Director of Public Prosecutions v Charles

[2019] VCC 1279

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-18-01891

DIRECTOR OF PUBLIC PROSECUTIONS

v

TAYLOR CHARLES

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JUDGE:	HER HONOUR JUDGE BRIMER
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	9 August 2019
CASE MAY BE CITED AS:	DPP v Charles
MEDIUM NEUTRAL CITATION:	[2019] VCC 1279

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Sentence – theft of and from a motor vehicle – found not guilty at trial of more serious charge of aggravated carjacking – early offer to plead guilty to theft of a motor vehicle rejected by Crown – relevant but limited prior criminal history – offences committed whilst abusing drugs to cope with son’s medical challenges

Legislation Cited:  Sentencing Act 1991
Cases Cited:  DPP v. Dalgliesh (a pseudonym) [2017] HCA 41

Sentence:Aggregate 12 months’ imprisonment, 444 day’s pre-sentence detention reckoned as already served under this sentence

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr W. V. Stougiannos	Office of Public Prosecutions Victoria
For the Accused	Mr B.J. Newton	Victoria Legal Aid

HER HONOUR:

1Taylor Lee Charles, you pleaded not guilty to one charge of aggravated carjacking contrary to s.79A of the Crimes Act, and guilty to one charge of theft of a wallet contrary to s.74 of the Crimes Act before the jury panel on
23 July 2019. The jury found you not guilty of Charge 1, aggravated carjacking, but guilty of the alternative offence of theft of a motor vehicle, contrary to s.74 of the Crimes Act, the maximum penalty for which is 10 years' imprisonment.

2I have had regard to counsel's submissions, both written and oral and to the exhibits tended during your plea.

Background circumstances

3On 24 February 2018, you hired a two-door VW Golf car.  Two days later, on
26 February 2018, you stole a Hyundai iLoad van belonging to Mr D'Ademo (the Van).  Mr D’Ademo, a courier driver, left the Van unattended with the engine running outside a block of apartments at 9 Mountain Gate Drive, Ferntree Gully.   Your acquaintance was driving the VW Golf. During the trial, you gave evidence that your decision to steal the Van was spontaneous when you noticed it stationary with water dripping from underneath the Van.  This caused you to think that the air-conditioner was on and therefore the engine was running.

4Your acquaintance did a U-turn in the VW Golf.  You got out, looked through the windscreen of the unattended Van and saw the keys in the ignition. On your account, the Van was unlocked, you jumped in and drove off, stealing the van.

5You drove the van to another location nearby with the VW Golf following you.  You admitted that you took the wallet and a number of the parcels from the Van before leaving it where you had parked it.

Investigation, arrest and interview

6You were arrested on 10 March 2018 when the car you were driving was pulled over by the police and searched.  You made a 'no comment' record of interview and consented to providing your fingerprints, which were later identified as matching prints found on the Van.

Plea of guilty

7You pleaded guilty to Charge 2, theft of the wallet, in front of the jury panel at the commencement of the trial.  You had offered to plead guilty to theft of the motor vehicle on 21 May 2018.  This offer was rejected by the Crown.
Mr Stougiannos conceded that you are entitled to the maximum discount for an early plea of guilty.

8I have had regard to the utilitarian value that the guilty plea, had it been accepted, would have had, together with the expression of genuine remorse that the offer to plead guilty demonstrates.

Pre-sentence detention

9Both the Crown and defence agree that you have served 444 days of pre-sentence detention in respect of these charges.

10You are currently serving a sentence of imprisonment imposed on you at Ringwood Magistrates' Court on 29 May 2019 in respect of a large consolidation.  Your release date in respect of that sentence is
29 November 2019.

Prior convictions

11Your prior convictions date back to August 2016 when you were convicted of offences relating to possession and use of methylamphetamine and going equipped to steal.  In relation to the matter heard at Dandenong Magistrates' Court in September 2017, you were convicted and a Community Correction Order (CCO) of 12 months was imposed.

12You breached that order on a number of occasions, including by failing to attend appointments, incurring six unacceptable non-compliances.  From about the end of 2016 to early 2018 you were “on the tear” as described by your counsel. As at the date of the contravention of CCO report of 26 June 2018, you were considered not suitable for a further CCO.

