Director of Public Prosecutions v Dixon

[2022] VCC 2291

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-22-01096

DIRECTOR OF PUBLIC PROSECUTIONS

v

LUKE DIXON

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JUDGE:	HIS HONOUR JUDGE GAMBLE
WHERE HELD:	Melbourne
DATE OF HEARING:	25 October and 8 December 2022
DATE OF SENTENCE:	14 December 2022
CASE MAY BE CITED AS:	DPP v Dixon
MEDIUM NEUTRAL CITATION:	[2022] VCC 2291

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence.

Catchwords:              

Legislation Cited:      

Cases Cited:

Sentence:                  

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APPEARANCES:	Counsel	Solicitors
For the Prosecution	Mr J. Connolly (Plea) Ms M. Kiapekos (Sentence)	Office of Public Prosecutions
For the Accused	Ms R. Greensill	Robyn Greensill & Associates

HIS HONOUR:

Introduction

1Mr Dixon, you have pleaded guilty to an indictment containing three charges of theft,[1] two charges of criminal damage,[2] one charge of burglary[3] and one charge of possession of a drug of dependence, namely cannabis.[4]

[1] Charges 1, 2 and 5 on Indictment M12714011.1.

[2] Charges 3 and 7 on Indictment M12714011.1

[3] Charge 4 on Indictment M12714011.1.

[4] Charge 6 on Indictment M12714011.1

2The maximum penalty for each of theft, criminal damage and burglary is 10 years’ imprisonment. As I am satisfied on balance that the cannabis was not possessed by you for any purpose related to trafficking, the lesser maximum penalty applies to the drug possession charge, namely a fine of up to 5 penalty units.

3You have also consented to this court hearing and pleaded guilty to the related summary offence of commit indictable offence whilst on bail, for which the maximum penalty is three months’ imprisonment.

4You were 29 years of age at the time of this offending and are now 30, having been born in July 1992.

Circumstances of the offending

5The circumstances of your offending are set out in the typed summary of prosecution opening which has been acknowledged by your counsel as an agreed statement of facts for sentencing purposes.[5] When determining the appropriate sentence, I have had regard to that opening and to the discussions which I had with counsel during the plea hearing.

[5] Dated 4 October 2022 (Exhibit A).

6For present purposes, the following summary will suffice.

7At approximately 11:00pm on 27 November 2021, a man named Gity Mansouri parked his Toyota Corolla vehicle (bearing the registration plates XDI152) on a residential street in Croydon South. The keys were left inside the vehicle. At approximately 8.00am the next morning, he discovered that it had been stolen. The theft of this vehicle is the subject of Charge 1 on the indictment.

8At approximately 10:00pm on 28 November 2021, a female named Stella Richards parked her Toyota hatchback vehicle (bearing the registration plates 1DY3WW) near the intersection of two residential streets in Preston. At approximately 6:15pm the following day, she returned to find that the licence plates had been stolen. The theft of those plates is the subject of Charge 2 on the indictment.

9At 2:34am on 29 November 2021, you parked Mr Mansouri’s stolen Toyota Corolla vehicle, now bearing Ms Richards’ stolen licence plates, at the front of Beauty on Rose, a beauty salon located in Essendon. You were in the driver’s seat while your unknown male co-offender was in the front passenger seat. You were both dressed in black clothing.

10CCTV footage from within the salon captured the offending that followed.

11Your co-offender used a metal implement that resembled a crowbar or a golf club, to strike and ultimately shatter the sliding glass doors at the front of the salon. The destruction of the glass doors of the salon is the subject of the offence of criminal damage alleged in Charge 3 on the indictment.

12While this was occurring, you retrieved a wheelie bin from the rear of the stolen vehicle and took it into the salon. Your co-offender then entered carrying an axe and the metal implement.

13You and your co-offender then proceeded to steal merchandise from within the store which you transferred to the stolen vehicle using the wheelie bin and he by hand. Within only a few minutes, the two of you had stolen a total of $140,990.20 worth of merchandise, predominately cosmetics, and made your escape in the stolen vehicle.

