Director of Public Prosecutions v Carroll
[2020] VCC 1362
•28 August 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 20-00431
CR-20-00580
CR-20-00581
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| NATHAN CARROLL JOSEPH EL-KHALED TRENT WILSON-HICKEY |
---
| JUDGE: | HIS HONOUR JUDGE LAURITSEN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 13 and 18 August 2020 |
| DATE OF SENTENCE: | 28 August 2020 |
| CASE MAY BE CITED AS: | DPP v Carroll & Ors |
| MEDIUM NEUTRAL CITATION: | [2020] VCC 1362 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr M. Roper (Plea) | Office of Public Prosecutions |
| For Accused Carroll | Mr M. McGrath and Mr A. McCowan (Plea) Mr M. McGrath (Sentence) | James Dowsley & Associates |
| For Accused El-Khaled | Mr J. McGarvie | Stary Norton Halphen |
| For Accused Wilson-Hickey | Mr M. McLellan | Emma Turnbull Lawyers |
HIS HONOUR:
1Mr Carroll, you have pleaded guilty to one charge of burglary and one charge of theft. The maximum penalty for burglary is 10 years' imprisonment and for theft, also 10 years' imprisonment.
2Mr El-Khaled, you have pleaded guilty to the same charges of burglary and theft. You have also pleaded guilty to a charge of possession of a drug of dependence, methylamphetamine. Since your possession of the drug was not for any purpose relating to trafficking, the maximum penalty is one year imprisonment. Finally, you have pleaded guilty to a charge of dealing with property suspected of being the proceeds of crime. The maximum penalty is 2 years' imprisonment.
3Mr Wilson-Hickey, you have pleaded guilty to the charge of burglary, two charges of theft, a charge of dangerous or negligent driving while pursued by the police and two charges of dishonest retention of stolen goods. The maximum penalties for the driving offence is 3 years' imprisonment and 15 years' imprisonment for the retention of stolen goods. In addition, you have pleaded guilty to a charge of unlicensed driving, possessing a prohibited weapon and dealing in property suspected to be the proceeds of crime. The maximum penalties are 60 penalty units or 6 months' imprisonment on the unlicensed driving, given that you have never held a licence; the prohibited weapon, 240 penalty units or 2 years' imprisonment, and on the dealing charge, 2 years' imprisonment.
4The amended summary of prosecution opening on plea has been admitted into evidence. I will not repeat that summary but summarise its significant parts.
Circumstances
5At about 2.25 am on Thursday 12 December 2019, the three of you, together with another person, drove to a JB Hi-Fi store in Thomastown in a stolen Toyota Prado wagon. The identity of the other person is still unknown to the police. The Prado wagon had attached stolen registration plates.
6The Prado was driven to the rear of the store and reversed up to a ladder next to the loading bay. One or other, or all of you, cut the lock to the ladder and used it to climb onto the roof of the store. A hole was then cut in the roof to enable entry into the storeroom area. Two of your group entered the storeroom and remained there for over an hour, taking numerous boxes of electrical goods and placing them on the roof. Two of your group had driven away in the wagon and then returned. The boxes were passed down from the roof and placed in the rear of the Prado.
7At about 4.20 am, two police officers drove to the rear of the store intending to arrest you. However, the Prado was driven away by you, Mr Wilson-Hickey. Mr Carroll and Mr El-Khaled were passengers. These police officers followed, operating their vehicle's lights and siren. Stop sticks were laid at the store's exit. Despite puncturing the driver's side front and rear tyres, the Prado did not stop. Then started a pursuit, which was depicted in film taken by the police airwing.
8During the police pursuits, occupants of the Prado threw stolen items from the vehicle. These items narrowly missed the police vehicles and oncoming vehicles.
9The Prado entered Dalton Road, proceeded north to the Ring Road. Police vehicles followed with sirens and lights operating. At the Edgars Road exit a front tyre came off the Prado, narrowly missing a police vehicle. The Prado then went onto the incorrect side of Edgars Road while travelling south. Oncoming vehicles had to avoid the Prado. It then turned right into Mahoney's Road and drove on the incorrect side of the road. Again, oncoming vehicles took evasive action to avoid the Prado.
10Proactively, the police units went ahead of the Prado and directed oncoming traffic to slow down and pull over to the side of the road. The Prado continued at high speed, exceeding 125 kph in an 80 kph zone.
11The Prado entered into the Hume Freeway and travelled north on the incorrect side of that road. It turned left into Barry Road, this time travelling west on its correct side of the road. The Prado entered Pascoe Vale Road and drove through the intersection of Somerton Road and Pascoe Vale Road. Both are major roads. It did so at high speed, against a red light, and narrowly missing two vehicles.
