Director of Public Prosecutions v Ellis
[2020] VCC 956
•29 June 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-00258
Indictment No. K92155768.1
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| AARON ELLIS |
---
JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 3 June 2020 | |
DATE OF SENTENCE: | 29 June 2020 | |
CASE MAY BE CITED AS: | Director of Public Prosecutions v Ellis | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 956 | |
REASONS FOR SENTENCE
---
Subject: CRIMINAL LAW
Catchwords: Sentence – three charges of burglary – three charges of theft – one charge of threat to inflict serious injury – one uplifted summary charge of possessing cartridge ammunition whilst not the holder of a licence or permit; and one uplifted charge of possessing a prohibited weapon without an exemption or an approval – pleas of guilty
Legislation Cited: Crimes Act 1958, s74-76; Firearms Act 1996, s124(1); Control of Weapons Act 1990, s5AA
Cases Cited:Phillips v R [2012] VSCA 140; R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269; Ellis v R [2015] VSCA 320; Director of Public Prosecutions (Vic) v Weidlich [2008] VSCA 203; Director of Public Prosecutions (DPP) v Gerrard (2011) 211 A Crim R 171; Charles v R (2011) 34 VR 41; Brown (aka Davis) v R [2020] VSCA 60; manoska v R [2020] VSCA 66
Sentence: Total effective sentence of 5 years 8 months imprisonment with a non-parole period of 3 years 6 months imprisonment; 228 days of pre-sentence detention reckoned as time already served under this sentence; 6AAA declaration – 7 years 6 months imprisonment with a non-parole period of 5 years.
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr L Cameron | Solicitor for the Office of Public Prosecutions |
| For the Offender | Mr G Davis | Hilton-Wood Solicitors |
HIS HONOUR:
1 Aaron Ellis, on 3 June 2020, you pleaded guilty to the following offences:
Charge 1 – that you, at Nichols Point in Victoria on 13 October 2019, entered as a trespasser a building situated at 516 Cureton Avenue, Nichols Point with the intent to steal therein.
The offence of burglary is contrary to s76 of the Crimes Act 1958 and carries a maximum penalty of 10 years’ imprisonment.
Charge 2 – that you, at Nichols Point in Victoria on 13 October 2019, stole jewellery belonging to Woodsies Gem Shop.
The offence of theft is contrary to s74 of the Crimes Act 1958 and carries a maximum of 10 years’ imprisonment.
Charge 3 – that you, at Nichols Point in Victoria on 13 October 2019, without lawful excuse, made to Cheryl Taylor a threat to inflict serious injury on her, intending that Taylor would fear that the said threat would be carried out or being reckless as to whether or not Taylor would fear that the said threat will be carried out.
The offence of threat to inflict serious injury is contrary to s21 of the Crimes Act 1958 and carries a maximum penalty of five years’ imprisonment.
Charge 4 – that you, at Irymple in Victoria between 23 August 2019 and 24 August 2019, entered as a trespasser a building situated at 499 Morpung Avenue, Irymple, with intent to steal therein.
The offence of burglary is contrary to s76 of the Crimes Act 1958 and carries a maximum penalty of 10 years’ imprisonment.
Charge 5 – that you, at Irymple in Victoria between 23 August 2019 and 24 August 2019, stole a 2016 KTM 450 SX-F motorcycle belonging to Simon Allen.
The offence of theft is contrary to s74 of the Crimes Act 1958 and carries a maximum penalty of 10 years’ imprisonment.
Charge 6 – that you, at Irymple in Victoria between 24 August 2019 and 25 August 2019, entered as a trespasser a building situated at 555 Morpung Avenue, Irymple, with intent to steal therein.
The offence of burglary is contrary to s76 of the Crimes Act 1958 and carries a penalty of 10 years’ imprisonment.
Charge 7 – that you, at Irymple in Victoria between 24 August 2019 and 25 August 2019, stole a Stihl chainsaw belonging to Graeme Whyte.
The offence of theft is contrary to s74 of the Crimes Act 1958 and carries a maximum penalty of 10 years’ imprisonment.
2 Summary Charges 8 and 9 were transferred to this Court pursuant to s145 of the Criminal Procedure Act 2009. On 3 June 2020, you consented to the hearing of the two summary matters in this Court and also pleaded guilty to such charges:
Charge 8 – that you, at Irymple in Victoria on 14 November 2019, did possess cartridge ammunition whilst not a holder of a licence under the Firearms Act 1996 or a permit under s58A.
Such offence is contrary to s124(1) of the Firearms Act 1996 and carries a maximum penalty of 40 penalty units.
Charge 10 – that you, at Irymple in Victoria on 14 November 2019, did possess a prohibited weapon without exemption under s8(b) or an approval under s8(c) of the Control of Weapons Act 1990, namely a conducted energy device.
Such offence is contrary to s5AA of the Control of Weapons Act 1990 and carries a maximum penalty of two years’ imprisonment.
Circumstances of the offending
3 During the plea hearing on 3 June 2020, counsel for the prosecution tendered a document headed “Summary of Prosecution Opening” (Exhibit 1) and I was informed by your counsel that you agreed with the contents of such document.