14The offending at the salon was witnessed by two people who lived nearby and another person who was arriving at their workplace in the area.

15Your entry as a trespasser to the store while having an intention to steal is the subject of the burglary offence alleged in Charge 4 on the indictment.

16And, the stealing of the merchandise, including cosmetics, from that store is the basis for the theft offence alleged in Charge 5 on the indictment.

17Approximately 24 hours after this incident, police located the stolen Toyota Corolla vehicle on a residential street in Reservoir. Its two occupants managed to flee on foot when police approached. The police airwing located them in the backyard of a residential property on Nisbett Street, Reservoir, a short time later. When police arrived and knocked on the front door of that house, a female named Melissa Webb answered the door holding a newborn baby. You were also present. Police merely obtained your personal details at that time as they were then unaware of your connection to the earlier incident at the salon.

18Police seized and then examined and searched the stolen Toyota Corolla vehicle, locating some of the stolen cosmetics as well as your fingerprint in the process.

19On 30 November 2021, police found a listing on Gumtree under the account name of ‘jacko’ which was selling the particular brand of cosmetics that had been stolen during this burglary, a brand that is distinctive to the salon Beauty on Rose. Further enquiries revealed that some of the cosmetics were being stored at the Nisbett Street property.

20It was later confirmed by Ms Webb’s partner, Brian Jackson, that you had attended there with a green shopping bag containing cosmetic creams and asked him and Ms Webb to sell them in exchange for money. It was for that purpose that Mr Jackson listed the cosmetic items for sale on Gumtree. Apparently, you were an associate of Ms Webb’s uncle, who also resided at that property.

21On that same day, Mr Mansouri retrieved his stolen Toyota Corolla vehicle from a tow yard in Heidelberg. He noticed that the brakes operated differently, the mount holding the battery required repair and there were additional scratches on the inside and outside of his vehicle.

22On 30 December 2021, you presented yourself to Heidelberg Police Station in a highly drug-affected state. You were subsequently arrested and found to be carrying 32 grams of cannabis, a small quantity under the applicable legislation. Your possession of that drug in those circumstances forms the factual basis for the offence of possession of a drug of dependence alleged in Charge 6 on the indictment.

23Due to your presentation at the police station, paramedics were called to assess you. While awaiting an assessment, you were placed in a police interview room where you proceeded to headbutt and damage a roller door housing recording equipment. This conduct on your part is the basis for the offence of criminal damage alleged in Charge 7 on the indictment.

24The offence of commit indictable offence whilst on bail alleged in Summary Charge 8 is based on your commission of the drug possession offence while on bail. That bail had been earlier granted by a magistrate on 25 November 2021 in respect of a number of unrelated charges, including extortion, burglary and theft.

25Given your physical state you were not interviewed for the current charges.

Pre-sentence detention

26I note that you were remanded in custody on the date of your arrest, namely 30 December 2021. As you were not bailed until 4 February 2022, you served 36 days in pre-sentence detention for this matter during that time.

27

On 21 June 2022, at your committal hearing, you made no application to have your bail extended and so you were remanded in custody on that date where you have remained ever since. That amounts to an additional period of 176 days of

pre-sentence detention.

28Accordingly, you have spent a combined total of 212 days in pre-sentence detention for this matter, not including today’s date. I will declare that period as time already served later in these sentencing reasons.

Guilty plea

29Attached to the prosecution opening is a chronology of these proceedings.

30An unsuccessful attempt to resolve this matter occurred in March this year. On 21 June 2022, Mr Dixon was committed to this court for trial via a straight hand-up procedure. No witnesses were called at that hearing.

31It is unclear to me exactly when this matter finally resolved but it was listed for a plea hearing on 25 October 2022 and proceeded on that date after Mr Dixon was arraigned and pleaded guilty to the current charges.

32Given that he commenced negotiations in March, pleaded guilty less than a year after being charged and only a few months after his straight hand-up brief committal hearing, I will treat his plea as having been entered at an early stage of these proceedings.

Victim impact

33One of the other factors that this court must have regard to is the impact that this offending has had on any victims.