12The Prado travelled north on David Munroe Drive, then Thomas Brunton Parade and then Donald Cameron Drive. For a few more minutes the pursuit continued in the back streets of Roxburgh Park and Craigieburn. The police units stopped their pursuit in Roxburgh Park. The airwing aircraft continued to follow the progress of the Prado until it stopped in the driveway of a house in Craigieburn. All four ran from the Prado. Throughout, the driver of the Prado was you, Mr Wilson-Hickey. This driving constitutes Charge 4; dangerous or negligent driving while pursued by police.
13The three of you were arrested not long afterwards. A search of you,
Mr El-Khaled, found an ice pipe, about a gram of methylamphetamine and Ford and BMW car keys. The drug constitutes Charge 6; possession of a drug of dependence. The keys constitute the summary offence of possessing property suspected of being the proceeds of crime.14Most of the stolen property from the store was recovered from the rear of the Prado. It was returned to the store. The value of the stolen goods was $224,584.78. The value of the returned goods was $215,571.90. The taking of this property constitutes the charge of theft against each of you.
15A search under warrant of your home, Mr Wilson-Hickey, revealed in your bedroom a black bag containing car keys, identification in the name of a George Rekovski and a Taser. The contents of the bag constitute the summary charge of possessing property suspected of being the proceeds of crime, while the Taser constitutes the offence of possessing a prohibited weapon.
16When interviewed, both Mr Carroll and Mr Wilson-Hickey made "no comment" record of interviews. When asked, you, Mr El-Khaled said you could not remember anything. A subsequent medical examination revealed you were unfit to be interviewed.
Criminal histories
Carroll
17Mr Carroll, you have appeared in court on 12 occasions and have been found guilty of 109 charges. These appearances occurred between 30 May 2018 and 18 January 2012. At your last appearance you were sentenced to 6 months' imprisonment and fines totalling $1,200.
18Your longest sentence of imprisonment was 12 months imposed in the Magistrates' Court at Broadmeadows on 19 December 2016 for a large number of offences including 4 charges of burglary. There was a non-parole period of 6 months fixed. For the contravention of an existing community correction order, that order was varied and, in effect, extended for 12 months.
19On 30 May 2018, you were sentenced to 6 months' imprisonment. Although it is not disclosed in the criminal history report after your release from prison, and after serving that sentence, you re-offended on 14 November 2018.
20On 23 October 2019, a judge of this court sentenced you to 12 months' imprisonment for offences including burglary, attempted burglary and handling stolen goods. Since 333 days of pre-sentence detention were reckoned as served, you must have been released from custody in about late November 2019. You then commenced a community correction order. Her Honour concluded you were a reasonable prospect of rehabilitation provided you did not return to drug use. She accepted your genuineness and self-motivation in your attempts to reform and lead a drug-free, law-abiding life.
El-Khaled
21Mr El-Khaled, between 21 September 2004 and 29 August 2019 you have appeared in a court on 14 occasions and been found guilty of 94 charges. Your longest sentence of imprisonment occurred in October 2018, when you were sentenced to a total of 6 months imprisonment on drug and dishonesty charges.
22On 29 August 2019, you were sentenced to a total of 4 months' imprisonment for dishonesty, drug and driving offences. Since your pre-sentence detention amounted to 71 days I assume you were released from custody in mid-October 2019.
Wilson-Hickey
23Mr Wilson-Hickey, between 19 October 2012 and 14 May 2019 you have appeared in a court on 9 occasions and been found guilty of 97 charges. 5 of the 9 court appearances were in the Children's Court.
24On 14 May 2019, you were sentenced to 197 days, which was the time you had already spent in custody, and to a community correction order for 8 months containing therapeutic conditions only. You committed the present offences while subject to that order. The 197 days was not your longest sentence. That occurred on 16 December 2016, when you were sentenced to 15 months' detention in a Youth Training Centre for a large number of offences including burglaries.
25There was another sentence of detention. On 7 June 2018, you were sentenced to 9 months' detention and fined for 4 charges including theft of a motor vehicle and possessing methylamphetamine.
Current sentencing practice
26There are few instances of recent sentencing practices for burglary. Counsel for Mr Carroll referred me to two cases. Elakkoumi v DPP[1], which concerned parity of sentences between co-offenders. Somewhat like Elakkoumi the other case, DPP v Burton[2], concerned many offences, including burglaries, and involved a high value of stolen goods. Elakkoumi was 20 at the time of offending and 23 at the time of sentencing. Burton was 31 at the time of sentencing.
[1] [2017] VSCA 186.
[2] [2017] VCC 1057.
27The reason for the scarcity of cases is due to the vast majority of burglary cases being heard in the Magistrates' Court, notwithstanding the limitations on that court's jurisdiction. That much emerges from the Sentencing Snapshot entitled 'Burglary', published by the Sentencing Advisory Council in June 2016. The prosecutor helpfully referred me to this document.
