Director of Public Prosecutions v Causby

[2020] VCC 1905

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 20-01116

DIRECTOR OF PUBLIC PROSECUTIONS

v

CLIFTON CAUSBY

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JUDGE:	HIS HONOUR JUDGE McINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	30 October 2020
DATE OF SENTENCE:	30 November 2020
CASE MAY BE CITED AS:	DPP v Causby
MEDIUM NEUTRAL CITATION:	[2020] VCC 1905

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Sentence – Plea of guilty – Burglary – Theft of firearm – Theft – Possess of drug of dependence – Motivated by obtaining funds for drugs – Combined sentence - Imprisonment – Community correction order

Legislation Cited: s.74AA, s.74(1), s.76 Crimes Act 1958 -

Cases Cited:R v Verdins (2007) 16 VR 269 - Boulton v The Queen [2014] VSCA 342 – DPP vBourke [2020] VSC 130

Sentence:Total effective sentence of 8 months imprisonment with 135 days declared as pre-sentence detention. Convicted and ordered to serve a community correction order for a period of 2 years (with conditions) which is to commence upon completion of imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms L. Dawson	Office of Public Prosecutions
For the Accused	Mr M. Kozlowski	Mario Vaccaro

HIS HONOUR:

1Mr Causby, at the time of this offending you were aged 39, you are now 40, having been born on 18 August 1980. 

2At the plea Mr Kozlowski appeared on your behalf, as he does today, Ms Dawson appeared on behalf of the Director, as she does today. 

3You are an assistant manager with the Visy organisation.  At the time of the offending you were off work for medical reasons, on paid leave. 

4Indictment No. L10775112 encompasses four charges, the first three of which occurred on 22 March 2020. 

5The first charge is a burglary, which you committed at 11:00 pm at night at 17 Pioneer Road, Stanley.  You broke into the premises by shoving open the door in some manner, having driven, apparently, from your premises, which would take at least one hour. That day earlier you saw these premises, apparently, you observed some cars on the property at about dusk. 

6At any rate, you committed that burglary, which is a breach of s.76 of the Crimes Act, the seriousness of which is reflected by Parliament prescribing a maximum penalty of 10 years' imprisonment. 

7The second charge on the indictment is the theft of two firearms, a Sportco Omark .22 calibre rimfire, and a Lithgow .22 calibre rimfire rifle.  Each of these were stored in a cabinet, as is required under the Control of Weapons Act, and were stolen by you. This particular offence, pursuant to recent amendments, is particularly serious as under s.74AA of the Crimes Act, the maximum penalty for the theft of firearms is 15 years imprisonment.

8The third charge is of stealing property while you were at the premises, pursuant to the burglary.  The property was that of Donald McDonald, Schedule A to the indictment sets out the property stolen.  The total value of the property amounts to $5,830.  The maximum penalty prescribed by Parliament for such offence again reflects the seriousness of such charge, being 10 years’ imprisonment. 

9You were detected by way of your fingerprints being found on the property, and subsequently arrested on 24 March 2020 at your home, as I understand it, in Wodonga. You were then found to be in possession of methamphetamine or ice, which is an offence against s.73(1) of the Drugs, Poisons and Controlled Substances Act, the maximum penalty being, as your possession was not for a trafficable purpose, five years’ imprisonment. 

10In addition, pursuant to s.145 of the Criminal Procedure Act, your counsel pleaded, on your behalf, guilty to three summary matters, the first being Charge 6, that at Wodonga, you possessed a prohibited weapon, being a dagger, which is a breach of s.5AA of the Control of Weapons Act, for which a maximum penalty of 240 penalty units and/or two years imprisonment is applicable. 

11Summary Charge 8, possession of a registered category firearm without a licence, is a breach of s.6(1) of the Firearms Act, for which the maximum penalty is two years imprisonment and/or 120 penalty units. 

12And finally, summary Charge 12, which was on 3 April 2020, to have breached a curfew condition of your bail twice, which is a breach of s.30A(1) of the Bail Act, for which a maximum penalty is prescribed of three months’ imprisonment and/or 30 penalty units. 

13The record of interview that you undertook was full and frank.  In particular, at Answer 42, you correctly described your crimes as 'a stupid idea to make money'.  Consistent with those comments you made in the record of interview, as your counsel has put, you have been cooperative, effected remorse and ultimately also expressed empathy for the victim.

14You have been on remand, since the 17^th of July 2020.  You have been subject to the COVID-19 restrictions since that time.  You would have been subject to an initial 14-day isolation.  You have been subject to the restrictions which come about as a result of the COVID-19 crisis although, fortuitously, the Corrections department seems to be one of Victoria's bureaucracies who has done its job correctly, and to this date, there is no evidence of any passage of the virus within the prison. 

15That does not mean that I do not take into account the risk to you, nor the restrictions, both on visitors, programs and many other aspects of prison life, including half-day lockdowns. 

16I have been asked to make an ancillary order, a disposal order, which I will make. 

17The matter was resolved very quickly, by September 2020, and as an indication of your cooperation you are now here for sentence in regard to crimes which were committed in March of this year. 