34A victim impact statement has been made by the owner of the business Beauty on Rose, Ms Egan, as well as by Ms Richards and Mr Mansouri. They were declared on 31 October, 2 November and 8 November, respectively.[6]

[6] Exhibits B, C and D, respectively.

35As Ms Egan explains, this burglary and theft caused a significant amount of stress to her and her team which was in the process of trying to return to operations after 2 years of Covid-19 related closures. She required medication to deal with that stress. None of the recovered cosmetics could be sold through her business as they were no longer considered to be new stock. Although the stolen stock was insured, it could not be replaced until March 2022. This had a flow on effect with her bank and resulted in her having to take out a significant loan to stay afloat. In addition, her insurance premiums and the applicable excess were increased.

36Ms Richards felt unsafe after her vehicle’s plates were stolen and she remains concerned that the offender may know where she lives. This has caused her anxiety and distress, for which she is considering seeking professional assistance. She has felt compelled to sell her vehicle and has done so. She also intends to move addresses early next year.

37Mr Mansouri, and in particular, his two children, have been severely impacted by the theft of his vehicle. It has caused considerable anxiety and they continue to relive the events of that day. They are afraid that the vehicle will be stolen again and that the offender will come to their home. Mr Mansouri suffered the cost, stress and inconvenience of having to arrange for his vehicle to be repaired, and until he was able to borrow a friend’s vehicle, he was unable to travel the considerable distance from his home to his workplace.

Prior criminal history

38As the criminal record filed with this court demonstrates, Mr Dixon, you have an extensive and very relevant prior criminal history for someone of your age.

39You have appeared in court on nine occasions in the nearly five year period between May 2016 and March 2021. As a result of those appearances, you have been sentenced for some 97 offences on my count.

40For present purposes it is of some significance that many of those offences were for dishonesty related conduct in various forms, including 22 for burglary, 13 for theft, 9 for theft from a shop and 6 for theft of a motor vehicle. In addition, you have previously been sentenced for one offence of criminal damage and eight offences of commit indictable offence whilst on bail.

41In addition to those offences, you have also been dealt with for offences relating to violence and threatened violence, contravention of a personal safety intervention order, driving whilst disqualified and cultivation and possession of drugs.

42Over the years you have been given a number of sentences aimed at assisting you to rehabilitate while in the community. You were placed on a 12 month community correction order on 12 January 2017, a combination sentence that included a CCO with an attached justice plan on 20 December 2018, and a 15 month aggregate sentence to be served by way of a drug treatment order on 9 October 2019. You breached the 2018 community correction order imposed as part of a combination sentence. At the breach proceedings on 9 October 2019, the order was cancelled and for the breaching offences, you were given the 15 month sentence to be served by way of a drug treatment order. That order was then varied on 23 January 2019 and later the subject of breach proceedings on 16 March 2021, at which time the drug treatment order was cancelled and you were ordered to serve the balance of the sentence, namely 3 months, in custody.

43Your record in relation to compliance with community-based dispositions of the courts is not good and demonstrates that you have been either unwilling or unable to take advantage of a number of the opportunities that you have been given to address the underlying reasons for your offending, including but not limited to issues related to your drug use and mental health.

44It would also appear that the previous sentences of imprisonment that you have received have been an insufficient deterrent to you re-offending on this occasion. Not only did you re-offend, you escalated the level and seriousness of your offending. On my calculation, you have actually served a sentence in a custodial facility on two previous occasions. Your first such sentence was imposed in December 2018 and consisted of an aggregate term of 119 days’ imprisonment to be served in combination with a 12 month CCO. It would appear from the record that you had served the entire custodial portion of that sentence on remand. In October 2019, you were given a 15 month sentence to be served in the community via a drug treatment order but ended up serving 3 months in custody as a result of breaching the order, commencing on 16 March 2021.

