Director of Public Prosecutions v Carroll

[2019] VCC 1739

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-00796

DIRECTOR OF PUBLIC PROSECUTIONS

v

NATHAN CARROLL

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JUDGE:	HER HONOUR JUDGE QUIN
WHERE HELD:	Melbourne
DATE OF HEARING:	16 October 2019
DATE OF SENTENCE:	23 October 2019
CASE MAY BE CITED AS:	DPP v Carroll
MEDIUM NEUTRAL CITATION:	[2019] VCC 1739

REASONS FOR SENTENCE
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Subject: :  Handling stolen goods, Attempted burglary, Burglary, Resisting an emergency worker on duty, Possessing a drug of dependence, methylamphetamine, Driving without P plates, Fraudulently using a registration plate and Driving whilst exceeding the prescribed limit
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Cookson	OPP
For the Accused	Ms N. Karapanagiotidis	Emma Turnbull Lawyers

HER HONOUR: 

1Nathan James Carroll, you have pleaded guilty to the following offences, each of which has the relevant maximum penalty as set out:  handling stolen goods, 15 years, attempted burglary, five years, burglary, 10 years, resisting an emergency worker on duty, five years, possessing a drug of dependence, methylamphetamine, for a purpose not relating to trafficking, 30 penalty units or one year.

2You have also agreed to have dealt with by me and pleaded guilty to the following summary offences:  summary offence 7, driving without P plates, summary offence 8, fraudulently using a registration plate, and summary offence 18, driving whilst exceeding the prescribed limit - the maximum penalty for that offence being 60 penalty units, giving it is a second offence, with a minimum disqualification period of 12 months.

3As to your offending, on 14 November 2018, at approximately 1.30 am in the morning, you and other unknown persons went to the Free Choice tobacconist in Tullamarine.  You were driving in a white ute in convoy with other offenders who were driving a stolen white van.  The ute you were driving had been stolen on 3 November.  That is Charge 1, handling stolen goods.

4You attempted to damage the security camera using a jemmy bar, then you and others jumped on top of the stolen to try to access the second level of the premises by smashing a glass panel.  The panel was broken, which caused an alarm and smoke system to activate.  That was Charge 2, attempted burglary.

5When the alarm sounded, you and the others returned to the ute and left the scene, leaving the van in the car park.  About a week later, the ute was recovered by Broadmeadows police.

6As to the Officeworks offending, on 25 November 2018, at about 4.30 in the morning, you, a co-offender, Michael McDonald, and a third unknown person attended at the rear of Officeworks in Epping.  You were driving a Commodore sedan and at the time were a probationary driver.  You were not displaying your P-plates, and the car had registration plates that belonged to a different vehicle.  That relates to summary Charges 7 and 8.

7You drove the car up to the rear of Officeworks, and the three of you got out of the car.  You were all wearing dark clothing, and your faces were covered by bandannas.  Additionally, you were wearing a cap.

8You all approached the rear roller door of Officeworks and attempted to open it using jemmy bars, but were unsuccessful.  The other two approached the fire exit door and gained access to the store using a large set of bolt cutters. 
You remained in the driver's seat and kept lookout.  That is Charge 3, burglary.

9The others went through various items, then made their way to the cash registers at the front of the store.  A witness observed the burglary occurring and called 000. 

10At 4.36 am, whilst the others were still inside the store, police arrived in a marked van.  The others were observed by police running out of the store to your car.  A collision occurred between the police vehicles and the car you were driving.  Your car became inoperable.  Police approached your car and told you all to get out.  You unsuccessfully tried to restart the car.  Police then smashed the driver's side window, causing it to shatter, and deployed OC spray, and you were placed under arrest.  That is Charge 4, resisting an emergency worker on duty.

11McDonald and your other co-offender left the car and ran from the police, jumping over a steel fence.  McDonald was eventually located in a shed situated in Epping, with the assistance of Victoria Police Air Wing and the dog squad.  The third individual was not located and has not been identified.