28The snapshot analyses the sentences imposed in the County Court where the principal offence is burglary between the years 2010-11 and 2014-15. In that five year period there were only 63 persons sentenced where the principal offence was burglary. The snapshot sets out the average sentence for the offence in each year, the average number of other offences determined at the same hearing, the median total effective sentence imposed over the period and the median length of the non-parole period.
Guilty pleas
29Mr Carroll, you pleaded guilty to the charges at the earliest reasonable opportunity.
30Mr El-Khaled, you indicated an intention to plead guilty to the charges you have ultimately pleaded guilty to and this indication came at the earliest reasonable opportunity.
31Mr Wilson-Hickey, although your pleas of guilty were not made at the earliest reasonable opportunity, nevertheless they were made at an early stage.
32These pleas of guilty are evidence of remorse. They have the additional benefit of saving the witnesses from the need to give evidence and the cost and delay of a trial. They facilitate the administration of justice, especially where trials have been postponed because of the virus. Overall, your pleas of guilty deserve a significant discount on the sentences I would otherwise have imposed.
Personal circumstances
Carroll
33Mr Carroll, you are now 29. You are single, with your last relationship ending 8 years ago.
34Your parents separated when you were an infant and you have been raised by your mother. Your father, Brendan Hickey, was absent in your childhood due to prison sentences. Even now I understand he has a proceeding in the Drug Court division of the Magistrates' Court.
35Your mother remarried when you were 3. She and your stepfather separated when you were 15. You, your mother and your half-sister, Hayley, then resided with your mother's mother.
36Your father formed another relationship, from which you have three half-brothers. The eldest of the three is your co-offender, Mr Wilson-Hickey.
37You had been close to your stepfather. After the separation, you resumed contact with your father. Unfortunately, he was violent to his new partner, which you witnessed. You have kept a close relationship with your mother and a more distant one with your father.
38Despite the difficulties in primary school and the need for the help of a teacher's aide, you completed Year 11 and then attended TAFE. Your experience at secondary school was unpleasant as you struggled to make friends and were bullied.
39After leaving school you worked for about 4 years as a data entry operator for Sensis, and then for a year at Star 21 as a furniture removalist and customer service advisor. As a removalist, you injured your back, were incapacitated for work and received weekly payments for a time.
40After your first prison sentence, you worked as a labourer for 4 months. In 2017, you worked as a carpenter. Your employer introduced you to the Murchison-Toolamba Football Club and you played with it, winning its best and fairest in that year. Unfortunately, your employer's business closed and you lost that job.
41Your time at the club was helpful. You trained and played outside the prison. The club thought so much of you that it paid for the membership of you and your family and helped you to find work in Melbourne.
42After you were paroled in 2017, you returned to Melbourne. You were subject to intensive parole for 3 months. You worked full-time as a labourer to a carpenter. It is unclear when you last worked, however upon your release from custody your mother's partner will offer you a job in his business:
"I have a small transportation business and have secured contracts with import and export components for sea freight. This business has been successful for the last 3 years and thus I am able to provide Nathan steady and reliable employment. I believe that stable work, paired with the unconditional love and support from family, will ensure Nathan is able to turn his life around."
43Part of the unconditional love comes from your mother, Stacey Carroll, whose letter I have read. She believes your attitude to drugs and crime have changed while you have been in custody.
Drug use
44You have a long history of using illicit drugs. At 18, you first used ice. This was an isolated instance. However, you restarted at 21. It was your uncle who introduced you to ICE. You were close to him. His death when you were 20 affected you so that your drug use increased.
45While you were incapacitated for work, you started smoking methylamphetamine daily. Your usage increased after the diagnosis of your grandmother suffering from pancreatic cancer. She has since died. Through your counsel, you concede your involvement in these offences was to steal property to sell so you could buy drugs.
46Over the years, you have suffered physical injuries at sport and work. You have suffered from anxiety and depression but have not sought treatment of any kind.
47Gambling is a long-standing problem for you. While in custody, you contacted Gambler's Help; an outreach service of Banyule Community Health. Over the phone, you spoke to Julia Jensen twice. Ms Jensen is a mental health practitioner and therapeutic counsellor for gamblers. Due to the COVID-19 restrictions, your contact with her was limited to two 30-minute conversations. Nevertheless, she administered two standard tests and formed a view of you. She believes you would benefit from assistance with your gambling and drug problems, both in custody and after your release. In her report to your solicitors she concluded[3]:
"In summary, the writer's overall impression of Mr Carroll over the two 30-minute appointments was that he has been very open and engaged about accepting further counselling for gambling harm, drug use and his mental health when he is released. He would be an excellent candidate for further counselling if he remains motivated, especially as he has family support and potential work."
[3] Report dated 10 August 2020.