45On that same date, you were sentenced for the new and breaching offences to an aggregate term of 12 months. A non-parole period of 9 months was fixed in respect of all sentences imposed on that date. In respect to that sentence, 217 days was declared by way of pre-sentence detention. On my calculation, you would have become eligible for parole within 2 months of that sentence being passed. The head sentence imposed on that date is not made explicitly clear on the record but acting on the assumption that it was 15 months, it would have expired in about mid-June of 2021.[7]

[7] By law, any non-parole period must be at least 6 months less than the head sentence. The non-parole period here was 9 months so any head sentence had to be at least 15 months if the relevant provisions of the Sentencing Act 1991 were complied with by the sentencing magistrate.

46As already noted, the offending for which you now fall to be sentenced occurred in late November and late December of 2021.

Outstanding charges

47I have been told by your counsel that you are due to appear in the Magistrates Court jurisdiction on 23 January 2023 at which time you intend to plead guilty to a number of charges, including some in relation to the incident for which you were granted bail on 25 November 2021, as part of a consolidated plea.

Personal circumstances

48I now turn to consider your personal circumstances, Mr Dixon.

49Your background has been variously outlined in your counsel’s written submissions and in the various reports upon which reliance has been placed, including the reports of the consultant and clinical psychologist, Bernard Healey.[8]

[8] The reports dated 10 December 2018 and 9 October 2022 were tendered as exhibits 2 and 3, respectively.

50At age 5, you were diagnosed with ADHD, for which you were medicated until the age of 17.

51In late childhood, you were diagnosed with Tourette’s syndrome.

52Your intellectual disability was evident in your school years and led to bullying from fellow students. You have been on a Disability Support Pension since late adolescence. In more recent times, you have been provided with NDIS support.

53You struggled with the academic requirements of your schooling and were provided with a teacher’s aide. You left school very early, in Year 7, when you were 13. You then assisted your father on his horse property. However, you have not been involved in any significant paid work in the community over the last 9 years or so.

54You have had one serious relationship which commenced when you were 17 and lasted for 2 years.

55You have a limited number of interests.

56Your parents separated when you were 13. You have a good relationship with your father who appears to be very supportive and willing to provide you with accommodation as he has in the past. You also maintain contact with your mother who resides in a nursing home. Tragically, you witnessed the aftermath of her attempted suicide and it is due to the residual health issues she experiences as a result of that attempt that she is living where she is. That experience was understandably traumatic for you.

57You commenced to use cannabis when you were 18. You started smoking amphetamine at a similar age and then ‘Ice’ sometime later.  You are vulnerable to using drugs in light of the abovementioned conditions and your social isolation and rejection. You appear to have self-medicated over the years, finding ‘dubious solace and escape through drug abuse addiction and unhelpful social interactions’.[9]

[9] The latter description comes from a report of Mr Healey; see exh 3, page 4.9.

58As Mr Healey explains in his most recent report, he has assessed you on a number of occasions, the first being in December 2016.

59In relation to your most recent periods spent on remand, he notes that you have been prescribed the antidepressant medication, Avanza and re-commenced on the anti-psychotic medication Risperidone to alleviate the symptoms of your Tourette’s syndrome. Although such symptoms are now better controlled, they have not abated altogether and are still noticeable. In that context, there have been some occasions when you have been subject to unkind remarks from other prisoners.

60You have your own cell in a unit at Fulham which is specifically designed for people with an intellectual disability. The staff and prisoners in that unit are aware of your condition and do not discriminate.[10] You are well supported within that unit and have regular access to and communication with nursing and medical staff and your medication requirements are met.

[10] See exh 3, page 1.9.

61While on bail for this matter in early 2022, you underwent the CISP program and lived with your father in Gisborne. You were drug free for 2 ½ months but then left your father’s address when you relapsed into further drug use and commenced associating with negative peers. You were initially assessed for the CISP bail program on 3 February 2022 and, as I noted earlier, released on bail the following day. I have had regard to the contents of the brief CISP progress report covering the period from that date until 23 March 2022.[11]

[11] Dated 23 March 2022 (exhibit 8).

62You also had some positive engagement with the organisation ASCO and their ReStart Program. You were accepted into that program on 27 May 2022 and were seen on four occasions with a view to continuing support on your release from custody.