Personal circumstances

13Your personal circumstances are set out in detail in the psychological report of Warren Simmons, psychologist, dated 21 May 2019.  I have had regard to the report.  In summary, whilst you have always had the love and support of your mother Lynne, that has not been the case in respect of your father.  Your parents separated when you were in early primary school and you have had only intermittent contact with your father growing up.  You have not seen him for the past six years.

14You had no male role model during your formative years.  Despite this, you did well in primary school.  You were towards the top academically.  You experienced some trouble during secondary school, however this became less frequent as you progress through school.  You achieved an Enter score of 92.3 in Year 12.  You enrolled at RMIT in a double engineering and infrastructure management degree.  You were also working, and after 18 months of struggling to balance full-time work and study, work became the priority in order to fund your independent life out of home.

15You were a fleet manager, organising 35 to 40 larger trucks, pallet size and freight movements.  After eight years you left and worked for Victorian Toll Ipec until age 28.

16Whilst you have always had enormous potential, Mr Newton submitted it was without the solid foundation of a family unit and the guidance of a male parent, present as a role model.  Your ability to cope when the pressure was on was compromised.

17At the age of 22, you met your then partner, Danielle.  Your son Harrison was born in 2014 with Hirschsprung's disease.  Within two days of his birth you were at the Royal Children's Hospital.  Harrison was on life support and there was a real possibility that he may not survive.  He had major surgery at seven weeks, spending a total of over 12 weeks in hospital.  You turned to methylamphetamine in an attempt to cope with the trauma.  Your relationship with Danielle broke down in 2015.  You did not have any contact with your son for about seven months before commencing proceedings in the Family Court.  Your ex-partner stopped bringing Harrison to your mother's house, for visits in 2016, with the result that you self-destructed.

Objective gravity of the offence

18Mr Newton conceded that the offending is serious, involving the theft of a van and a wallet from an unsuspecting victim going about his work as a courier.  The maximum penalty for the offence is 10 years' imprisonment.

Relevant sentencing principles

19Whilst acknowledging the seriousness of the offence, Mr Newton submitted that it involved a single incident, was unplanned and spontaneous.  The offence occurred during the middle of the day, no disguise was used, and you checked to make sure that the van was unattended.  It was a cowardly act, rather than one of aggression.

20This offence was committed whilst you were in a drug fuelled downward spiral which began when Harrison was born with his significant medical challenges, your access to your son was restricted and you lost your job.  Whilst you had been introduced to cannabis at school and amphetamines at age 18, your use was sporadic.  You used methylamphetamine to stay awake while your son was in hospital.  Your use increased over time but increased markedly after access to Harrison was denied.

21Your prior criminal history is relevant but limited.  Your offending in 2016 coincides with the identifiable trauma that led to your significant abuse of methylamphetamine.

22You have reported issues with anxiety in the past and sought treatment when you were 24.  Your attempts to address your anxiety were interrupted when you were arrested.  You meet the diagnostic criteria for substance use disorder involving methylamphetamine and GHB and for generalised anxiety disorder.  There are also some symptoms of post-traumatic stress disorder, however your symptoms did not necessarily reach the level of criteria for a formal diagnosis.

23Mr Newton drew my attention to subsequent matters which were dealt with on 29 May 2019 at Ringwood Magistrates Court.  You pleaded guilty to a consolidation of 112 charges and to breaching the CCO imposed on you on 22 September 2017.  That is when you were sentenced to a term of imprisonment of six months.

24Mr Newton submitted that you have good prospects of rehabilitation, relying on Mr Simmons' conclusion to that effect.  Mr Simmons noted the lack of significant antisocial personality traits, your history of employment and a previous stable relationship.

25Mr Simmons further concluded that the fact that there was an identifiable trauma that led to your substance use bodes well for your rehabilitation.  Should you be able to deal effectively with your substance use, it would seem that there is a low risk of further offending behaviour.  To this end, Mr Simmons respectfully suggests that you would benefit from a referral for drug and alcohol counselling, focusing on increasing self-efficacy, harm minimisation and relapse prevention strategies.  You would also benefit from a referral to a psychologist who could assist you with cognitive behavioural therapy to help manage anxiety and symptoms of post-traumatic stress.

26I received a letter of support from Lynne Charles, your mother, confirming that you have been in weekly contact, that you speak with your son Harrison weekly, and that she has supported you throughout this process.  She looks forward to moving forward with you when you come home.

27Mr Newton submitted that your motivation to stay on track is strong; to be the father to Harrison that you never had yourself.  Your work history demonstrates your ability to commit yourself to being a productive citizen.

