Director of Public Prosecutions v Castleman
[2020] VCC 2002
•11 December 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CR-20-00869
Indictment No. K12664501
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JACOB CASTLEMAN |
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JUDGE: | HIS HONOUR JUDGE C RYAN | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 24 November 2020 | |
DATE OF SENTENCE: | 11 December 2020 | |
CASE MAY BE CITED AS: | DPP v Castleman | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 2002 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: burglary - theft - intentionally destroying - theft of a firearm - general deterrence and particularly specific deterrence - early plea of guilty - full admissions - youthful offender – COVID-19
Legislation Cited: Sentencing Act 1991 (Vic)
Sentence: 30 months’ imprisonment and I fix the period of 18 months’ imprisonment as the period you must serve before you will become eligible for parole - s6AAA: but for your plea of guilty I would have sentenced you to 4 years’ imprisonment with a minimum term of 3 years’ imprisonment
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms H Baxter (For plea) Ms C. Eckersley (For sentence) | Solicitor for the Office of Public Prosecutions |
| For the Offender | Ms E. Millar | Victoria Legal Aid |
HIS HONOUR:
1 Jacob Castleman, on 24 November you pleaded guilty to an indictment containing six charges, being two charges of burglary (Charges 1 and 3); three charges of theft (Charges 2, 4 and 6) and one charge of intentionally destroying property (Charge 5). It is to be noted that Charge 6 was theft of a firearm.
2 The maximum penalty for burglary, theft and intentionally destroying property is 10 years’ imprisonment, while the maximum penalty for theft of a firearm is 15 years’ imprisonment.
3 You admitted your criminal record that, excluding contravention and breach proceedings, reveals you have 53 findings of guilt or prior convictions from 11 appearances, your first appearance being on 4 March 2013 at the Horsham Magistrates’ Court when you were aged 17 years. You have two prior convictions for burglary and 14 prior convictions for theft, as well as a conviction for obtaining property by deception and a finding of guilt for handling stolen goods. In addition, you have prior convictions and findings of guilt for driving offences, bail offences, weapons and explosives offences and crimes of violence.
4 Tendered as Exhibit "A" and read aloud in Court was the Summary of Prosecution Upon Plea. On 9 October 2019, together with your younger brother Jaiden, who was then aged 19 years, you attended at 35 Picnic Road, Dimboola, where you entered your victim’s house (Charge 1). There you stole an LG flatscreen television and a number of remote-control vehicles, a DVD player, a toolbox and a gun bag. Together with your brother you took the stolen property back to your home at 24 Upper Region Street, Dimboola. The stolen property was valued at approximately $5,000. (Charge 2)
5 The following day, being 10 October 2019, you returned to the property at 35 Picnic Road to see if there was a rifle located in the house. You entered the house (Charge 3) located a gun safe in a storeroom and dragged it out of the house and loaded it into your car together with a rifle case and returned to your home.(Charge 4) Using an angle grinder, you cut open the gun safe (Charge 5) and located a .177 Diana air rifle (Charge 6), a container of discharged shotgun cartridge cases, a container of shot and a container of propellant suitable for reloading the discharged cartridge cases (Charge 5). You hid the reloading material in a shed in the rear yard of your home and took the air rifle to a friend’s farm in Kalkee, where you hid the air rifle in a woolshed. You then took the gun safe to an isolated area of the Wimmera river, where you threw it into the river and sunk it by throwing branches onto it.
6 Your victim attended his home on 11 October 2019 and noticed items missing from his home. Police attended the victim’s address and while there observed your car pass the property. The police intercepted you and your brother in your vehicle. On searching your vehicle, a remote-control boat belonging to your victim was found on the back seat. You were cautioned at the scene and initially told the police that you had purchased the boat via Facebook and denied any involvement with the theft of a firearm. You were then taken to the Horsham police station and interviewed under caution, you admitted that you had told the police lies and made full admissions as to your offending.
7 You were charged and remanded in custody and spent 55 days on remand until you were bailed.
8 You committed the instant offences while serving a Community Correction Order and this is an aggravating circumstance of your offending
9 Your co-offender and brother, Jaiden, pleaded guilty to one charge of burglary and one charge of theft at the Horsham Magistrates’ Court on 8 November 2019 and was sentenced to one month’s imprisonment, being timed served, together with an 18 month Community Correction Order, with a condition that he perform 150 hours unpaid community work.