63As for your current offending, you expressed shame and embarrassment to Mr Healey and explained it by reference to your drug habit and the need to fund it.

64Your full scale IQ has been assessed as 68 meaning that some 98% of your peers would do better.

65Mr Healey is of the view that you remain socially isolated and vulnerable to being taken advantage of by others.

66Your father is keen to take you to live in Queensland to remove you from negative influences and the drug scene here in Victoria. You appreciate his good intentions and support but are concerned about being isolated.

67You have expressed a desire to take advantage of the support of your father and that provided through NDIS so as to embark on a more fulfilling and productive lifestyle with a continued adherence to prescribed medication. Those aims, while worthy, will no doubt be harder to achieve in light of your intellectual disability and the other challenges you face in your life.

68A letter from Disability Justice, DHHS, dated 5 March 2020, indicates that you have been an approved participant of the NDIS Scheme since December 2019.[12]

[12] Authored by Hilda Bouwknegt, Team Leader, (exhibit 5).

69A report from the consulting psychologist, Stephen O’Malley, refers to some of the support you have been receiving as part of your NDIS Support funded Plan since early September 2022.[13] As well as the two audio-visual link consultations with him, you have also been receiving ongoing assessment and treatment from a specialist psychiatrist.

[13] Dated 18 October 2022 (exhibit 10)

70Your NDIS Support Coordinator from Melbourne City Mission, Ms Dowling, has prepared a helpful letter dated 21 October 2022 in which she outlines the funding measures which are currently in place until 2 August next year and the support you have been receiving while incarcerated.[14] The latter has included access to a psychologist and an occupational therapist. As Ms Dowling also notes, while you are grateful for the support that your father provides, you would like to be able to live more independently as you believe that would lessen the chances of you reoffending.

Matters in mitigation

[14] Exhibit 9.

71Your counsel was able to rely on a number of matters in mitigation on your behalf, Mr Dixon.

72As I have noted, you were prepared to plead guilty to these charges at what I regard to be an early stage. By doing so, you have indicated a willingness to facilitate the course of justice. The community has thereby been saved the cost and time associated with any trial. The utilitarian value of that plea is enhanced by it having been entered during the currency of the Covid-19 pandemic when this court is facing considerable trial listing pressures. Furthermore, by pleading as and when you have, the victims of your offending have been spared the ordeal of giving evidence and being cross-examined.

73In all the circumstances, I am satisfied that your plea demonstrates that you have some remorse for what you did.

74A further Covid-19 pandemic consideration relates to its impact on your custodial experience, both on remand to date and whilst serving the remainder of any sentence you receive today. There was an initial period of quarantine isolation and later lockdowns. In addition to that hardship, I accept that the further restrictions that the custodial authorities have had to put in place have negatively impacted on visitation rights, movement within prisons and the extent to which remandees and inmates are able to work and undertake education and other courses. The anxiety created by a perceived higher risk of contracting the virus should not be forgotten either. All of that means that your experience of being in custody for this matter has been and will continue to be more onerous than it would have been in pre-pandemic times.

75There are other factors that are relevant when assessing the difficulty of any time you spend in custody. Not only do you have an intellectual disability, you also suffer from ADHD and Tourette’s syndrome. I accept that each of those conditions add to the degree of difficulty involved in you having to spend time in custody. Fortunately, however, the conditions in which you are presently being housed are less problematic than if you were in the mainstream prison population.

76Your intellectual disability has further relevance to this court’s sentencing task. A fairly moderate reduction in the weight to be attributed to such sentencing factors as general deterrence and denunciation is appropriate. Any reduction in moral culpability and the weight to be accorded to specific deterrence should, however, recognise the fact that much of this offending was premeditated rather than spontaneous and occurred in circumstances where you must have appreciated that what you were doing was seriously wrong.

Gravity of the offending

77This court must also have regard to the gravity of the offending in which you engaged, Mr Dixon.

78The theft of Mr Mansouri’s vehicle was clearly planned and designed to be used for later offending.