12Police at the scene located and seized a set of bolt cutters and your cap. 
You were taken to hospital for treatment, and when a search was undertaken, police located a Ziplock bag containing .5 grams of methylamphetamine - Charge 5, possessing methylamphetamine - the bandanna worn by you during both sets of offending, and the key to the Commodore you were driving.

13Additionally, your blood was tested and found to contain .24 milligrams of methylamphetamine, that being the uplifted summary Charge 18, drive whilst exceeding the prescribed limit.

14You made a 'No comment' interview. 

15You are currently aged 28.  Your parents were separated when you were young, and you have had limited contact with your father.  Your father was described as being a very negative role model, using drugs and consequently being in and out of the prison system. 

16You have a close relationship with your mother, who has provided for you and your sister, raising you both as a single parent over the years.  Your sister, who is five years younger than you, currently works as a youth worker in a residential unit.  Your relationship with her has been distant over the years, but has, in recent times, developed into a strong and nurturing one.  Your mother, sister and two friends were in court to support you, and I was informed that it is planned that you reside with your mother in Melton on your release.

17You also have a good relationship with your stepfather, who has been with your mother for about 10 years.  Your family own a relatively new courier business named Spot On Transport, and you have immediate work available to you with your stepfather, who is the principal driver - see Exhibit 2, letters from Stacey Carroll and Kyle Hobbs.

18You grew up in the Fitzroy area and completed Year 12 at Fitzroy High School.  You have been, from a young age, a very good, skilled and talented Australian Rules football player.  You have played for different clubs over the years, some of them providing you with funds.  The last time you played was when you were on parole in 2017, and you won the Best and Fairest award at the Murchison-Toolamba Football Club.

19Since you finished school, you have been gainfully employed with various jobs, including data entry and customer relations.  You were employed for a transport company with your stepfather, mainly doing computer work, for approximately 18 months.  As indicated, I was informed that you are able to start work on your release in the small family courier transport business.  You will be able to assist with both manual and computer work, though you will not be able to work driving, giving your license will be cancelled and you will be disqualified for a period of 12 months.

20Your drug use commenced when you were in your late teens in about 2012.  You commenced using ice on a casual basis, though this quickly developed into an addiction.  You had some success in remaining drug-free for limited periods of time, though you have historically returned to drug use, particularly in times of stress.

21Much of your criminal history is related to your drug use.  You have a number of drug, driving and dishonesty-related offences since 2014.  You have been sentenced to a number of community correction orders, and have been before the court on breaches for most of them; that is, you have failed to successfully complete such an order.

22You were first imprisoned in 2016 for a period of six months.  I was informed that the burglary matters, 15 charges, were related to similar kinds of offending as that currently before me.  After your release from custody, you were placed on a community correction order, though that order was breached and you ultimately were required to serve a month in prison.

23In December 2016, you were sentenced to a term of imprisonment of 12 months with a non-parole period of six months.  Those charges included four burglary charges.

24I was informed you successfully completed the period on parole, and that during that time, you remained drug-free and were employed as a carpenter.  You had been able to gain this employment through your involvement in the local football club.  Unfortunately, the business closed down and ultimately led to you relapsing into drug use and further offending.

25You were remanded and sentenced to six months' imprisonment, and a fine was imposed in May 2018.  You were released in late September and were residing with your co-accused McDonald for most of the time, and were using drugs on a daily basis.

26You were remanded in respect of these matters, and have been in custody since 25 November 2018.  This is the longest period of time that you have spent in custody, being a period of about 12 months.  So it is about 10 months, I think.

27During this time, your grandmother passed away from pancreatic cancer, and you have been ill-equipped to deal with that loss.  You were particularly close to her, as she had helped your mother raise you and your sister from childhood. 