18Exhibit A, which was the Crown opening, was accepted by your counsel as the facts upon which I am to sentence you, Mr Causby.  Exhibit C was the sentencing submissions of the prosecutor. 

19Coming then to the offending, your counsel submitted in his written submissions, [1], Exhibit 1, that the offending was opportunistic.  Now, I do agree with that in one sense; however, it seems to me that it came about by way of a combination of your heavy ice addiction at the time, the impact of such upon your pre-existing mental condition, which had meant that you were not working and were on unpaid leave, the recent breakup with your wife, and financial issues.  Apparently, your wife, who was equally addicted to drugs, had not paid the rates.  As is said, you were on paid leave at the time. 

20Exhibit 2, tendered on your behalf, was a CISP Assessment report which details your struggles at around this time.  The report of Dr Sivaruban, Psychiatrist, Exhibit 3, also confirms the diagnosis made in regard to you, and the treatment that you are undertaking. 

21It is clear that the motivation for the offending, as you have indicated, not only in your record of interview but to the psychologist, was to obtain funds for drugs.  Hence, my reservation with the term 'opportunistic'.  It was opportunistic in the sense that you passed the property and saw something that took your interest.  But you subsequently, that night, came back, in what was clearly planned criminality, and effected, late at night, the burglary and thefts.

22It is important, however, in determining your sentence to understand that you come before the Court with no priors, and a combination of all of the matters that I have just mentioned, which have been motivating factors.  You have had subsequent convictions, essentially which evidence your ongoing issues prior to your remand, with drug addiction. 

23The prosecutor accepts that the offending was not sophisticated, was opportunistic in the sense that you were able to get to a property that was not occupied.  I also think Charge 2, as serious as it is now deemed by Parliament, must be seen as low order.  Clearly, once you were inside the property, you took the opportunity to steal the guns which were there.  There was no intent in regard to those rifles.

24Your criminality, and indeed the matters that you have been convicted of subsequently, are all indicative, of a person who has been impacted dramatically by drug addiction. 

25Your plea by Mr Kozlowski was spoken to by him and tendered Exhibit 1, his submission in regard to sentence.  Mr Kozlowski set out your personal history in that document from [5] to [23].  Mr Kozlowski referred me to the difficulties that you have encountered, being on remand during COVID-19 and, as I indicate, I accept all those matters.  I also accept the utilitarian benefit of a plea in such circumstances, as detailed most recently by the Supreme Court in Bourke [2020] VSC 130, [33].

26It was put that you, having reassessed your life while on remand, have expressed remorse for your crimes, which I accept.  I accept that this was an early plea.  It was put that I should be positive about your rehabilitation.  It seems to me that depends totally on one factor and one factor only. There is no proof before the Court, but I am told that you have been abstinent while on remand from drugs.  There is no evidence to discount that.  But as I say, there is no positive evidence in your favour either.  However, you have indicated an appreciation of the dangers that addiction has brought to you, in particular, as set out the material forwarded to the Court, being the psychologist report of Ms Fleming, Exhibit 4, which essentially confirms all the matters put to me by your counsel. 

27As a result of that report, your counsel submitted today that I should take into account the principles of Verdins (2007) 16 VR 269, in particular, principles 1 through to 4 in reduction of culpability of your crimes, based upon the totality of your mental state. 

28As I indicated to your counsel, I do not, having read that material, and on my assessment, and given the strict analysis that must take place in such assessment, accept that there is an appropriate causal connection.  In saying that, I do not in any way dispute that you had pre-existing issues which had been diagnosed, as are shown by the doctor's report.  I do not in any way dispute that you had a considerable drug addiction.  However, I do not find the necessary causation to bring into effect the principles of Verdins. 

29Both counsel submitted to the Court that a combined sentence pursuant to s.44 be imposed, being a period of imprisonment plus a community correction order.  Your counsel sought, however, a refinement on that submission, in the sense that it was agreed today that pre-sentence detention to date is 135 days.  It was submitted by your counsel that such should be sufficient, and I should pass an order that immediately releases you onto the community correction order.  The submission in regard to that, as far as the prosecution are concerned, was that while the prosecution agree that a combined order is appropriate, the terms of it as to whether there is immediate imprisonment was left to me. 

30Insofar as the application for such a combined order, the community correction report was tendered, Exhibit D.  That report is positive.  It notes the need for supervision, which I agree with.  It also notes your confirmation in that interview of your significant daily use of methamphetamine, the significant impact of that addiction at the time of the offending upon you, and what your counsel has put to me, that you have reported no drug use while in gaol, and an intention to remain abstinent. In those circumstances, a drug treatment condition is recommended to assist you. 

31Further, given your diagnosed mental health issues, a mental health condition is recommended, all of which, as I say ultimately, resulted in a positive report in your favour. 

32Despite the seriousness of these offences, combined orders such as that sought by your counsel can be made, see Boulton v The Queen [2014] VSCA 342. In giving consideration to that submission, I take into account positively on your behalf, that you come before the Court without any priors, that you have received from the community correction order, a positive report, Exhibit D.