48On 15 June 2020, you started individual counselling with Caraniche. By
10 August, you had had 9 sessions. Indrani Barua, a drug and alcohol clinician, noted[4]:"He attended all scheduled sessions punctually, where he has continued to participate and engaged appropriately; consistently demonstrating motivation for change relating to his substance and offending behaviour."
[4] Report dated 10 August 2020.
49Ms Barua also noted you had completed 4 other individual counselling sessions with Caraniche when you were at Marngoneet Correctional Centre.
50On three occasions in 2019 and 2020, analyses of your urine samples have not detected any of the well-known illicit drugs.
51You have completed three courses while on remand, called 'Take Stock A', 'Take Stock B' and 'Adapt'.
52The majority of your time on remand has been at the Metropolitan Remand Centre, where, on alternate days, you are locked in your cell for 24 hours, followed by 5 or so hours out of your cell the next day. At the Metropolitan Remand Centre you worked in the kitchen until injuring yourself.
53In sentencing you in October 2019, Judge Quin considered you had reasonable grounds of rehabilitation provided you did not return to using drugs. Given these offences occurred so soon after your release from prison, not unnaturally your counsel submits your prospects of rehabilitation are more guarded. He points to the individual counselling you receive from Caraniche and the help of Ms Jensen from Gambler's Help, but acknowledges your rehabilitation depends on abstaining from the use of methylamphetamine. He submits a lengthy non-parole period or a combined imprisonment and community correction order would be appropriate.
El-Khaled
54Mr El-Khaled, at 33 you are the eldest of the three. At the time of the offences you were 32.
55You are one of four children with two sisters and a brother.
56Your parents were born in Lebanon and migrated to Australia in the 1970s.
57Your father was a violent figure who subjected your mother to abject treatment and abuse. When you were 3, your mother left your father, taking you and the other children with her. From that moment, your father disappeared from your life.
58Despite your Islamic background, your mother insisted you attend Catholic primary and secondary schools. You struggled at school. You felt alone because of your different background. At your first secondary school, you misbehaved through fighting with other boys and were expelled in Year 9. As often happens, you were accepted into another Catholic secondary school closer to home. You settled into that school but did not excel academically. You left that school in Year 11, wishing to pursue vocational training. You attended a nearby TAFE and successfully completed the Victorian Certificate of Applied Learning.
59You then started an apprenticeship as a plumber in a local business. You worked with this business for 5 years, including 2 years of study while working on the academic side of the apprenticeship. By the age of 21, you were proud of what you had achieved. During this period, you formed a relationship with Rina.
60Then, in 2008, when 21, your two best friends were killed in a car accident in Melbourne. They were also of Lebanese extraction. Their deaths deeply unsettled the Lebanese community. More significantly, for present purposes, you became deeply depressed and withdrawn. You turned your back on your family and work. You did not complete your apprenticeship even though you were near the end. You started using methylamphetamines. This developed into an addiction. By 2012, you had become so unreliable, your employer dismissed you.
61Just pausing there. It cannot be said you had, by 2008, led a blameless life. By the end of 2007, you had appeared in the Magistrates' Court on 4 occasions. The first time saw you convicted of 7 charges, including a charge of intentionally causing injury and two charges of making threats to kill. You were sentenced to a community correction order for 18 months, with one of the conditions being assessment and treatment for drug and alcohol addiction or dependency. Your counsel described the charges as arising from a fight with a young person.
62In November 2006, there was a contravention charge. In May 2007, various driving charges including a charge of driving while your licence was suspended. For that charge you were sentenced to 4 months' imprisonment, which was wholly suspended for 12 months. On the other charges you were fined. Then in October 2007, on a further charge of driving while suspended, you were sentenced to a month's imprisonment, also wholly suspended for 6 months.
63In 2013, you were gaoled for the first time. Previously, you had received suspended sentences of imprisonment.
64Between 2013 and 2017, you were unemployed. Your relationship with Rina ended in 2016.
65You returned to prison in 2017 and every year since.
Remorse
66Your pleas of guilty are evidence of remorse, given their timing and the circumstances in which they were made. I have read your letter, dated
11 August 2020, in which you point to your drug and gambling addictions, the effect on your mother and nephew and the victims. While on remand, you have become a 'Prison Support Worker', which, you explain:"Consists of me assisting new inmates to get used to prison life."
67You add that by helping others, you have realised prison life is not for you.
Rehabilitation
68Your counsel submits your prospects of rehabilitation are fair.
69Your remand since December 2019 is the longest period you have spent in custody. You have been drug-free during that time as evidenced, in part, by your clean urine tests conducted randomly between 4 February and 7 May 2020.
70You have completed a series of vocational programs through the ATLAS Remand Program over a 7 week period. The nature of each of the courses is helpfully described in a letter from Ms Bateson at Marngoneet Correctional Centre[5].