4 In particular, I note the following:
·You were born on 23 March 1988 and are presently 32 years old. At the time of the offending you were 31 years old.
Burglary at 499 Morpung Avenue
· Between 23 and 24 August 2019 you entered the property located at 499 Morpung Avenue, Irymple (Charge 4 – burglary).
· You went into a shed located at the property and stole a 2016 KTM 450 SX‑F motorcycle (Charge 5 – theft).
· On 24 August 2019 the owner of the property, Simon Allen, reported the incident to police. Allen also noticed that his rear fence had been cut open.
Burglary at 555 Morpung Avenue
· Between 24 and 25 August 2019 you entered the property located at 555 Morpung Avenue, Irymple (Charge 6 – burglary).
· You stole a Stihl MS-211 chainsaw from the property (Charge 7 – theft).
· The owner of the property, Graeme Whyte, noticed that the chainsaw went missing during August. Whyte bought a replacement chainsaw but did not report the theft to police.
Burglary at Woodsies Gem Shop
· Cheryl Taylor and Christopher Woods are the co‑owners of Woodsies Gem Shop (the shop), located in Cureton Avenue in Nichols Point.
· In the early hours of Sunday, 13 October 2019, you left your address in a dark blue Hyundai sedan, drove the vehicle and parked on Morpung Avenue, Nichols Point, adjacent to the property located at 21 Morpung Avenue.
· You were wearing a dark grey hooded jumper, a black and white covering over your mouth, and dark-coloured gloves. You were carrying a metal bar and a garbage bag.
· You first attempted to enter the shop by smashing the front door, which faces onto Cureton Avenue. Although you smashed the bottom glass panel of the door and dented the roller door behind it, you did not manage to gain entry to the property.
· You then walked back onto Morpung Avenue, and from there accessed the fence that forms the edge of the maze located on the shop’s property and runs parallel to Morpung Avenue.
· You cut a hole in this fence and entered the property through the hole, and proceeded through the maze to the shop’s rear door. You smashed open this rear door and gained entry to the shop (Charge 1 – burglary).
· When you got into the shop you smashed open the glass display cabinets to the sapphires, rubies, amethysts and garnet stones with the metal bar. You removed approximately 300–400 items of stones, gold and silver from these display cabinets and placed them into the garbage bag (Charge 2 – theft).
· The value of the stolen jewellery items amounts to $134,284.
· You left the shop through the same door from which you entered.
· At about 1.23am on 13 October 2019, Cheryl Taylor (“Taylor”) received a phone call from the shop’s security alarm company, notifying her that an alarm sensor in the shop had been tripped.
· Taylor started walking along Morpung Avenue towards the shop. As she neared the shop she heard the thumping noise of you jumping over the fence that borders the maze.
· Taylor saw you emerge from behind a tree and bush covering the fence as you were leaving the maze. You were holding a metal bar in your right hand over your head, motioning as if to strike, and the garbage bag in your left hand. You took five or six steps towards Taylor, which made Taylor feel threatened, and you shouted at her:
“I’ve got a gun, don’t ring the cops or I’ll shoot you.”
· Taylor started to back away from you. You repeated the words “I’ll shoot you” twice more to Taylor. Your voice was aggressive and threatening (Charge 3 – threat to inflict serious injury).
· Taylor used her mobile phone to call triple zero and told the phone operator that “a guy just threatened me with a – a gun”.
· The whole confrontation lasted only a few seconds.
· While Taylor was on the phone to triple zero, you ran back to your parked car and drove off in a westerly direction along Morpung Avenue towards Eleventh Street.
· When you arrived home you put the stolen jewellery into two jars and placed the jars inside a toiletry bag which you buried underneath your house between the fourth and fifth poles.
· When police attended and conducted a search of the area, they located some of the stolen jewellery items along Morpung Avenue on the ground, near the hole that had been cut in the fence and the shop’s driveway.
Execution of search warrant and arrest
5 At approximately 9.42am on 14 November 2019, police executed a search warrant at your address. You were present at the time. You advised police that you had a Conducted Energy Device (a Taser) at the property, and advised them of the location of it. Police found and recovered the Conducted Energy Device from your bedroom (Charge 9 – possessing a prohibited weapon without exemption or approval).
6 Later, one of the police found assorted cartridge ammunition for a .22 calibre firearm behind a drawer in the shed (Charge 8 – possessing cartridge ammunition without a licence or permit).
7 You were arrested and transported to the Mildura Police Station.
8 On 15 November 2019, you advised some of the police that you wanted to show where you had hidden the jewellery from the shop. At approximately 11.05am on that day, you went back with police to your address to conduct a further search. At that time you gave instructions of the location of the stolen jewellery underneath the house, which was located and recovered.