10 Tendered as Exhibit “C” was the Victoria Police criminal record in respect of your brother Jaiden, which reveals that, excluding contravention proceedings, he has 10 prior convictions from three appearances, excluding the appearance in November 2019 in respect to the first burglary the subject of your indictment. Your brother is five years younger than you, has limited prior convictions and was dealt with in the Magistrates’ Court in respect to two charges only. Accordingly, it is open to impose upon you a sentence disparate to that imposed upon your brother.
11 Ms Millar, associate public defender who appeared on your behalf, tendered as Exhibit 1 her sentencing submissions and as Exhibit 2, three references from your father, your present employer and a friend of 10 years.
12 Mr Castleman, you were 24 years of age at the time of your offending and are currently 25 years of age. You were born in Horsham and your parents separated when you were approximately six months old. Both your parents re-partnered and you resided with your mother after your parents’ separation. Your mother remarried when you were aged three. Shortly thereafter your family moved to Tasmania, where you were involved in an accident when your 5-year-old sister set your t-shirt on fire. Fortunately for you, your 8-year-old brother was home from school and saved you by placing you in a bath of lukewarm water. As a result of your burns you required skin grafts to your back.
13 When you were 4 years old your family moved back to Horsham and subsequently moved to Dimboola when you were aged 7 years.
14 Your mother died during surgery when you were 12 years of age. You were present at the hospital at the time of your mother’s death. It was put to me that you had a recollection of being present in the operating theatre when your mother died. I do not accept this as being a statement of fact. However, I accept that you have this image in your memory and believe it to be true. It was put on your behalf, and I accept, that you were traumatised by your mother’s death.
15 When you were aged 13 as a consequence of your mother’s death you were prescribed antidepressants by your local general practitioner, Dr Wilson, and you remained on antidepressants for a period of 3 months. It was put on your behalf that your stepfather would not assist you in renewing the prescription for antidepressants, despite that medication being beneficial to you. You have never been assessed by a psychologist or psychiatrist in respect to any psychological or psychiatric consequences as a result of your mother’s death.
16 Your mother and stepfather had separated shortly before your mother’s death. Your stepfather remarried and you lived with your stepfather and his new wife, who was your paternal aunt, until you were 15 years of age.
17 I was informed that you treated your stepfather like your own father, however your stepfather was described as a heavy drinker who often abused you physically and emotionally. I was informed that your aunt also physically and emotionally abused you.
18 After your mother died, you wanted to live with your biological father, as you had always had a good relationship with him. However, your father worked as a truckdriver and was not always around. Eventually, however, when you were aged 16 or 17, you moved in with your father.
19 After moving in with your father you remained in contact with your stepfather and remained close to him despite his conduct towards you. Your stepfather died in 2016, when you were about 20 years of age.
20 You were educated to Year 10 level at the Dimboola Memorial Secondary School. You struggled at school and received help from your teachers, but never underwent any assessments in respect to any learning disability.
21 After leaving school, you worked with your brother and one of his friends, working on cars until you obtained your first job when you were aged 20, working for a car wrecker in Horsham. You worked at this job for about 2½ years until you lost your licence and accordingly your employer let you go. It took some months for you to find another job which was once again at an auto wreckers, where you worked for eight months, until a week prior to the incident offending when you lost your job because you had no motor vehicle licence.
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Since being released on bail you have left Dimboola and reside in Bacchus Marsh with your employer, Michael Taylor, who is one of your referees.
Mr Taylor is the owner of Taylored Mechanical Repairs and has employed you for approximately five months.
23 In his reference, Mr Taylor wrote that you were introduced to him by one of your close family friends, Daniel Brown, who is the workshop supervisor employed by Mr Taylor. Mr Taylor regards you as a valued member of his team of mechanics. He wrote that you have been honest with him regarding your previous troubles with the criminal law. Mr Taylor wrote that feedback from his patrons is extremely positive in respect to your conduct. Further, Mr Taylor is prepared to offer you an apprenticeship as a mechanic.
24 You have two children aged two and one year respectively from two mothers. In respect to the older child, Hailey, who is aged two, her mother has taken out a Family Violence Intervention Order in respect of you. In respect of your younger child, Zaria, who is aged one year, her mother will not permit you to see her daughter. Accordingly, you have no contact with your two children.