[5] Letter dated 17 July 2020.
71As I mentioned earlier, you were appointed a prison support worker and have been in this role for 4 months. Apart from your description of the role, it includes assisting in the facilitating of the delivery of programs.
72From 17 July, you have also started individual counselling with Caraniche. This comprises weekly one-hour sessions seeking to address your drug addiction and subsequent criminal behaviour. As the clinician from Caraniche explained[6]:
"This program is tailored to the individual's needs and situation but essentially encourages them to develop self-awareness, learn strategies for relapse prevention, take responsibility for their behaviour and develop more pro-social behaviours."
[6] Letter dated 10 August 2020 by Sangita Mishra.
73You attended Narcotics Anonymous for 5 weekly sessions until its cessation due to the virus and restrictions.
74You have sought help from Gambler's Help, which I have already described.
75You are in regular phone contact with your mother. You intend to live with her when you are released.
76Apart from your letter a friend, Dunia Marouche, wrote a letter in support of you. She was the sister to one of your friends killed in the car accident in 2008.
77Your counsel has set out your goals following release from custody:
a)to remain drug and offence free;
b)to provide better support to your mother - she is elderly and a diabetic;
c)to return to the RMIT to complete your last year of plumbing accreditation, and then return to work as a fully-fledged plumber.
Virus
78The virus has affected you less than others. Nevertheless, face to face visits ceased after 21 March 2020. Before then your mother visited about weekly. Owing to her age and health, you have been concerned about her welfare during the pandemic.
Wilson-Hickey
79Mr Wilson-Hickey, you are now 22. At that age, you are still a youthful offender.
80Your parents separated years ago. Before that, it had been an on-and-off relationship characterised by dysfunction and drug use. Your father frequently assaulted your mother in your presence.
81You have three brothers. Two are younger than you. One of them is serving a sentence of detention. Your other brother is Mr Carroll. Your father is described as a participant in the Drug Court division of the Magistrates' Court.
82After primary school, you attended a secondary college until transferring to an alternative school in Year 8. You struggled academically and withdrew during Year 10.
83You started using ICE at 16 and for about 6 months your use was tentative. After that, it intensified so that it has become almost a daily habit.
84You have been in a relationship for 7 years. You and your partner have 2 sons, the eldest is 3. The youngest was only recently born. He is about three weeks old. Despite your difficulties, your partner maintains an unwavering commitment to you.
85Since leaving school, you have worked as a concreter, maintenance labourer and roof tiler. Your employment has not been continuous. The longest period was 9 months as a labourer. You hope to become a carpenter after an apprenticeship.
86You were a good footballer, playing with West Preston and Jacana. Infection through golden staph brought your football to an end.
87Most of your time on remand has been spent in Port Phillip Prison, where you have experienced lock-ins, spending only 4 hours a day out of your cell. Owing to the virus, you do not receive visitors. Educational and treatment programs have been suspended. Your contact with family is limited. You see your children, including your newly born son, for an hour at a time.
88Following your release, you plan:
a)to live with your partner and children at her mother's home - her mother is supportive of you, and;
b)to start an apprenticeship in carpentry with a view to becoming a carpenter.
Discussion
The offences
89The burglary of the commercial premises and the theft of stock involved planning. A hole was cut in the roof of the store which allowed access to the storeroom. Until the intervention of the police, the burglary and theft had been well-executed. A stolen vehicle was used and stolen number plates were substituted for its genuine plates. This was to avoid your detection. The offences were committed at night. Since a lock was broken, you must have possessed something to cut it. There was some damage done to the building through cutting a hole in the roof. Since nothing has been said about the damage, I assume it was minor.
90Given it was a single event, the amount of property taken was large. The value of the stolen property was $224,584.78. Of that amount, goods to the value of $215,571.90 were recovered by the police. However, contrary to a submission, there is no mitigatory value in the recovery of the vast majority of the property, for this was due to the actions of the police and not anything done by any of you.
91At the time of the offences, Mr Carroll and Mr Wilson-Hickey were at large conditionally, in that each of you was the subject of a community correction order. This is an aggravating factor.
92Each of you had not long been released from prison when these events occurred. Mr Carroll, on my calculation you were released in late November. Similarly, Mr El-Khaled, you were released in mid-October. While, Mr Wilson-Hickey, you were released a good deal earlier, on 14 May 2019, but you had been subject to a community correction order in the intervening months for sufficient time for some of the services of Corrections Victoria to be brought to bear.
93There are no victim impact statements. That is unsurprising, since it was a commercial not domestic premise which was targeted. One would not expect anyone to be in the premise at the time.