Police interviews with you
9 The police conducted a first interview with you on 14 November 2019. At that time you:
(a)denied any involvement in the burglary of the shop, telling police that “this is really the first I’m hearing about it”, and you were “pretty sure” you were home that night (Q&A 75);
(b)admitted visiting the shop a few days earlier (Q&A 31), saying “I got a little cut on my hand in the maze, jumping up on the fence” (Q&A 42). When you were asked why your blood was located on one of the jewellery cabinets, you continued to make denials but conceded that the discovery was “not really great for me but, doesn’t it?” (Q&A 491);
(c)denied any knowledge of the threat made to Cheryl Taylor (Q&A 100–101);
(d)told police that you previously owned a dark blue Hyundai Sonata which you had just sold on Facebook to a guy called “Jim” (Q&A 104, 114, 117). You said that you had not been driving that vehicle recently however, because “the rego had run out on the Hyundai” (Q&A 186, 193);
(e)admitted owning a camouflage face mask that looked like “the exact same” (Q&A 417) as the one used in the burglary;
(f)when asked about the theft of the motorcycle, said: “I asked someone if they could get me a bike engine and they brought me a whole bike ... I wanted a bike engine for a buggy that I was building” (Q&A 234) and that you “[were] told it came from Seventeenth Street, not Morpung” (Q&A 221);
(g)told police that you had bought the chainsaw and that, although you “didn’t know where it came from”, you had bought it from a former co‑worker who was the same person who sold you the motorcycle (Q&A 346, 349);
(h)when asked about the cartridge ammunition located at your address, admitted finding them in an abandoned car the previous year, adding “I don’t know why I kept the shells, I knew they were trouble” (Q&A 315);
(i)disclosed that you had bought a Taser off the internet (Q&A 315).
10 After police recovered the jewellery on 15 November 2019, you participated in a second voluntary interview with police during which you:
(a)admitted committing the burglary at the shop, stating “I just remember breaking some glass, getting into the place, stealing some stuff, and then leaving” (Q&A 607), but said that you could not remember “the fine details” due to “adrenaline” (Q&A 618, 619),
(b)said you used a metal pole that was an “off-cut piece of steel that was in the shed” to break open the display cabinets (Q&A 629),
(c)admitted in relation to the confrontation with Taylor that “I just remember yelling at whoever it was. ... Then I got in the car and drove off” (Q&A 636),
(d)conceded that you probably cut the back of your hand on the cabinet inside the shop, but maintained you suffered a separate cut to the hand during your visit a few days earlier (Q&A 643).
11 You were remanded in custody on 14 November 2019, and as at the date of the plea hearing, but not including the actual date (25 May 2020), you had served 202 days of pre-sentence detention.
12 You pleaded guilty to the charges at the first committal mention on 18 February 2020 and were committed to a plea hearing by a straight hand‑up brief. It is accepted by counsel for the prosecution that your plea was entered at the earliest opportunity in these proceedings.
13 Your criminal record, in an amended form dated 8 January 2020, was tendered (see Exhibit 2). The redactions to that record were consistent with the Criminal Procedure Act 2009 which provides that any convictions pre-dating your 18th birthday involving interstate matters should not form part of such record. As a result, offences listed in South Australia prior to 14 December 2012 are not relevant.
14 In Victoria, you have the following criminal record:
(a)on 26 March 2015 at the Warrnambool County Court, you pleaded guilty to one charge each of burglary, theft, arson and armed robbery and two charges of reckless conduct endangering serious injury. You also pleaded guilty to a summary charge of unlicensed driving.
Her Honour Judge Wilmoth, on 26 March 2015, sentenced you to a total effective term of imprisonment of four years, with a non-parole period of three years. At the time the sentence was imposed, you were serving a period of imprisonment for prior offences.
You appealed such sentence to the Court of Appeal on the basis that it was “manifestly excessive” and the appeal was dismissed. Counsel for the prosecution tendered a copy of the Court of Appeal judgment Ellis v R [2015] VSCA 320 (see exhibit 3). It is clear that Judge Wilmoth sentenced you to four years’ imprisonment, with a non-parole period of three years. Furthermore, pre-sentence detention was declared of 184 days. I was informed from the Bar table that you were paroled in May 2017 – approximately 15 or 16 months prior to the commencement of the subject offending;
(b)on 23 September 2014 at the Warrnambool Magistrates’ Court, you were convicted and sentenced to a number of different offences, which included:
(i)you were found guilty of one charge of dangerous driving while pursued by police and one charge of unlicensed driving and sentenced to an aggregate six months’ imprisonment, two months of such sentence to be served concurrently. The effective total State term imposed was one year and two months, with a non-parole period fixed at eight months. Your licence was cancelled and you were disqualified for 12 months, effective from 23 September 2014;
(ii)you were found guilty of committing an indictable offence whilst on bail and sentenced to the aggregate sentence described above, and sentenced to an aggregate six months’ imprisonment, to be served part concurrently for two months. The effective total State term imposed was one year and two months, with a non-parole period fixed at eight months.
(iii)you were convicted of possessing a prohibited weapon without exemption or approval and possessing suspected stolen goods, for which you were sentenced to an aggregate 14 days’ imprisonment concurrent with the other sentences.