Current sentencing practice

28I am obliged to have regard to current sentencing practices in determining the sentence, though I note the guidance of the High Court in DPP v Dalgliesh (a pseudonym) [2017] HCA 41, that current sentencing practices are one of the many factors that must be taken into account in sentencing. I have looked at the Sentencing Advisory Council higher courts sentencing statistics. In respect of theft of a motor vehicle, 72.6 % were sentenced to a term of imprisonment. 67.7% of the terms of imprisonment that were imposed, were imposed for a period of between 0-1 year and 10.8 % between 1-2 years.

29I was not referred to any material in respect of current sentencing practice by counsel.  Every case is different and the court must have regard to the individual circumstances of each and every case.  This is what I have done.  

Submissions

30Mr Newton submitted that a “time served” sentence is appropriate.  You have served 444 days in custody in respect of these offences.  You have been through a jury trial and faced the prospect of being found guilty of aggravated carjacking, a charge which you have always denied. You are sober (a number of clean urine screens were tendered) and your brain appears, as submitted by
Mr Newton, to be intact.  You have all the motivation in the world to use your recognised and established potential in the workplace.

31Mr Newton submitted that a combined term of imprisonment and CCO is not called for in the circumstances.  Whilst as a general proposition, counselling would be of benefit, to impose a CCO on top of the 444 days served in custody is too punitive.  You have until the end of the year in prison, and upon release you have the support of your mother.  You feel the fall from grace deeply and deserve a chance at sovereignty upon release.

32Mr Stougiannos submitted that a combination sentence is appropriate.  The main punitive element of a CCO is the work condition.  No work condition need be imposed, simply drug and mental health conditions.  Whilst I must interfere with your license, no minimum period is set.

33You were disqualified from holding a licence for six months from 26 May 2019.  Mr Newton submitted that upon release, you will need to obtain a licence to support employment.

34I ordered that a pre-sentence report be obtained.  You were assessed this morning, 9 August 2019.  In summary, the author of the report considers that you are suitable for a CCO.  You showed some insight into the changes you need to implement to minimise your risk of reoffending.  You acknowledged you need assistance with your mental health and drug use, stating that you have never admitted this in the past and you are willing to break this cycle.  You stated that your time in custody has given you the opportunity to reassess your life and your motivation to complete an order.

35I have considered all written and oral submissions, the material tendered on your behalf and have taken into account the matters raised in mitigation on your plea and in the pre-sentence report.  Having carefully considered the potential benefits to you of the imposition of a CCO aimed at rehabilitation, and weighed them with considerations of proportionality, on balance, I accept Mr Newton's submission that whilst counselling would be of benefit, to impose a CCO on top of the 444 days spent in custody would be too punitive.  I take some comfort in the observations that you made to the author of the pre-sentence report, that your time in custody has given you an opportunity to reassess your life and that you are willing to seek counselling and help.  
Mr Charles, your future, your chance to be the father to Harrison that you say you want to be, will be in your own hands.

36I sentence you to an aggregate term of imprisonment of 12 months. There is both a factual and temporal nexus between the two offences. They are founded on the same facts, form or are part of a series of offences of the same or similar character in accordance with s.9 of the Sentencing Act.

37I declare that there are 444 days pre-sentence detention which are to be reckoned as having been served under the sentence.

38Pursuant to s.89A of the Sentencing Act, I order that you be disqualified from obtaining a driver licence or permit for a period of three months commencing today.  In doing so, I have sought to ensure that the period of disqualification imposed will not extend beyond the period for which you are currently disqualified so as not to undermine your prospects of employment upon release.

39Mr Stougiannos, Mr Newton, any other matters?

40MR STOUGIANNOS:  No, Your Honour.

41MR NEWTON:  No, Your Honour. 

42MR STOUGIANNOS: Yes, my friend kindly reminds me that s.6AAA, you give the discount but you have not stated what sentence you would have imposed but for the discount.

43MR NEWTON:  It is a trial.

44HER HONOUR:  Because there was not a guilty plea on the aggravated carjacking, I - - -

45MR NEWTON:  It is a bit of a mixed bag, Your Honour.  I am sorry, Your Honour, just as query, not a position.