Carroll
94Mr Carroll, assessing your prospects of rehabilitation is no easy matter. On the one hand, you have a long history of drug addiction, where the demands of the addiction led to the commission of offences of burglary, with their commission occurring within about three weeks of your release from custody and then subject to a community correction order. On the other hand, you have tried hard while in custody to address your drug and gambling problems. Both your mother and your stepfather believe you are changing.
95For someone with your history of drug addiction and criminal behaviour, the court would need more convincing evidence of rehabilitation. At this stage, I would assess your prospects as modest.
El-Khaled
96Mr El-Khaled, your counsel concedes your offending is serious and that most of the purposes of sentencing are relevant, that is, just punishment, general deterrence, specific deterrence and protection of the community. He concedes a term of imprisonment with a non-parole period is appropriate but both the head sentence and the non-parole period should be lower than would otherwise be appropriate, given the cumulative effect of the matters put in mitigation on your behalf.
97You have a long history of offending. You have not used the chances given to you by magistrates over the years. You have breached community based and community correction orders. There have been four such orders and four proceedings for contravening those orders. In addition, you were sentenced to imprisonment on four occasions, with the sentences being wholly suspended. You did not use those opportunities, or those offered by the community based or correction orders, to rehabilitate yourself when given the opportunities.
98The entrenched nature of your offending is emphasised by your court appearance on 29 August 2019. Then you were sentenced to a total of 4 months' imprisonment for dishonesty, driving and drug offences. 71 days of pre-sentence detention was credited as served. You would have been released from custody on about 17 October 2019, yet about 7 weeks later you committed these offences. You were so affected by drugs, you were assessed by a medical practitioner as being unfit to be interviewed. You have an entrenched addiction which leads to your criminal behaviour.
99One must be wary of the prospects of someone with a longstanding drug addiction associated with criminality. I would describe your prospects of rehabilitation as modest, not poor. You have engaged in programs and counselling while in custody. That is to your credit. So too is the responsibility given to you to assist new persons on remand. In a broader sense, you have assisted the administration of justice.
100On 30 November 2017, you were sentenced to a community correction order for offences including aggravated burglary. By then, you had spent 23 days in custody. On 14 January 2020, on a charge of contravening that order, you were resentenced to 3 months' imprisonment, with the 23 days being declared as time already served. This sentence ended on 21 March 2020. You were taken into custody on the present charges on 12 December 2019. Unfortunately, that sentence reduced the amount of your pre-sentence detention available to you on the present charge. Your counsel submitted I should credit you with 68 days, whether by application of the principle in R v Renzella[7] or by way of the application of the principle of totality.
[7] [1997] 2 VR 88.
101In El-Waly v R, the court said[8]:
"The relationship between s.18 of the Sentencing Act 1991 and the principles in Renzella can be summarised as follows:
(a) Section 18 permits the period during which an offender is on remand for more than one set of offences at the same time to be declared as pre-sentence detention when the offender is first sentenced. Although the period spent in remand must relate to the offences for which the offender is being sentenced, it is not necessary, as was previously the case, that the period relate only to those offences;
(b) If an offender is detained on remand for one offence, while serving a sentence for another, s.18 does not apply for the period during which the offender was on remand;
(c) The Renzella discretion permits a sentencing judge to take account of a period which the offender spent in custody, which is unrelated to the offence for which the offender is currently being sentenced, even if that period is not covered by s.18;
(d) The Renzella discretion was originally exercised in circumstances where, with hindsight, the offender should not have spent a period in custody for earlier alleged offences;
(e) Where Renzella applies the court may take account of the whole period during which the offender was in custody, or some lesser period."
[8] [2012] 2012] VSCA 184 at [111]-[112].
102The court went on to say:
"We would have thought that in this case, where the appellant was on remand for the current offences, while at the same time serving a term of imprisonment for another offence which cannot be claimed as pre-sentence detention under s.18, raises an issue of totality, rather than calling for the application of Renzella. We note, however, that in Wheldon v R the Court conceded that such a period should be treated as Renzella time. In Wheldon, the Court accepted that concession."
103The prosecution did not submit that either the Renzella discretion or the totality principle did not apply with the circumstances concerning you, Mr El-Khaled. The application of either results in the same outcome.
Wilson-Hickey
104Mr Wilson-Hickey, your involvement in these crimes was to obtain property which would fund your drug addiction. You were using methylamphetamine almost daily at the time. At the time of the offences you were subject to a community correction order imposed in May 2019, following your release from custody after serving 197 days imprisonment. You partially complied with the conditions of the order. Although the offence of burglary for which you were sentenced in May 2019 occurred in 2010, the fact remains you had been in custody for 197 days until May and re-offended by December. It explains why you were sentenced to 7 days' imprisonment for that offence. However, your last burglary was penalised in 2016.
