Director of Public Prosecutions v Blyth

[2021] VCC 43

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-20-01536

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOSEPH BLYTH

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JUDGE:	HER HONOUR JUDGE LAWSON
WHERE HELD:	Melbourne
DATE OF HEARING:	19 January 2021
DATE OF SENTENCE:	29 January 2021
CASE MAY BE CITED AS:	DPP v Blyth
MEDIUM NEUTRAL CITATION:	[2021] VCC 43

REASONS FOR SENTENCE
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Catchwords:              Criminal law – sentencing – home invasion (intent to steal) person present – theft – mitigating features – early plea of guilt, parity, impact of COVID 19 pandemic – Bugmy principles – attendance at Wiimpatja Healing Centre program – principles of Akoha applied – sentence of imprisonment imposed

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr D. O’Doherty	Abbey Hogan, Solicitor for Public Prosecutions
For the Accused	Mr D. De Witt	Greg Thomas Solicitors

HER HONOUR:

1Joseph Blyth, you have pleaded guilty before me to one charge of home invasion (intent to steal) with a person present, in company with Andrew Kirby, and one charge of theft.

2Andrew Kirby has been previously sentenced in this court on 10 October 2020 in respect to the offending and the revised sentencing remarks have been provided to the parties.

3He was sentenced to an aggregate term of imprisonment 110 days for the charges with 110 days declared as pre-sentence detention.

4The offences are serious and that is reflected in the maximum penalty that is prescribed by law.  Charge 1, home invasion, is a Level 2 offence, and that attracts a maximum penalty of 25 years’ imprisonment or 3,000 penalty units.  Theft is a Level 5 offence, attracting a maximum penalty of 10 years’ imprisonment or 1,200 penalty units.

5

Because Charge 1 is a category 2 offence, in sentencing an offender for a

category 2 offence, a court must make an order under Division 2 of Part 3, that is a custodial order, unless there are compelling circumstances that are exceptional and rare and justify not making such an order.

6You have admitted your prior criminal history and there are court appearances both in New South Wales and Victoria.  The New South Wales history is of a limited nature and is for crimes that are predominantly drug-related as well as for some dishonesty offences for which you have received Conditional Release Orders and fines.

7On 4 June 2019, at Wentworth Local Court, in relation to a charge of  having goods in your possession suspected of being stolen, you were placed on a Conditional Release Order with conviction for a period of 12 months and the order was due to conclude on 3 June 2020.

8This offending is in breach of that Conditional Release Order and that reflects in part on your rehabilitation prospects.

9In Victoria, there have been three attendances at court and you have convictions for some dishonesty offences, committing an indictable offence whilst on bail, and some crimes of violence against a person in the context of contravening family violence orders, as well as offences for which you have been placed on community correction orders and combination sentences.

10Prior to this offending you had only spent only relatively short periods of time in custody.

11You spent a total of 192 days on remand in respect to this offending.

12I will now proceed to sentence you on the basis of the Summary of Prosecution Opening that was read at the plea hearing.

13On 6 July 2019 at about 3.45 pm, you were in company with Andrew Kirby.  You both entered the hostel for seasonal workers at 126 Riverside Avenue, Mildura through the hostel living room via an unlocked door.  You walked through the premises and removed some alcohol from a fridge in the kitchen and you stole a backpack containing passports and various personal items, including an Apple watch, a wallet, some clothing and a mobile phone.

14There were four people present in the hostel but they were not disturbed by your presence.  The backpack belonged to Ms An, who was asleep in her bedroom.  She was not disturbed but woke later that day and noted that a number of her personal items were missing, so she reported the matter to police.  Police reviewed the CCTV footage that was available and identified both you and the co-accused being present in the premises.

15You were arrested on 16 July 2019 and remanded in custody.

16On 9 April 2020 you were granted conditional bail and released to live with your foster parents, Daniel and Valerie Kelly, in Mildura awaiting a place at the Wiimpatja Healing Centre program.  This is a 12-week residential program that seeks to address alcohol and drug dependency.  You attended the program between 18 June 2020 and 10 September 2020.

17Following your arrest, you were formally interviewed and made a ‘no comment’ record in accordance with your rights.

18

Procedurally, you entered a plea of guilty at committal mention in Mildura on

30 November 2020.  There was a delay in your matter proceeding having regard to the suspension of Magistrates’ Court proceedings due to the COVID‑19 pandemic.

19It is accepted that you entered a plea of guilty at an early stage in the proceeding and you are entitled to and will receive a discount for your plea accordingly.

20The prosecution accepts that the gravity and seriousness for this offending can be characterised at the lowest level of seriousness for these types of offences, and you will be sentenced on that basis.

21I have had regard to your personal history and background.

22You are Aboriginal.  You were born in South Australia and have connections to the Pitjantjatjara community.  As an infant you were fostered by Daniel and Valerie Kelly.  There has been no contact with your biological father and you had only minimal contact with your biological mother prior to her death.