79The same can be said in relation to the theft of the licence plates belonging to Ms Richards.

80Each of those victims have been negatively impacted by that offending which occurred in close proximity to their home.

81The incident at the salon involved very serious offending in my view. It was clearly pre-meditated and involved some planning. A vehicle was stolen and used for transportation of the offenders and the stolen items. And only a short time before that incident at the salon, the registration plates were stolen and affixed to the vehicle in an attempt to evade detection. Implements were brought to the scene in order to make a forced entry. The damage caused was no doubt significant and rendered the premises a security risk until repairs could be effected. A wheelie bin was also taken to the scene to assist with the movement of what was clearly expected to be a significant amount of stock. The amount and value of the stock that was stolen was very significant and has had a very significant and adverse effect on the business and its owner. Clearly, some thought had gone into how to sell the stolen merchandise in order to obtain money and I have no doubt that you expected to reap a significant amount of money in the event that the items could be sold.

82I accept that you possessed the cannabis for your own use.

83It is unclear exactly why you damaged the equipment at the police station but it may well be that a degree of frustration and your drug affected state go some way towards explaining your conduct.

84Those two offences clearly fall into a different and lesser degree of seriousness than the other offending in this case.

85I note, however, that those offences as well as the other offences were committed whilst you were on the bail granted to you on 25 November 2021. That is an aggravating factor when it comes to considering that offending.

86The related summary offence of committing the indictable offence of drug possession whilst on that same bail must be treated carefully in order to avoid any risk of doubly punishing you for the same conduct. Any such consideration should be restricted to the fact that you were prepared to flout the authority of the court and the opportunity that the magistrate gave you when granting you conditional liberty.

Relevant sentencing principles

87Whilst sensibly moderated, the sentencing principles of general deterrence and denunciation are still relatively important considerations in this case.

88Given the nature and seriousness of this offending and Mr Dixon’s very relevant criminal history, specific deterrence and protection of the community are of obvious relevance in this sentencing exercise even allowing for some lessening of the weight to be attached to the former.

89Mr Dixon’s age and prospects of rehabilitation are important considerations in the mix. He is still a relatively young man and one must allow for some further maturation. However, he faces numerous obstacles in any attempts to achieve long term rehabilitation, including his serious drug addiction and propensity to mix in negative peer groups, each of which make him more susceptible to commit criminal offences. He has yet to display a sustained level of commitment and discipline to his rehabilitation whilst in the community. I do, however, allow for the fact that his time on remand for this matter has given him an opportunity to detoxify and reflect on his life. He is fortunate to have the surrounding support that he has from his father and under the NDIS scheme and that will go some way towards assisting him once he is released from custody. But, much will depend on his ability to stay drug free in the long term and that will not be easy. It would be naïve to think otherwise.

90In the end, doing the best that I can on the available information, I have concluded that Mr Dixon’s prospects of rehabilitation are fair but guarded.

91The totality principle must also be considered and applied in this case. Much of the offending occurred within a short space of time and a number of the offences were committed during the course of a single episode of offending. Whilst each of the offences still add a separate degree of criminality to Mr Dixon’s offending and make it more serious, there is also a degree of overlap between some of the charges. One example is that the entry element for the purposes of the burglary charge was effected by means of engaging in criminal damage to the front doors of the premises which were burgled. Ultimately, the total punishment imposed must be commensurate with the extent of the criminality involved in the offending, no more and no less.

Sentencing submissions

92In her sentencing submissions on behalf of Mr Dixon, Ms Greensill submitted that a combination sentence involving a custodial sentence equivalent to time served or thereabouts followed by a lengthy and suitably conditioned community correction order with both a punitive and rehabilitation focus, was both open and appropriate in this case. As she put it, such an order could include a Justice Plan condition which would provide an addition layer of assistance to Mr Dixon. In making her submission, defence counsel placed particular reliance on her client’s plea, his intellectual disability and the engagement of a number of the limbs in Verdins case, and the onerous nature of any time he needed to spend in custody.