105You are a youthful offender. You are much younger than Mr El-Khaled and
Mr Carroll.106Your counsel referred me to two paragraphs from the judgment of Redlich JA in Azzopardi v R[9]. These paragraphs appear as part of a larger discussion under the heading 'Sentencing principles concerning youth'[10]. Your counsel relied upon two of the three propositions stated by Redlich JA:
"Firstly, young offenders being immature are therefore ‘more prone to ill-considered or rash decisions'. They ‘may lack the degree of insight, judgment and self-control that is possessed by an adult'. They may not fully appreciate the nature, seriousness and consequences of their criminal conduct.
"Secondly, courts 'recognise the potential for young offenders to be redeemed and rehabilitated'. This potential exists because young offenders are typically still in a stage of mental and emotional development and may be more open to influences designed to positively change their behaviour than adults with established patterns of anti-social behaviour. No doubt because of this potential, it has been stated the rehabilitation of young offenders 'is one of the great objectives of the criminal law'. The added emphasis for the purposes of sentencing on realisation of a young offender's potential to be rehabilitated is further justified because of the community's interest in such rehabilitation, not only at a theoretical level, but because the effective rehabilitation of a young offender protects the community from further offending."
[9] [2011] VSCA 372 at [34] and [35].
[10] {34] to [44].
107In that case, the criminal behaviour of Azzopardi and Baltatzis far exceeded your criminality. The interplay of youth and the sentencing objectives of deterrence, denunciation, just punishment and protection of the community was examined. At paragraph 44, Redlich JA said as the level of seriousness of the criminality increased there was a corresponding reduction in the mitigating effects of the offender's youth. However, only with the gravest criminal offending and no realistic prospect of rehabilitation will the mitigatory consideration of youth be viewed as all but extinguished.
108His Honour concluded[11]:
"Despite the serious and protracted nature of their offending, which called for very substantial sentences in the case of Azzopardi and Baltatzis, the youth of each applicant had not been removed as a mitigatory factor of some importance."
[11] At [88].
109To give that conclusion context, the offending of Azzopardi and Baltatzis was extremely serious. They were convicted of 23 charges of armed robbery, 9 charges of attempted armed robbery, 2 charges of attempted robbery, 4 charges of intentionally causing serious injury, 2 charges of intentionally causing injury and 6 charges of common law assault. These charges were the product of 21 separate incidents on 11 different evenings and involving 34 victims. The most serious charge was one of the instances of intentionally causing serious injury, where the injuries inflicted on the victim were severe and life threatening.
110Your counsel raised another point. During your interview by the police, you admitted you were the driver of the vehicle during the chase. The prosecutor concedes this was a major piece of evidence against you for the charge of dangerous driving. The other evidence of your identity as the driver was somewhat tenuous and unlikely to be sufficient to prove the charge. Your counsel relies upon R v Doran[12].
[12] [2005] VSCA 271.
111In that case, Mr Doran provided the prosecution with the entire evidence needed to convict him of the majority of charges laid against him. He did so voluntarily and without any pressure. He reported his commission of sexual abuse, which had not been reported. Apart from how this action affected the issues of rehabilitation and remorse for him, Buchanan JA observed it was important for him to receive a demonstrable discount in his sentence to encourage others to make like admissions[13]. Your action also necessitates a demonstrable discount on the sentence I would otherwise have imposed for that charge.
[13] At [34].
112Your counsel concedes the seriousness of your offending. The circumstances raise the sentencing purposes of denunciation, protection of the community and general and specific deterrence. In relation to specific deterrence, he notes your offending occurred while you were subject to a community correction order.
113On the other hand, your counsel submits your prospects of rehabilitation are limited but not extinguished, relying on your relative youth and strong family supports.
114His use of the words "relative youth" acknowledges your age at the time of the offending, which is now 22. The offenders, Azzopardi and Baltatzis, were 19 when their offences were committed. At 22, you are near the boundary of "young" or "youthful offender". The mitigatory effect of youth may diminish as a person becomes older. At 22, you are still a youthful offender.
115Your mother, your partner and her mother support you. So much emerges from their letters. The support of your partner is conditional upon you reforming. She will take you back, but that will be your last chance.
116Your counsel correctly identifies your drug addiction as central to your prospects of rehabilitation. He submits a longer potential parole period would be appropriate. He goes so far as to submit I should fix a non-parole period which would enable you to apply for parole immediately.
117While your desire to rid yourself of your addiction is present, and it is supported by others, your history of offending and addiction gives little confidence. The issue of rehabilitation is influenced by the sentencing consideration for youthful offenders. Their combination will not permit me to set a non-parole period of the kind sought by your counsel.
Sentences
118As to sentences, Mr Carroll:
a)on the charge of burglary you are sentenced to 24 months imprisonment;
b)on the charge of theft, also to 24 months imprisonment.