23You understand that both of your parents struggled with substance use issues and that you were exposed to alcohol and illicit substances in utero.

24Tragically she died from cancer some years ago shortly after you regained contact with her.

25You have been raised by the Kelly’s who are, and remain, very supportive of you.  You also identify as a member of the Mutti Mutti community as you were raised as part of that community in Mildura by your foster parents.

26You have been diagnosed with a mild intellectual disability, severe language disorder, chronic polysubstance use disorder with periodic associated depression, anxiety, limited stress tolerance and symptoms of post-traumatic disorder.

27You have had some contact of a limited nature with one of your nine biological siblings.

28You were raised in regional Victoria with four older foster siblings and you enjoy a close and loving relationship with your family.  You experienced difficulties at school and received assistance from an integration aide.  You left school at the end of Year 9 and have had no other formal education.

29You have worked in a shearing shed and also on a pumpkin farm for short periods of time.  You supported your foster father when he was working at the Aboriginal Health Service in Mildura, undertaking some administrative tasks.  You are in receipt of a Disability Support Pension.

30You have a chronic history of alcohol and drug abuse, commencing when you were the tender age of nine when a relative introduced you to alcohol.  Up until age 13 you would occasionally drink but then you began drinking to the point of intoxication and began missing school at an early age.  You were drinking heavily up until the age of 27.  You started smoking cannabis when you were about 12, with ongoing daily use.  You also were using methamphetamines regularly from about age 24.  You had relapsed back into intravenous drug use prior to this offending occurring. 

31You were in the company of Andrew Kirby at the time you committed these offences and you have met him during one of your periods of time in prison.  You were both heavily affected by methamphetamine and that provides the context for this offending.  I accept the offending was opportunistic.  You were both wandering around the streets and you were hungry, and you entered the building through an unlocked door.  The offending was impulsive, disorganised and short-lived.

32To your credit, following your release on conditional bail you attended the Wiimpatja program and successfully completed it. 

33Wiimpatja, the program, is located at Warrakoo Station, which is some 80 kilometres from Wentworth in New South Wales, on the Murray River, and 110 kilometres from Mildura, Victoria. 

34The program is part of a suite of programs that is offered by Mallee District Aboriginal Services (MDAS) in Mildura.  The conditions of the program are very strict, the focus is on alcohol and other drug counselling, mental health counselling, behavioural change, wellbeing and cultural support from elders. 

35You did face some difficulties at times during the program, especially when you were pushed outside your comfort level.  But to your credit you successfully completed the program. 

36To your credit since you completed the program you have been making remarkable progress.  You are now relicensed and looking for employment.  You have a drug and alcohol counsellor and you have remained sober. 

37I was very impressed by what Tina Taylor (the alcohol and drug nurse) told the court in her letter, dated 21 December 2020.  She remains supportive of you and says you are engaging well.  You have been regularly attending the family wellbeing program at MDAS and that is directed at relapse prevention and providing you with support in community.  You have continued to not use drugs and you are regularly seeing her.  She is aware that you have pleaded guilty to these charges and says that you have expressed remorse on several occasions to her for the offending.

38In addition to that very important cultural community support, you have also been able to successfully have a National Disability Insurance Scheme Plan approved and that adds further support for you in the community. You have a goal to secure appropriate accommodation so that you can live independently and obtain a job.  Arrangements are currently being made for you to be assessed as to your functional capacity.  You are working one-on-one with a support worker, Jamie, who is your support worker who assists you and supports you in all areas of decision making and budgeting.  He also supports you to attend various appointments with allied health providers and community supports, including a Job Network provider.

39I heard some evidence from Ms Edens, the support coordinator, and she says that since 2 October 2020 you have been very goal orientated and highly motivated to change.  You are working well with her, you are open and you are willing to seek further support in the future.

40I have read the contents of the report prepared by Dr Rachel O’Meara, neuropsychologist, and I accept her findings.  I note her assessment that you have full IQ score of 64, which is within the extremely low range and that impacts upon your verbal, intellectual and language skills.  Notwithstanding that, Ms O’Meara says you do understand the difference between right and wrong and the likely consequences of your actions. 

41I accept her expressed opinion because of your condition you would have experienced difficulties in prison.  You would have suffered greater isolation and potentially you would have been the target of others who would exploit your vulnerabilities.  She says that you would be vulnerable to institutionalisation should a lengthy term of imprisonment be imposed.  That is not going to be occurring in this case.

42There was no reliance placed on Verdins principles, but I certainly have had regard to her expressed opinions concerning your cognitive impairments and the fact that it would have impacted upon your capacity to think clearly, make calm, reasonable decisions and appropriate judgements, and potentially to understand the wrongfulness of your actions in new situations.

