
35 MR BACKWELL: If Your Honour pleases.
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