46HER HONOUR:  Yes.  I did not take the view that I needed to state that, given the not guilty plea on the aggravated carjacking, although there was a guilty plea - - -

47MR NEWTON: Yes, there was a guilty plea in relation to the theft and Your Honour's imposed an aggregate sentence which incorporates that. Your Honour, it might be - this is reaching the heights of total superficiality in terms of some concerns judges have about s.6AAA declarations, but I was just going to say for the abundance of caution, if you did one ex tempore now, then that would cure it once and for all

48HER HONOUR:  Yes, it would.

49MR NEWTON:  And obviously this is not a matter that is going to be off to the Court of Appeal.

50HER HONOUR:  Yes.  Well perhaps certainly not from your perspective.  It is interesting because it is really just in respect of the Charge 2, the theft of the wallet, but it is an aggregate sentence of imprisonment, which picks up the finding of guilty in respect of that.

51MR NEWTON:  And common sense would dictate it would just be totally unofficial, really, and how could you construct it? 

52HER HONOUR:  Well, I suppose it is - - -

53MR NEWTON:  I mean, for starts, it is the theft of the wallet, not - yes, you know.

54HER HONOUR:  I am just going to go to 6AAA.

55MR NEWTON:  Yes.  I am going to it now. 

56HER HONOUR:  See, if it was just the theft of the wallet, as a quick question as to whether - - -

57MR NEWTON:  Your Honour, I am just looking at sub-s.2 of 6AAA, just so we're all on the same page, and I have that, Your Honour, as saying, 'If an offender is sentenced for more than one offence in the same proceeding', which is this, 'and sub-s.1A and B apply', so 1a is a less severe sentence and 'B, the sentence imposed is an order of imprisonment under IA, then so the court must state in respect of any total effective period of imprisonment', so it is an aggregate sentence, 'a total effective period of imprisonment, A, the sentence and B, the non-parole period, if any, that it would have imposed but for the plea of guilty and need not state those matters in respect of each offence'.  So that would - if we just pause there, that would say that you would be doing it globally on the aggregate sentence is - perhaps my learned friend has a different view but that is my view of that. 

58Then three, 'In the case of sentence other than a sentence referred to sub-s.1B', which is not the case here because we have got a term of imprisonment, sub-s.5, 'For the purposes of this section, an aggregate sentence imposed in respect to two or more offences is to be treated as a sentence imposed in respect of one offence'. 

59HER HONOUR:  So you meet the declaration if a term of imprisonment - - -

60MR NEWTON:  Yes.

61HER HONOUR:  - - - is imposed?

62MR NEWTON: Is imposed. That must be how it goes because as soon as you have an aggregate sentence, that that becomes - that encapsulates the single charge of the plea of guilty from the outset. So yes, my submission is you have to do the s.6AAA globally, which just does not make - it is unofficial, in my submission, Your Honour,

63HER HONOUR:  It is.  I suppose if it is superfluous, but if it is - I will ask
Mr Stougiannos. 

64MR NEWTON:  Do you want to - I have got it here.

65MR STOUGIANNOS:  I am just reading some annotations of Justice Kaye of the Supreme Court in the case of Flaherty No.2, said that 'The court is required to indulge in an artificial exercise in order to apply that section', so he expressed that opinion.  There is some other annotations but - - -

66HER HONOUR:  Is your view as well that the effect of 6AAA(5) is that I make the declaration under 6AAA as the aggregate sentence picks up the plea of guilty in respect of the theft of the wallet and also the effect of the plea of guilty that was offered but not accepted?

67MR STOUGIANNOS:  Yes.

68HER HONOUR:  Or is it just sufficient that there was a plea?  It picks up the aggregate sentence, it picks up the plea of guilty in respect of the charge to which Mr Charles pleaded guilty?

69MR STOUGIANNOS:  Yes, I would agree with that latter view, Your Honour.

70HER HONOUR:  Yes, yes, all right, thank you. 

71MR NEWTON:  Just so my client is not confused, Your Honour, before you do that, may I just approach him briefly so he does not have a heart attack?

72HER HONOUR:  Yes. 

73MR NEWTON:  Yes, I am grateful for that opportunity.

74HER HONOUR: Yes, all right. Well, pursuant to s.6AAA of the Sentencing Act, I declare that but for your plea of guilty, I would have imposed a sentence of 20 months' imprisonment. 

75MR NEWTON:  As Your Honour pleases. 

76HER HONOUR:  Any other matters?

77COUNSEL:  No, Your Honour.

78HER HONOUR:  Yes, thank you.

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