33I take into account that you come to the Court as a relatively middle-aged person at the age of 40, without any priors, and all of those matters put on your behalf.  I accept the proposition put by both counsel, that a combined order is appropriate to be made on your behalf.  However, I do not accept the submission made today, that the 135 days served on remand is sufficient in all the circumstances. 

34Mr Causby, I will now pronounce sentence; you may stay seated where you are. 

35In regard to the burglary, Charge 1, you will be sentenced to a period of eight months' gaol; in regard to the theft of firearms, Charge 2, a period of six months' gaol; in regard to the theft of the property of Mr McDonald, Charge 3, a period of four months' gaol; in regard to the possession of methamphetamine, Charge 4, a period of two months' gaol. 

36In regard to Charge 1, which I make the base sentence, that is of the eight months, I order that three months of the sentence on Charge 2 and one month of the sentence on Charge 3 be served cumulatively upon each other and upon the base sentence, making a total effective sentence of 12 months. 

37Insofar as the summary charges are concerned, Charge 6, I pass a sentence of two months; Charge 8, a sentence of two months and; Charge 12, a sentence of two months.  I make no orders as to cumulation in regard to those.

38Insofar as the 12 months total effective sentence, I also order that you be subject to a combined order under the Sentencing Act of a two year community correction order which, pursuant to s.40, will relate to all of the offences.  I declare pre-sentence detention of 135 days, which in conformity with s.18 and s.44(1), being the combined sentence, will be declared as service of the sentence to date.  The total effect of that will be that you will have a 12 month sentence of imprisonment to serve from this day and thereafter, upon release, a two year community correction order.

39Insofar as a community correction order is concerned, I accept the recommendation that you be subject to supervision, that you be subject to assistance in regard to addiction, that you be subject to random testing, that you also be given appropriate mental health assistance as part of such community correction order. 

40It is necessary for you to consent to such order before I formally make it.  The easiest way Mr Kozlowski is for me to stand down while you talk to you client.  Is there anything I need to clarify with you?

41MR KOZLOWSKI:  No, Your Honour.

42HIS HONOUR:  All right, so effectively, it will be 12 months, of which I will declare PSD of 135 days, and therefore the balance of 12 months to be served, and thereafter a two year community correction order, and no cumulation on the summary matters.

43MR KOZLOWSKI:  Yes, Your Honour.

44HIS HONOUR:  And I have signed the disposal order.  Yes, I will stand down while that occurs.

45(Short adjournment.)

46HIS HONOUR:  Mr Kozlowski, before you pronounce your client's views as to the community correction order, I have re-thought the sentence.  What I intend to do is reduce the total effective sentence to eight months, instead of twelve. 

47MR KOZLOWSKI:  As Your Honour pleases.

48HIS HONOUR: Taking account of your client's lack of priors, in those circumstances, I simply confirm all the orders I have made, but I will not make any sentence cumulative, so that the eight months from Charge 1 will be in effect the total effective sentence, and there will be no orders as to cumulation.  There will be pre-sentence detention of 135 days in regard to that, which is essentially four and a half months.  Hence Mr Causby has to serve the balance of the period of eight months, before he enters into the two-year community correction order.

49MR KOZLOWSKI:  As Your Honour pleases. 

50MS DAWSON:  As the Court pleases. 

51HIS HONOUR:  What is the position in regard to the community correct order?

52MR KOZLOWSKI:  He understands the proposed conditions, Your Honour; he consents to it.

53HIS HONOUR:  Yes, thank you.  Insofar as that is concerned, I will formally then pronounce that the orders that I have already pronounced by way of imprisonment.  The current emergency provisions allow me to accept counsel's advice that his client is accepting of the community correction order.  However, Ms Kozlowski, what we will do is forward the order to your client to be signed in custody and returned to this Court.

54MR KOZLOWSKI:  Yes.

55HIS HONOUR:  I formally indicate that the pre-sentence detention is 135 days, that it is declared pursuant to s.18 to be service of this sentence and that a declaration to that effect be recorded in the records of this Court.

56Insofar as complying with the provisions of s.6AAA, which the learned prosecutor detailed and reminded the Court of its obligation, Mr Causby, what the Parliament requires is for you to understand the benefit of your guilty plea.  What I can indicate to you is that had you not pleaded guilty, the sentence I would have given you is not eight months and then a two year community correction order, but a sentence of two years imprisonment with a minimum of 14 months imprisonment to serve. 

57I have signed the disposal order.  Anything else I have to do?

58MS DAWSON:  No, those are the matters, Your Honour.

59HIS HONOUR:  Thank you.  And I thank both counsel for their assistance.

60MR KOZLOWSKI:  Thanks, Your Honour.

61MS DAWSON:  As the Court pleases.

62HIS HONOUR:  And good luck, Mr Causby, make sure that you are not before the Court again, and that you do not have the issue of drugs any further because you now realise the problems that it has brought upon you. 
Mr Kozlowski, I will give you the opportunity to talk to your client again so that he fully understands the period of imprisonment having been reduced by me by four months.

63MR KOZLOWSKI:  Yes, thank you, Your Honour.

64HIS HONOUR:  Yes.

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