93As an alternative submission, she submitted that in the event that the court were not prepared to impose a combination sentence, then any head sentence and non-parole period should be kept to the minimum in all the circumstances of this case.

94For his part, Mr Connolly, counsel appearing on behalf of the Director, submitted that nothing other than a head sentence with a non-parole period would be sufficient to reflect the seriousness of this offending and the sentencing principles of deterrence, denunciation and just punishment.

Court ordered assessment

95Before coming to any final view as to the appropriate sentencing disposition in this case, I arranged for Mr Dixon to be assessed for his suitability for a community correction order with a Justice Plan condition. In this context, I note the following historical documentation:

·The statement of intellectual disability from DHHS dated 13 December 2018;[15]

·The Health and Human Services Disability Overview Report dated 10 June 2020; and

·The Justice Plan dated 10 June 2020.[16]

[15] Exhibit 4.

[16] Exhibit 7.

96In response to my request, the court was provided with the following reports:

·A Disability Overview Report dated 29 November 2022;

·A Justice Plan dated 29 November 2022;

·A community correction order assessment outcome report dated 4 December 2022; and

·A Forensicare Report (undated but for which the assessment was conducted on 7 December 2022).

97After noting your report that you were using the drug Ice heavily around the time of this offending, the author of the Forensicare report notes that you appear to have good insight into your substance use and offending and a desire to reduce and then cease such use in the community. You also plan to engage with the well-established NDIS support on your eventual release from custody. You are not considered to be in need of any ongoing court mandated mental health treatment, with such assistance able to be pursued through a GP.

98The Disability Overview Report notes that you believe that when you use methamphetamines, you do things that you would not normally do. You expressed a willingness to participate in any programs, including a Justice Plan.

99The Justice Plan recommends the following:

·Engagement with a Disability Justice Coordinator from DFFH and participation in further planning or recommended services as required;

·Referral to a Forensic Disability Clinical Services Team and participation in any recommended offending behaviour programs; and

·Participation in a referral to alcohol and drug treatment as required by the Disability Justice Coordinator or Community Correctional Services.

100

The interviewing officer who prepared the CCO assessment outcome report noted Mr Dixon’s history of non-compliance (via conditions and reoffending) with a number of his past community-based court orders. In particular, she notes that the second CCO between 2018-19 encompassed a Justice Plan and that during the Drug Treatment Order, Mr Dixon was supported by the NDIS Scheme. He was considered to have no social supports other than his father. The author concludes by observing that Mr Dixon presents with a limited capacity to comply with a

long-term disposition in light of his recent engagement with Community Correctional Services despite being supported by a Justice Plan and NDIS. Also noted was Mr Dixon’s re-offending within short periods of engagement with support services such as CISP and that stable housing with his father had not served as a protective factor in the past. Ultimately, the author assessed Mr Dixon as being at high risk of re-offending and as being unsuitable for a community correction order.

Analysis

101This has been a difficult and complicated sentencing task which has necessitated the consideration, balancing and weighing of various and in some respects competing sentencing considerations. Were this court’s task restricted to what was best for Mr Dixon, then the option of a combination sentence would be more attractive. But that is not the case and there are other matters that need to be considered.

102As I have already noted, Mr Dixon engaged in very serious offending on this occasion and the fact that he has a very relevant and lengthy past criminal history and has been afforded lenient and rehabilitative focused sentences in the past, limits the degree of leniency that the court can extend to him on this occasion.

103Ultimately, and notwithstanding the various matters in mitigation that can be relied on, I have concluded that a combination sentence would not give appropriate recognition and weight to such sentencing considerations as deterrence and denunciation and would not represent a just punishment for offending of this level of seriousness. In my view, only a sentence comprising a head sentence with a non-parole period can achieve all of the sentencing aims and requirements presented by this case.

104That said, I also note that any sentence of imprisonment will present considerable challenges for Mr Dixon and that it is neither in his or the community’s interest to fix a sentence any longer than is necessary for the interests of justice to be achieved. In particular, it is important to place some additional emphasis on the matters in mitigation when fixing any non-parole period so as to enable Mr Dixon to be considered for release on a suitably tailored and relatively lengthy period of supervised release into the community. That will go some way towards assisting Mr Dixon to rehabilitate and thereby reduce his chances of reoffending and protect the community. And, that is what I intend to do.