(iv)you were convicted of dishonestly receiving stolen goods, burglary, theft from a shop (shopsteal), intentionally damaging property, and theft, for which you were sentenced to an aggregate of eight months’ imprisonment, which was the base sentence. The effective total State term imposed was one year and two months, with a non-parole period of eight months.
(v)you were convicted of dealing with property suspected of being the proceeds of crime, and sentenced to one month’s imprisonment, concurrent with the other State sentence.
(vi)you were convicted of three charges of intentionally damaging property, theft from shop (shopsteal), unlawful assault, and committing an indictable offence whilst on bail, and sentenced to an aggregate four months’ imprisonment. The period to be served part concurrently was two months.
15 In relation to offences in South Australia, your record would indicate that over the period from 14 December 2005 through to 21 February 2012 you were convicted of a number of offences, mainly at Mount Barker Magistrates’ Court, but also on one occasion at the Adelaide Magistrates’ Court and one occasion at the District Court of South Australia. These offences involved a number of driving offences, but also involved procuring the use of a vehicle by dishonest misrepresentation, being unlawfully on premises, dishonestly taking property without consent, possessing a firearm without a licence, discharging a firearm to cause injury or damage to property, and failure to store ammunition in a locked container.
Orders sought
16 Counsel for the prosecution sought orders in relation to the disposal of the cartridge ammunition and the conducted energy device (the Taser). Such orders were not opposed.
Victim impact statement
17 Ms Cheryl Taylor, the complainant in relation to Charge 3 on the indictment, declared a victim impact statement on 28 April 2020. She indicated that she did not require such statement to be read aloud in court. Seemingly, such document was not tendered at the time of the plea and I direct that such statement be tendered and marked as exhibit 4.
18 In that statement Ms Taylor notes that she was confronted by a man coming out of the maze with a garbage bag full of jewellery and a crowbar, causing her to go into shock, freeze, and become scared. In particular she wondered about her parents being okay, because they live right next door to the shop.
19 She describes how you began to yell at her, and the last thought that crossed her mind was that you were going to shoot her, because that was the last thing you said to her. She describes how her heart was racing, knowing that she could not out-run a bullet. She describes how you began running towards her with the crowbar raised in your hand, causing her to run. She ultimately believed that once you knew that you could not catch her, you got into your car and left. At that time she did not know whether you were going to chase her down in your car, and did not know what to do or think.
Your education, employment and social background
20 Your counsel tendered the following material:
(a)A document headed ‘Outline of submissions on plea’ (exhibit A), and
(b)A report from the consultant psychologist Mr Ian H Mackinnon dated 24 May 2020 (exhibit B).
21 Partly based on various submissions made by your counsel, and partly from the material to which reference has just been made, I note the following:
· You are 32 years old, having been born on 23 March 1988 and was 31 years old at the time of the offending.
· You informed the psychologist, Mr Mackinnon, that you have a bit of “Aboriginal bloodline” but did not claim to be Aboriginal.
· You were initially raised by your single mother in the Hamilton area until you were four years old, at which time your mother died from natural causes. Although you had extended family relatives in the Hamilton area, none were willing or able to take care of you.
· Subsequently, you were made a ward of the State and placed in “at least fifteen different foster homes all over Victoria, South Australia, New South Wales” from the age of four to twelve.
· You had a half-sister (to your mother) who was also placed in foster care for six weeks, but you were soon separated when she was placed with her father and stepmother.
· When you were about twelve years old your biological father was located in South Australia and you were formally placed with him. According to you, this arrangement quickly “went downhill ... My dad was a drug addict so I went into foster care in South Australia.”
· In particular, you informed Mr Mackinnon that:
“I didn’t know what was going on as a kid. I was dealt with harshly a lot of the time… Quite a few foster situations were abusive, only two were safe. All under one year with each foster family. So school was disrupted over and over, I had no friends… I’ve been back in contact with my half-sister over the last three years. She lives in Mildura.
...
I spent a lot of my childhood growing up on the streets. Teenage years, I started running away onto the streets. Got locked up in Juvee in South Australia, in secure welfare.”
· You attended multiple schools in Victoria, South Australia and New South Wales, and never completed any one year. Ultimately you did not finish Year 8, leaving school at age 15. You informed Mr Mackinnon that you can read and write, taught largely by a lot of reading. On leaving school you did casual work with Jim’s Mowing, and since your early twenties have done concreting, labouring and fishing work.
· Prior to being remanded in custody you were working in a winery under a government incentive apprenticeship, and did this for about 12 weeks before being remanded. You described it as the most stable work you have ever done.
· You became involved with your current partner, Jasmine, about eighteen months ago after being released from prison. Prior to your current remand you and your partner were renting a house in Irymple, near Mildura. Jasmine has three children, aged 5, 3 and 2 years old, in her custody, and they currently reside in Renmark, South Australia, and sometimes stay with a friend in Mildura. You described to Mr Mackinnon that although none of the kids are your “own”, you are quite attached to Jasmine and her three kids, and it is what you described as the first real closeness you have had, although you have had other female relationships, but nothing that compares to this current relationship.