28As is apparent from your history, this is your fourth period in custody.  I was informed that your circumstances and attitude have changed significantly as compared to your other times in custody.  You had never involved yourself in programs to address your drug or other issues when you had previously been incarcerated.

29I was provided with a number of certificates of completion regarding various courses that you have undertaken whilst on remand for these matters.  These relate to various areas, including alcohol and drug awareness and counselling, as well as addressing lifestyle issues. 

30You have been motivated to look at the causes of your offending, and driven to overcome your drug issues.  I was informed that you are a recreations billet at Marngoneet prison, and that that involves you having a degree of responsibility.  Part of that role involves you motivating and encouraging other prisoners to participate in sport.

31You have also provided clean drug screens whilst in custody, and have not been required to submit them on a regular basis.

32I take into account your plea of guilty.  You will obtain the full benefit of an early plea, as even though there was a contested committal, the only witnesses cross-examined were police and their cross-examination concerned only charges that were ultimately withdrawn.

33There is a utilitarian benefit in your plea, and you have saved the court and the community the cost of a trial.  I accept that your pleas are also indicative of remorse.  You have expressed remorse to both your mother and your stepfather.  Such sentiments are consistent with your desire to turn over a new leaf, and to engage in pro-social activities and work on your release.

34Notwithstanding your criminal history, it was submitted by your counsel that you had reasonable prospects of rehabilitation.  In consideration of your level of maturity and age, the significant period of time you have served on remand, the recent efforts you have made whilst on remand to address your drug issues and offending behaviour, the level of your skills, and of other abilities that you have, the work available to you, and your continued family support on your release.

35I accept that you have reasonable rehabilitation prospects, but it is important that you understand that you require assistance and will continue to do so in time of personal stress, and that reversion to drug use will quickly find you back in custody for longer periods.

36Given your prior history, this is the last chance that you are likely to get to reform and live a productive life.  I accept you are genuinely motivated and have taken the first steps, but there is still a long way to go. 

37There were some aggravating features of your offending.  The businesses were soft targets, and it occurred late in the night.  Your offending occurred in company.  There was a level of planning, with you being equipped with implements to assist with the break-ins.

38Your counsel submitted that parity considerations were relevant. 
Your co-offender, Michael McDonald, ultimately pleaded to different charges - burglary, relating to Officeworks, possess housebreaking implements, delay police, and possessing a drug of dependence.  His matter was dealt with in the Magistrates' Court, and he received 137 days' prison, which was time served, with a 15-month CCO which had related conditions

39I note that he had a significant criminal history, and that he is older than you.  He had been sentenced to terms of imprisonment on a number of occasions.  He did not, however, have the amount of burglary prior convictions that you have, and you do have the additional matters relating to the tobacconist before me.

40I accept issues of parity are relevant in sentencing you, and I take them into account.

41Your counsel conceded a term of imprisonment was appropriate, but submitted that time served, or the time you have spent on remand, adequately represented all of the relevant sentencing considerations.  Alternatively, it was submitted that I should impose a combination sentence - namely, that I impose a term of imprisonment with a community correction order to be completed at the end of that term.

42I had you assessed as to your suitability for a community correction order by a representative from the Office of Corrections, and you were deemed suitable, with various conditions also recommended.  This was so even though you had not been successful in completing such an order and previously had been given a number of chances.

43The prosecution submitted that I should not accede to any of your counsel's submissions, that the seriousness of your offending, your prior history, and protection of the community considerations were such that I should impose a term of imprisonment with a non-parole period, that you had failed when given the opportunity on a community correction order over the years, and that you should not be given another chance.

44If you had failed to take any steps to overcome your drug issues with this stint in custody, I would have been more inclined to accede to that submission.  However, I accept your genuineness and self-motivation in your attempts to reform and lead a drug-free, law-abiding life.

45The principles of general deterrence, just punishment and denunciation are important sentencing considerations.  The impact that this kind of offending has on small businesses is not trivial.  Specific deterrence is also of relevance, particularly given your history of similar kinds of offending. 
These considerations must be balanced with matters in your favour, including your plea, efforts at rehabilitation, and issues of parity.