Sentence

105Mr Dixon, you will be formally sentenced as follows.

106In respect of each of Charge 6, possession of a drug of dependence, and summary charge 8, commit indictable offence whilst on bail, you will be convicted and discharged.

107In respect of all of the remaining charges, you will be convicted and sentenced to the following terms of imprisonment.

108On Charge 1, theft, 6 months.

109On Charge 2, theft, 3 months.

110On Charge 3, criminal damage, 6 months.

111On Charge 4, burglary, 12 months.

112On Charge 5, theft, 15 months.

113On Charge 7, criminal damage, 1 month.

114The sentence of 15 months imposed on Charge 5 will be the base sentence.

115The following periods are to be served cumulatively on that base sentence of 15 months and on each other: 2 months of the sentence on Charge 1, 1 month of the sentence on Charge 2, and 2 months of the sentence on Charge 3.

116The total effective sentence is therefore 20 months’ imprisonment.

117The non-parole period in respect of that head sentence will be 12 months.

Pre-sentence detention

118Pursuant to s 18 of the Sentencing Act 1991, I declare that Mr Dixon has served a total of 212 days pre-sentence detention, not including today’s date, in respect of today’s sentence.  I order that such period is to be reckoned as already served under that sentence, and I further order that the declaration and its details be entered in the records of this court.

Section 6AAA indication

119Pursuant to s 6AAA of the Sentencing Act 1991, I indicate that but for his plea of guilty to the charges for which he has been sentenced to terms of imprisonment today, Mr Dixon would have been sentenced to a head sentence of 30 months with a non-parole period of 20 months.

Ancillary orders

120The following ancillary orders will be made.

121In respect to any conviction imposed for an offence of theft of a vehicle, the court must cancel any driver’s licences or permits held by the offender and disqualify that person from obtaining any other licence or permit for whatever period the court considers appropriate.[17] Accordingly, in respect to Charge 1, theft of a motor vehicle, any driver’s licences or permits held by Mr Dixon are hereby cancelled and he is disqualified from obtaining any other licence or permit for a period of 12 months, to be effective from today’s date.

[17] See s 89(4) of the Sentencing Act 1991.

122I grant the disposal order relating to the seized cannabis in the terms sought by the prosecution, pursuant to s 78(1) of the Confiscation Act 1997. In exercising my discretion to make that order, I have had regard to the fact that Mr Dixon did not oppose the making of such an order.

123I also grant the two compensation orders in the terms sought by the prosecution, pursuant to s 86(1) of the Sentencing Act 1991. One relates to the cost of $36.00 which Ms Richards incurred by having to obtain replacement registration plates for her vehicle, while the other relates to the $1080.00 that Mr Mansouri had to pay to effect the necessary repairs to his stolen vehicle. Again, in exercising my discretion to make those orders, I have had regard to the fact that Mr Dixon did not oppose the making of such orders.

Other matters

124Are there any matters that counsel need to raise at this stage in relation to either the sentence or the sentencing reasons, starting with you, Mr Connolly?

125MS KIAPEKOS:  No, Your Honour.

126MS GREENSILL:  No, Your Honour.

127HIS HONOUR:  Ms Greensill, would you like to take the opportunity to have a short conversation with your client via the video link once I leave the Bench?

128MS GREENSILL:  No, Your Honour.  He is going to give me a call, so I think we will talk later out of the way of the court, but - - -

129HIS HONOUR:  All right.  Well, look - - -

130MS GREENSILL:  I mean, I could speak to him for - - -

131HIS HONOUR:  You can if you wish to.  My staff will assist the process.  It might be worth just at least touching base with him, seeing he is here, connected to the court.

132MS GREENSILL:  All right.  Just for a moment, just for a moment.

133HIS HONOUR:  Yes, adjourn the court sine die, thank you.

134MS GREENSILL:  Thank you, Your Honour.

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