· You suffered a broken femur in a motor vehicle accident when you were 25, and have a history of a recurring hernia that first developed when you were working on fishing trawlers and “lifting heavy stuff too much”.
· You informed Mr Mackinnon that you do not have any history of serious head injuries, ongoing psychological or psychiatric treatment, or suicidal and/or self-harming behaviour.
· You did inform Mr Mackinnon that you had previously attended “for a few sessions” with a counsellor whilst subject to parole, and had been briefly admitted to a hospital psychiatric unit several years ago when you were “in a bit of a psychosis”.
· You commenced smoking cannabis when you were 12 years old and had gone to live with your biological father in South Australia, with your father having supplied you with the cannabis. You also described your father being involved with speed and alcohol, and said there were “no limits”.
· Over the next few years you regularly smoked cannabis and drank alcohol and sometimes used amphetamine. From your late teens to your mid‑20s you were an injecting speed user, and when aged 27 years old you regularly injected ice for a few months before going to prison. On occasions you also used cocaine, ecstasy, benzodiazepines and ‘magic mushrooms’.
· You first used opiates when they were prescribed to you after you were injured in a motor bike accident when 25 years old, and subsequently you used illicit opiates for a few months. However, this eventually led you to use Suboxone, “which helped me. I’ve been on Suboxone for five or six years now. It helped me get off drugs.”
· You informed Mr Mackinnon that you are currently being prescribed Suboxone, and that since being remanded six months ago you have remained at the MRC. During 2019 to early 2020 you received several visits from your partner, and completed rehabilitative programs that included relaxation techniques and anger management seminars.
· When the COVID‑19 crisis struck you had been unable to complete rehabilitative programs, but you are working in the Metal Industries program and have been classified as an Essential Working Prisoner (EWP).
· You are permitted to make two Skype calls to your partner every week.
· On your eventual release from prison, you told Mr Mackinnon that you hope to return to reside with your partner.
The evidence of Mr Ian MacKinnon
22 Mr MacKinnon assessed you via video link from his Melbourne office to the Metropolitan Remand Centre on 7 May 2020. Mr MacKinnon obtained a full history. He diagnosed you to be suffering from symptoms that met the clinical criteria for Post-Traumatic Stress Disorder of moderate intensity.
23 Mr MacKinnon further stated that symptoms of such condition may include anxiety, depression, avoidance behaviour, intense fears of abandonment and personal rejection, flashbacks, nightmares, paranoia and mistrust, identity disturbance and confusion, emotional lability, sensitivity to environment cues and triggers, reliving and rumination, intrusive thoughts and low frustration tolerance, chronic interpersonal difficulties and management problems, destructive and self-destructive impulses and substance abuse – although Mr MacKinnon thought your substance abuse was in partial remission at the time of interview.
24 Mr MacKinnon was also of the opinion that the primary antecedents to your Post-Traumatic Stress Disorder appeared to have been the multiple developmental traumas you endured after losing your mother and then suffering a childhood and adolescence marked by ever-changing foster placements, a lack of secure and enduring significant emotional bonds and entirely disappointing and damaging unification with your father and so on. Your childhood, according to Mr MacKinnon, was a chaotic and confusing period for you and your memory of what happened then is now, understandably, jumbled, confused and partially repressed.
25 In addition to suffering from Chronic Post-Traumatic Stress Disorder, Mr MacKinnon was also of the opinion that you now present with many of the symptoms associated with Borderline Personality Disorder, including intense fear of abandonment and rejection, a poor and confused sense of identity and self-interpersonal boundary issues, chronic feelings of loneliness and emptiness, substance abuse and so on.
26 Mr MacKinnon notes that he was impressed by you as an individual who has potential to ameliorate many of your problematic traits if your living circumstances can be stabilised in an appropriate context – in this sense, you do not appear to be laboured with an entrenched Personality Disorder.
27 During the course of the interview, Mr MacKinnon records you as saying:
“If I could take it back, I would. Coming from such a small area, the harm I caused…But everything was returned so that’s one glimmer of hope. I still feel horrible about it but knowing they got their stuff back, I feel a bit better about it. After I did it, I couldn’t explain why I’d done it. I didn’t even know what I was going to do with everything. I held onto it all for weeks until they arrested me. I’ve self-sabotaged myself for years. My life in 2019 was the best I’d ever known. I don’t understand it myself. I let Jasmine and the kids down badly. Jasmine was shocked.” (see page of the report)
28 Mr MacKinnon also expressed the opinion that your Post-Traumatic Stress Disorder made a very significant contribution to your offending by degrading your ability to reason and make sound judgement, elevating your impulsivity, lowering your powers of consequential thinking, lowering your frustration-tolerance threshold and degrading your ability to maintain normal community moral standards.
29 Mr MacKinnon considered that you committed the offences for financial gain, as you were in financial dire straits at the time of the offending, and you did not wish to risk losing the relationship with Jasmine.