46Taking all the relevant matters into account, I propose to sentence you as follows.  If you could please stand?

47In relation to Charge 1, handling stolen goods, you are convicted and sentenced to a term of imprisonment of one month.

48In respect of Charge 2, attempted burglary, you are convicted and sentenced to a term of imprisonment of six months.

49In respect of Charge 3, burglary, you are convicted and sentenced to a term of imprisonment of nine months.

50I will also be imposing a community correction order to commence at the end of the sentence, which will become apparent when I have finished each of the offences.

51In respect of Charge 4, you are convicted and sentenced to one month's imprisonment.

52And in respect of Charge 5, you are convicted and sentenced to one month's imprisonment.

53In respect of the summary offence 7, failing to display a P-plate, you are convicted and fined $100.

54In respect of the use of the registration plate, summary offence 8, you are convicted and fined $200.

55And in respect of exceeding the prescribed limit, you are convicted and fined $300.

56In relation to summary offence 18, your license will be cancelled, and you are disqualified from obtaining a license for the minimum period, being 12 months.

57The sentence imposed in respect of Charge 2 - three months of it will be cumulative on the sentence imposed on Charge 3, which gives a total effective sentence of one year.

58At the end of that period of time, which in my understanding will be in about four or five weeks, you will be required to commence a community correction order for a period of two years.  You will be required to undertake 75 hours community work on that CCO, and you are also required to engage in the drug and alcohol treatment as recommended by Corrections, and that time can be attributed to the work condition.

59I am also accepting the recommendation of Corrections that you come back for judicial monitoring, and that will be before me at 10 am on 6 February 2020, next year.

60Have the conditions of a community corrections order been explained to you? 
And are you prepared to undergo that?

61OFFENDER:  Yep.

62HER HONOUR:  I am really giving you a chance to show me that you can do a community correction order, and that you can maintain the commitment that you have already shown in this last stint that you have had in custody. 
The judicial monitoring on 6 February will just be me making sure that everything is going to plan.  Now, my associate will print out the community correction order.

63I also declare pre-sentence detention of 333 days.

64I make the disposal order that is sought from the prosecution, also the compensation order, and also the s.464ZF order.

65MR COOKSON:  As Your Honour pleases.

66HER HONOUR: Pursuant to s.6AAA of the Sentencing Act, if you had not pleaded guilty to these matters, I would have imposed a term of imprisonment of three years with a non-parole period of 18 months.  Now, are there any other matters?

67MR COOKSON:  Was Your Honour included to make a supervision condition as well on the ‑ ‑ ‑ 

68HER HONOUR:  Is that recommended?  I just said all the ones that were recommended.

69MR COOKSON:  Yes, Your Honour. 

70HER HONOUR:  I think it is. 

71MR COOKSON:  Yes. 

72HER HONOUR:  Yes.  There was something else.  Time to pay the fines. 
Did you want time?

73MS KARAPANAGIOTIDIS:  Yes, Your Honour.  Could we seek a stay of six months?

74HER HONOUR:  I will give you four.  Hang on, his - yes, all right.

75MS KARAPANAGIOTIDIS:  Just in light of his release date being ‑ ‑ ‑ 

76HER HONOUR:  Yes, six months is fine.

77MS KARAPANAGIOTIDIS:  Thank you, Your Honour. 

78HER HONOUR:  Yes, thank you.  There is a supervision condition on this.  Thank you. 

79MS KARAPANAGIOTIDIS:  Can I approach with your associate, please?

80HER HONOUR:  Certainly.

81MS KARAPANAGIOTIDIS:  Thank you, Your Honour. 

82HER HONOUR:  Thank you.  I can just do those other orders in chambers.  Thank you. 

83MR COOKSON:  As Your Honour pleases.

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