119The sentence on the charge of theft will be served concurrently with the sentence on the charge of burglary. The total effective sentence is 24 months' imprisonment. I will set a non-parole period of 18 months' imprisonment.
120Mr El-Khaled:
a)on the charge of burglary you are sentenced to 22 months' imprisonment;
b)on the charge of theft you are sentenced to 22 months' imprisonment;
c)on the charge of possession of a drug of dependence - 1 month imprisonment;
d)on the charge of dealing with property suspected of being the proceeds of crime – 1 month imprisonment.
121The sentences on the charges of theft, possession and dealing will be served concurrently with each other and the sentence on the charge of burglary. The total effective sentence is 22 months' imprisonment. I will set a non-parole period of 16 months’ imprisonment[14].
[14] On 16 September 2020, pursuant to s104B of the Sentencing Act 1991, I set the non-parole period at 16 months’ imprisonment, instead of 16 months and two weeks’ imprisonment, which I had originally set.
122Mr Wilson-Hickey:
a)on the charge of burglary I will sentence you to 12 months' imprisonment;
b)on the charge of theft – 12 months' imprisonment;
c)on the charge of theft of a motor vehicle – 6 months' imprisonment;
d)on the charge of dangerous or negligent driving while pursued by police – 8 months' imprisonment;
e)on the charge of handling or retention of stolen goods – 3 months' imprisonment;
f)on the charge of handling or retention of stolen goods, the second charge – 1 month imprisonment;
g)on the charge of unlicensed driving – 1 month imprisonment;
h)on the charge of possessing a prohibited weapon – 1 month imprisonment;
i)on the charge of dealing with property suspected of being the proceeds of crime – 1 month imprisonment.
123Except for the sentence on the charge of dangerous or negligent driving, the sentences on the other charges will be served concurrently with each other. 4 months of the sentence on the charge of dangerous or negligent driving will be served cumulatively on the sentence on the charge of burglary. The total effective sentence is 16 months' imprisonment and I will set a non-parole period of 10 months' imprisonment.
124In relation to the charges of theft of a motor vehicle and dangerous or negligent driving, you will be disqualified from obtaining a licence or permit to drive a motor vehicle for a period of 24 months.
Pre-sentence detention
125I declare as reckoned as served the following periods of pre-sentence detention[15]:
a)Mr Carroll: 260 days;
b)Mr El-Khaled: 194 days;
c)Mr Wilson-Hickey: 260 days.
[15] Between 12 December 2019 and 28 August 2020.
Section 6AAA
126But for your pleas of guilty I would have imposed the following sentences:
a)Mr Carroll: a total effective sentence of 32 months' imprisonment with a non-parole period of 24 months' imprisonment.
b)Mr El-Khaled: a total effective sentence of 29 months' imprisonment with a non-parole period of 22 months' imprisonment.
c)Mr Wilson-Hickey: a total effective sentence of 21 months' imprisonment with a non-parole period of 16 months' imprisonment.
Disposal order
127I will make the disposal order sought by the prosecution involving the property set out in the schedule to the order. Is that all clear, lady and gentlemen?
128COUNSEL: Yes, Your Honour.
129HIS HONOUR: Are there any other matters anyone wishes to raise?
130COUNSEL: No, Your Honour.
131HIS HONOUR: All right. That being the case I'll have my associate adjourn the court.
132MR McGRATH: There's only one matter, Your Honour, and I don't know if the others want to join in with me.
133HIS HONOUR: I can't hear you, Mr McGrath.
134MR McGRATH: I don't know if this – sorry. (Indistinct words) that I'd seek is if Your Honour could provide a copy of the sentencing reasons to the parties?
135HIS HONOUR: I didn't hear most of that, but what would normally be done – I hope you can hear this – is that I will send ‑ ‑ ‑
136MR McGRATH: Yes.
137HIS HONOUR: ‑ ‑ ‑ my Word document to my associate, who will then send it to the transcribers. The transcribers will then format it in the usual manner, send it back to me to make sure we've got it right – that is, settle any minor problems there – and then I will publish it generally, so it'll become available to the parties themselves as well ‑ ‑ ‑
138MR McGRATH: Thank you, Your Honour.
139HIS HONOUR: ‑ ‑ ‑ as the broader community. If needs be I can ask my associate, who's also taking leave next week, as I am, to send copies to your instructing solicitors – or in your case to you, Mr McGarvie and Mr McLellan.
140MR McGRATH: I'd be very grateful, Your Honour. Thank you.
141HIS HONOUR: So that should take – that should be done by early next week, I'd imagine. All right?
142MR McGARVIE: As Your Honour pleases.
143HIS HONOUR: Are there any other matters?
144COUNSEL: No, Your Honour.
145HIS HONOUR: In that case then perhaps we could adjourn the court for four minutes, Mr Tipstaff.
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