Matters relied on by your counsel in mitigation of sentence
30 Your counsel submitted that, on your instructions, you had committed the offences as a result of money worries – this is consistent with the opinion of Mr MacKinnon. Again, on instructions, seemingly, you told your counsel that the money worries were a consequence of you spending on cigarettes and alcohol. At the time of the offending, you drove your old car to the crime scenes late at night and recalled being extremely intoxicated.
31 Rather than listing a variety of matters, your counsel spoke in general terms as to what matters he submitted would be relevant in forming a relevant sentence. It is convenient to also note that counsel for the prosecution relied on a further document headed “Outline of Prosecution Submission on Sentence” which, due to oversight, was not tendered. I direct that such document be tendered and marked as exhibit 4.
32 Your counsel submitted:
(a)you pleaded guilty to the various offences on the Indictment at the earliest possible time. As I have already recorded, counsel for the prosecution accepts that the pleas of guilty were made at the earliest possible time. In such circumstances, I do accept that your pleas of guilty have a significant utilitarian effect, as the time and cost of a trial is avoided, as is made clear by Phillips v R [2012] VSCA 140 at [36]. Furthermore, and importantly, a plea of guilty to the offences obviates the need for the complainant and author of the Victim Impact Statement – Ms Cheryl Taylor – to come to court and give evidence at a trial.
It is always a question for the sentencing judge whether remorse or willingness to facilitate the course of justice and acceptance of responsibility are to be inferred from a plea of guilty (see again Phillips v R (op cit) at [96]. I do accept that your early pleas of guilty do demonstrate to some extent your willingness to facilitate the course of justice and the acceptance of responsibility. I accept that this was demonstrated by your actions shortly after you were arrested.
When you were initially interviewed by police on 14 November 2019, you denied any wrongdoing, but the following day you advised police where the jewellery you had stolen was situated and participated in a second voluntary interview, wherein you made various admissions, particularly in relation to the theft of the jewellery (Charge 2), and the threat to Ms Taylor to inflict serious injury on her.
Furthermore, I note the comments made by you, recorded by Mr MacKinnon, which I have quoted earlier in these reasons, indicate that you do have some insight as to the harm you caused both to the subjects of your burglaries and thefts, but also Jasmine and your family;
(b)your counsel submitted to the Court that the “Verdins’” issues are not paramount in this matter”. Such a reference, of course, was to the well-known decision of R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269. Verdins held that “impaired mental functioning, whether temporary or permanent”, is relevant to sentencing in at least one or more of the following six ways –
(i)the condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective;
(ii)the condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served;
(iii)whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender; and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence, or both;
(iv)whether specific deterrence should be moderated or eliminated as a sentencing consideration, likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence, or both;
(v)the existence of the condition at the time of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health;
(vi)where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.
Your counsel submitted that based on the evidence of the consultant psychologist, Mr MacKinnon, who diagnosed you with longstanding Post-Traumatic Stress Disorder, may give rise to a “small degree of mitigation”. As I understood this submission, it would appear that your counsel is relying on principle one and the suggestion that the Post-Traumatic Stress Disorder identified by Mr MacKinnon made a:
“… very significant contribution to [your] offending by degrading [your] ability to reason and make sound judgement elevating [your] impulsivity, lowering [your] powers of consequential thinking, lowering [your] frustration tolerance threshold and degrading [your] ability to maintain normal community moral standards.”
I do stress that it was not clear from counsel’s submissions if reliance was ultimately placed on a Verdins’ principle, and if so, to what extent. As counsel for the prosecution points out, mere evidence that an offender has a mental illness is not enough – it is necessary for there to be careful exploration on how the illness may have affected the offender’s behaviour. Reference was made to Director of Public Prosecutions (Vic) v Weidlich [2008] VSCA 203 at paragraph [17]; Director of Public Prosecutions (DPP) v Gerrard (2011) 211 A Crim R 171 at paragraph [39].
I also refer to the matter of Charles v R (2011) 34 VR 41, and in particular paragraph [162], where Robson AJA stated, (with Reidlich and Harper JJA agreeing) that:
“The following principles may be discerned from these authorities when dealing with the establishment of a link between a mental condition and the offending conduct.
1.The Verdins’ principles are and should be regarded as exceptional.
2.The onus lies on the offender to establish the facts to enliven the Verdins’ principles on the balance of probabilities as a mitigating factor.
3. Cogent evidence, normally in the form of an expert opinion, is ordinarily necessary if the principles in Verdins are to be enlivened.
4. It is always necessary to consider how the particular condition affected the mental functioning of the offender at the time of the offence and how it is likely to affect him or her in the future.
5. The offender must establish that the offender’s disability had the effect of impairing the offender’s ability to exercise appropriate judgment, or impairing the offender’s ability to make calm and rational choices or to think clearly at the time of the offence.
6. Verdins has no application in respect of a mental condition postulated to have existed at the time of the offending unless the condition relied upon can be seen to have some ‘realistic connection’ with the offending; or ‘caused or contributed’ to the offending; or is ‘causally linked’ to the offending.”
(Footnotes omitted.)
I accept that your childhood was tragic, involving your mother dying when you were a small child and then, as your counsel describes it, “a dreadful experience in State care mainly in Victoria and South Australia”, I have already referred to the history given by you to Mr MacKinnon.