25 You have no history of substance abuse and it was put to me that you had performed well on the Community Correction Order on which you were placed on 14 November 2018. It must be noted that on 14 November 2018, the proceedings against you were for contravention of a Community Correction Order on which you were placed on 12 July 2017. It was under the order of the Magistrates’ Court that the original order was varied and extended from 14 November 2018 for a period of 12 months.
26 Ms Millar emphasised your early plea of guilty and the benefits that flow to you from such a plea, being that it is some evidence of your remorse and that it has utilitarian benefit. Further, Ms Millar emphasised that you are a youthful offender and that your prospects of rehabilitation as being good, as you had removed yourself from Dimboola, had obtained work where you have performed well and that you are looking forward to commencing an adult apprenticeship. Further, Ms Millar emphasised the importance of the principle of totality in any sentences imposed upon you in respect of the two separate incidents. In addition, Ms Millar relied upon the restrictions that will be placed on you as a prisoner should you be sentenced to a term of imprisonment owing to the COVID-19 pandemic.
27 Ultimately Ms Millar submitted that a combined sentence with imprisonment and a Community Correction Order with conditions was the appropriate penalty in all the circumstances. Ms Millar submitted that the term of imprisonment should be the 55 days custody that you spent on remand.
28 Ms Baxter, solicitor, who appeared on behalf of the Crown, submitted that the second burglary was pre-planned with a specific purpose of stealing a firearm. It was acknowledged that you had made full admissions during your Record of Interview and that but for your admissions, the investigators would not have been aware that there were two burglaries. Further, it was accepted that you were entitled to the benefit that arose from those admissions. However, Ms Baxter emphasised that you were subject to a Community Correction Order at the time that you committed the instant offences and that this is an aggravating feature of your offending.
29 Ms Baxter submitted that you were an appropriate vehicle for the application of the principles of general deterrence and particularly specific deterrence, bearing in mind your prior criminal history.
30 Whilst the first burglary and theft appears on its face to have been opportunistic, the same cannot be said for the second burglary which was specifically directed at stealing a firearm. You retained the contents of the gun safe being shotgun pellets, propellant and discharged shotgun cartridge cases, and secreted the air rifle that you stole in a woolshed. You are fortunate that the firearm that you stole was a .177-calibre air rifle as opposed to a more potent firearm such as a sporting rifle.
31 I regard your offending, and particularly the second burglary and what flowed from it, as serious examples of the crimes of domestic burglaries and thefts. You committed these offences whilst on a Community Correction Order. This is an aggravating feature of your offending. You are an appropriate vehicle for the application of general and specific deterrence and your criminal conduct must be justly punished and publicly denounced. However, you entered your pleas at an early stage and are entitled to the benefits that flow to you from those pleas. You have left the Dimboola area and your life has stabilised and you have a productive future ahead of you working for Mr Taylor with the prospect of an apprenticeship. You are still to be regarded as a youthful offender.
32 However, since the age of 17 you have been a prolific offender. You have been the subject of community-based dispositions which you have breached. It cannot be said that you did not fully appreciate the nature, seriousness and consequences of your criminal conduct. In my view, the only appropriate disposition in all the circumstances is one of imprisonment.
33 Doing the best I can taking into account the circumstances of your offending and their effects, your personal circumstances and antecedents, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you, I sentence you as follows:
On Charge 1, 12 months’ imprisonment;
On Charge 2, 12 months’ imprisonment;
On Charge 3, 18 months’ imprisonment;
On Charge 4, 12 months’ imprisonment;
On Charge 5, 6 months’ imprisonment; and
On Charge 6, 15 months’ imprisonment.
34 I order that 6 months of the sentence imposed on Charge 1, together with 6 months of the sentence imposed on Charge 6, be served cumulatively upon each other and upon the sentence imposed on Charge 3. This results in a total effective sentence of 30 months’ imprisonment and I fix the period of 18 months’ imprisonment as the period you must serve before you will become eligible for parole.
35 I declare that you have spent 72 days by way of pre-sentence detention, not including today.
36 Pursuant to s6AAA of the Sentencing Act 1991 I declare that but for your plea of guilty I would have sentenced you to 4 years’ imprisonment with a minimum term of 3 years’ imprisonment. Is there anything arising out of the sentence Ms Eckersley?
37 MS ECKERSLEY: No, Your Honour.
38 HIS HONOUR: Ms Millar?
39 MS MILLAR: No, Your Honour.
40 HIS HONOUR: Two-fifteen. Would you adjourn the court to 2.15 please.
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