43Dr O’Meara said that it is really important that you do not use alcohol or drugs, particularly methamphetamines, and she recommends stable accommodation and employment as protective factors against reoffending.

44I have also had regard to the contents of the report from Ms Elizabeth Warren, consultant psychologist.  The report is dated 2 February 2017 and I do not propose to articulate what is set out there.  But I do acknowledge that you have suffered ongoing post-traumatic stress disorder symptoms as a consequence of an incident that occurred during your childhood that was of a nature that would cause such symptoms.

45During the time you spent in custody you explored your cultural heritage and you completed a number of paintings and you received great satisfaction from being able to do that and you were able to sell one of those paintings through the Torch program that is conducted in the Victorian prisons. You have plans for the future to continue to paint and sell your paintings.

46I consider, having regard to your conduct, particularly your conduct since your arrest and remand, demonstrates that you do have reasonable prospects for rehabilitation.

47I have accepted all the matters highlighted by Mr De Witt in his plea on your behalf.  I acknowledge you pleaded guilty at the earliest opportunity and that the plea has real utility and that is particularly so in the circumstances that we are currently undergoing with the COVID-19 pandemic.  You saved the community the cost and inconvenience of a trial, you facilitated justice, so your sentence will be discounted.  I also accept that you are genuinely remorseful.  That is reflective in your plea, but also it is reflected in the discussions that you have had with Tina Taylor.

48I have taken into account the 85 days that you spent at Wiimpatja Healing Centre in accordance with Akoka v The Queen.[1]  I was very impressed with the efforts you made during the time that you were at Wiimpatja to successfully complete that program.  

[1] [2017] VSCA 214 at [105]-[115]

49I have had regard to the impact of COVID‑19 pandemic upon you, having regard to the delays in your matter coming before the court and also the extra time that you have spent in custody before you were able to be released on bail.  You were held in custody in Melbourne a long way away from your relatives.  You were unable to have face‑to‑face visits and given your intellectual disability and cognitive impairments I do consider that your time in custody would have been more onerous than for prisoners who do not suffer your conditions, and I have taken that into account.

50

I have already indicated that I sentenced your co-accused, Mr Kirby, back on

1 October 2020 and on that occasion, I also dealt with him in relation to some unrelated summary offending.  He was able to have his sentence deferred so that he could complete the Wiimpatja residential program following his plea hearing in the Koori Court.  You were unable to participate in the Koori Court and I accept that was because of your severe language difficulties and cognitive impairments, and it was not possible, you thought, for you to participate in such a conversation.

51Overall, having regard to all the factors I have highlighted, I consider there is no reason for there to be disparity in sentence to be imposed upon you.  There was no distinction between the role played by you and Mr Kirby.  I consider that you are equal in terms of the criminality.  It is low level offending. 

52It is the case that you both suffer from cognitive deficits and both have had complex and difficult past histories and been subjected to trauma in the past.  You have got a documented mental incapacity, insofar as you suffer a mild intellectual disability with cognitive impairments.  And, in addition, you were introduced to drugs and alcohol by relatives from a very early age and this is a situation where drugs have been a major influence in your offending behaviour. I have taken that into account in mitigation your past drug history because of what happened to you as a little boy.

53You have been very remorseful and genuine, in terms of taking every step possible to address what was causing you to offend and your real and significant progress in the community must be commended.

54In sentencing you I must impose just punishment and I need to emphasise deterrence and denunciation.  Hopefully by regularising your life by obtaining work and getting suitable accommodation you will not be offending in the future.  I consider that your prosects are really good, provided that you continue to work with all your support people and workers and draw strength from your family that is very supportive.

55The formal order is in relation to Charge 1, home invasion and Charge 2, theft, you will be convicted and sentenced to an aggregate term of imprisonment of 110 days and I declare 110 days’ pre-sentence detention.  I direct that that be entered into the records of the court.

56I make a s.6AAA declaration, but for your plea of guilty, I would have imposed a term of imprisonment of 12 months.

57There were no ancillary orders sought, as I understand it, Mr O'Doherty, so that concludes my sentencing remarks.

58MR O'DOHERTY:  Thank you, Your Honour.

59HER HONOUR:  Thank you and thank you, Mr De Witt.

60MR De WITT:  As Your Honour pleases.

61HER HONOUR:  So if I could just speak very briefly to Joseph.  Has he got his microphone - so Joseph I hope that you continue your very excellent progress and I wish you well for the future.

62OFFENDER:  Thank you, Your Honour.

63

HER HONOUR:  Thank you.  All right, so that concludes the matter.  We will now adjourn.  I just would like to thank everybody who has been supporting Joseph, including his dad, Danny and also the NDIS support coordinator,

Jill Edens.  I wish you well in getting him setup in suitable accommodation and hopefully his progress will continue to be as good as it has been currently, thank you.

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