Although I accept that you suffered from a mental illness at the time of the offending, the relationship between that mental illness and the contribution to your offending is, on the evidence, tenuous. In this respect, I note that the offending was not spontaneous, but rather involved aspects of premeditation, suggesting, as counsel for the prosecution submits, that you were still capable of thinking relatively clearly and rationally at the time the offending occurred. Again, as counsel for the prosecution notes, Mr MacKinnon effectively suggested that your offending represented a conscious choice in response to becoming overwhelmed with responsibilities.
After a consideration of all of the evidence, I am satisfied you have discharged your onus in relation to principle one and your moral culpability is correspondingly reduced to some extent as a result of your impaired mental functioning. I do not accept, on the evidence before me, that principles two, three, four, five or six have any relevance;
(c)Your counsel made no direct submission in relation to whether there should be any mitigation of sentence by reason of COVID-19 impacting on your period of imprisonment, and during your plea the Court raised this issue with the parties. Of course, it is to be noted that based on the evidence of Mr MacKinnon, you have been unable to complete rehabilitative programs, but you are in the relatively fortunate position of being classified as an essential working prisoner, which qualifies you to have less lockdown time. Furthermore, you are able to make two Skype calls to your partner every week (in distinction to her visiting prior to the onset of the virus);
(d)Counsel for the prosecution submitted, correctly in my view, that the impact of the COVID-19 Pandemic is causing additional stress and concern for prisoners and their families, however the extent to which that may be taken into account is to be resolved on the facts of any individual case.
Reference was made to Brown (aka Davis) v R [2020] VSCA 60 at paragraph [48] and Sazimanoska v R [2020] VSCA 66 at paragraph [48].
Furthermore, counsel submitted that the risk of contracting COVID-19 within prison may be a source of anxiety for an offender, which makes prison more burdensome, though this is more significant for offenders who are older or otherwise at higher risk from COVID-19 (reference was made to R v Maddox [2020] VSC 145). Counsel for the prosecution accepted that it is clear that the Pandemic does have operational impact on prisons – including the normal current lack of face-to-face visits and restrictions on various programs (see also the report from Mr MacKinnon at page 4). The constantly evolving nature and restrictions and the approach by Corrections Victoria to dealing with the risk involved in the spread of the virus provided a limited basis for any significant discount in your case.
I do consider that the hardship you are and will continue to experience as a result of the COVID-19 Pandemic is a factor to be taken into account in mitigation of your sentence. In particular, I refer to:
(i)your anxiety and concern about your time in custody, given the COVID-19 Pandemic where, obviously enough, maintaining social distancing is far more difficult;
(ii)contact with family and friends is far more limited and is permitted by Skype rather than attendance at the prison;
(iii)various programs have either ceased or been significantly reduced as a result of COVID-19.
Conclusion
33 You have pleaded guilty to three charges of burglary, three charges of theft and one charge of threatening to inflict serious injury. Each of these charges is serious, bearing in mind that the maximum penalty for burglary and theft is ten years’ imprisonment and that the maximum penalty for a threat to inflict serious injury is five years’ imprisonment.
34 Charges 4, 5, 6 and 7, representing two of the burglaries and two of the associated thefts, occurred over the period 23 August 2019 to 25 August 2019, at premises respectfully located at 499 Morpung Avenue in Irymple and 555 Morpung Avenue, Irymple.
35 That spate of offending involved the theft of a motorcycle and also a Stihl chainsaw, and I have been informed that the Stihl chainsaw has been returned to its rightful owners.
36 Charges 1, 2 and 3 deal with a burglary at 516 Cureton Avenue, Nichols Point and resultant theft from the Woodsies Gem Shop, such theft involving jewellery valued at $134,284. It was also during this time that Ms Cheryl Taylor received a phone call from a security alarm company, notifying her that the alarm sensor in the shop had been tripped. She walked along Morpung Avenue towards the shop and heard noises coming from that area, when she saw you emerging from a tree bush, holding your right hand over your head, a metal bar motioning, as if to strike, and the garbage bag in your left hand.
37 You took five or six steps towards her, which made her feel threatened and you shouted at her “I’ve got a gun don’t’ ring the cops or I’ll shoot you”, and you said words “I’ll shoot you” twice in an aggressive and threatening manner.
38 Although the confrontation only lasted a few seconds, one only has to read the Victim Impact Statement of Cheryl Taylor to understand the fear she experienced as a result of such confrontation. It is not to the point that you did not have any type of gun with you, given that you made her believe that you did, and were willing to use it.
39 While I accept that the planning for each burglary and associated theft was not all that sophisticated, it did involve a degree of planning and was not spontaneous or spur of the moment. In particular, in relation to the October offending, you wore gloves, a hooded jumper, and disguised yourself with a mouth covering in order to avoid detection. As I have already noted, you were also armed with a metal bar and carrying a garbage bag, no doubt for stolen goods. You cut through a fence to steal the motorcycle and in relation to the October offending, you caused damage in relation to – the front door, which was smashed – a roller door which was dented – cutting a hole in a fence – smashing the rear door, which gave you entry into the shop where the jewels were situated.
40 Counsel for the prosecution submitted that the objective gravity of your offending in relation to the charges on the Indictment are mid-range. Taking all the evidence into account I accept that such characterisation is correct.
41 Furthermore, your subject offending must be seen in the context of your previous offending and in particular, the offending for which you were sentenced for on 23 September 2014 and more recently on 26 March 2015 at the Warrnambool County Court. On each of these occasions, offending included burglaries and thefts.
42 Your counsel did not make any express submissions on the prospects of your rehabilitation. However, I refer to exhibit “A” – being the outline of submissions on plea, and your counsel notes you hope to return to the Mildura area and resume family life with Jasmine and children upon your release. Furthermore, he notes that at the time of your arrest you had been employed at the “Best Bottlers” plant, a factory that contracts to wineries in the region and earning about $700 per week. Your counsel also noted, consistent with what you told the psychologist Mr MacKinnon, that you had “left your earlier illegal drug use problems behind you” and have been prescribed Suboxone for about five years for treatment of your dug addiction.
43 Counsel for the prosecution submits that if one accepted that you were intoxicated at the time of the offending, it is not one of those occasions of exceptional circumstances, where it can be used as a mitigatory matter. Although acknowledging there would appear to be some positive aspects pertaining to your future rehabilitation – they being your history of employment, the apparent ongoing support of your partner and your apparent willingness to engage in ongoing psychological treatment (see Ellis v R (op cit) at paragraph [320]), Counsel for the prosecution ultimately submitted that your rehabilitation prospects are “positive but guarded”.
44 I take all these matters into account and come to the view that your prospects of rehabilitation are not hopeless, but “guarded” – particularly so because of your recent offending was within about 18 months of being paroled from imprisonment in relation to the sentence in 2015.
45 Furthermore, I consider your moral culpability to be high, although tempered to some extent by the Verdins first limb issue, which was discussed earlier in these reasons.
46 I intend to convict you of each of the indictable charges and sentence you to periods of imprisonment. In relation to the burglary followed by the theft, at any one of the premises – I consider that there should be concurrency between each charge of burglary and the consequential theft. I am conscious of the concept of double punishment and the principle of totality in the overall sentence.
47 I consider the relevant sentencing factors to be general deterrence, denunciation and some degree of just punishment. Furthermore, because of your past record of relatively recent times, I am also of the view that specific deterrence should play a role in the sentencing matrix.
48 In relation to the two uplifted summary matters, I consider them to be nowhere as serious as the matters on the Indictment. In relation to the uplifted Summary Charge 8 – possessing cartridge ammunition while not a holder of a licence – I intend to convict you and fine you a sum of money. In this respect, there is no suggestion that you have a gun relevant to that cartridge ammunition. In relation to uplifted Summary Charge 10 – that is possessing a prohibited weapon without exemption – the Taser – I intend to convict and sentence you to a modest period of imprisonment.
49 I also take into account the various mitigating matters to which I have referred, not least your early plea of guilty and assistance to police in returning the various stolen goods – particularly the valuable jewellery.
50 Please be upstanding.
On Indictment No. K92155768.1:
(i)in relation to Charge 1, you are convicted and sentenced to a period of imprisonment of three years; This is the base sentence.
(ii)in relation to Charge 2, you are convicted and sentenced to a period of imprisonment of three years, such sentence to be concurrent with all other sentences imposed;
(iii)in relation to Charge 3, you are convicted and sentenced to a period of imprisonment of eight months;
(iv)in relation to Charge 4, you are convicted and sentenced to a period of imprisonment of 24 months;
(v)in relation to Charge 5, you are convicted and sentenced to a period of imprisonment of 24 months, such sentence to be served concurrently with other sentences imposed;
(vi)in relation to Charge 6, you are convicted and sentenced to a period of imprisonment of 24 months;
(vii)in relation to Charge 7, you are convicted and sentenced to a period of imprisonment 24 months, such sentence to be served concurrently with other sentences imposed;
(viii)in relation to the uplifted Summary Charge 8, you are convicted and sentenced to a fine of $200, and in relation to the uplifted Summary Charge 10, you are convicted and sentenced to a period of imprisonment of six months.
51 I declare that that five months in relation to Charge 3, 12 months of the sentence imposed in relation to Charge 4, 12 months of the sentence imposed in relation to Charge 6 and three months of the sentence imposed in relation to the uplifted Summary Charge 10 be cumulated with each other and the sentence in relation to Charge 1.
52 The total effective sentence is five years, eight months, with a non-parole period of three years, six months.
53 I declare that you have served by way of pre-sentence detention in respect of these offences 228 days and such days should be administratively deducted from this sentence.
54 I grant the Order, sought in relation to the disposal of the cartridge ammunition and the Taser.
55 Pursuant to s6AAA of the Sentencing Act 1991, I declare that save for your pleas of guilty I would have sentenced you to seven and a half years’ imprisonment with a non-parole period of five years.
---
8
0