Director of Public Prosecutions v Findlay

[2018] VCC 667

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR 17-01504

DIRECTOR OF PUBLIC PROSECUTIONS

v

NATHAN FINDLAY

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	10 May 2018
CASE MAY BE CITED AS:	DPP v Findlay
MEDIUM NEUTRAL CITATION:	[2018] VCC 667

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J. Warren	Office of Public Prosecutions
For the Accused	Mr S. Kenny	Victoria Legal Aid

HIS HONOUR:

1Nathan Findlay, you have pleaded guilty to one charge of aggravated burglary.  That crime carries a maximum penalty of 25 years' imprisonment.

2You are now 42 years of age.  You pleading guilty at a late time.  You pleaded guilty when a covert tape was produced which you obviously could not have defended yourself against.  In other words, you basically pleaded because you had to.

3In this situation you must get the use of the utilitarian benefit of that plea of guilty.  I have very little confidence that there is any remorse associated with this matter, but be that as it may. You have vehemently denied this offending all the way up until that covert tape was produced.

4To put the summary of the offending into context, you, as I said, are now 42 years of age.  You have hundreds of priors for dishonesty.  You have been gaoled, on my calculation, on something over 40 different occasions.  Whenever you go to gaol you are released and you reoffend again at a rapid rate.  Indeed, you told a psychiatrist that there were many charges or many crimes that you have committed that you have never been charged for.  I accept that that is the case.  You are clearly, I think, institutionalised and it is a very unfortunate set of circumstances but there is not much I can do about that.

5On 4 September 2014 you were sentenced in Latrobe Valley Magistrates' Court to 211 days aggregate with pre-sentence detention of 121 days.  You were then to be released on a community corrections order.

6On 27 November 2014 you were sentenced in Latrobe Valley Magistrates' Court for various property offences and received an 18 month wholly suspended sentence.  You were sentenced for further matters on that day and received a four month wholly suspended sentence.  So by the late November 2014 you were subject to a community corrections order upon release and you were also subject to suspended sentences.  You were released on 3 December 2014 after having served that 211 days.

7The offending that I am about to describe occurred obviously within about six weeks of you being released.  In this situation you have pleaded guilty to the charge of aggravated burglary with persons present and it is on the basis of an intention to steal.  I have to be careful in this set of circumstances to remember that the intent applicable to you is one of stealing, not one of assault.  In this given situation that creates a bit of an artificial set of circumstances but I can only sentence you on what the Crown have been able to prove.

8The offending came about as follows.  You, as I said, are 42 years of age.  You were previously known as the name of Anthony Bennett and you legally changed that name to Nathan Findlay some years ago.  That explains why some people still refer to you as Tony.

9The victims or the occupants of the house that was burgled were an elderly married couple.  They were living on a rural property on the Strzelecki Highway in Delburn.  That was Steven Koss, known as Steve, who was at the time of the incident 79, and his wife, Carmen, who was 75.  They lived alone.

10Around the time of this incident you were associating with a person by the name of Dean Mack.  Police suspect, and I as I would understand it, very much still suspect Mack as being the principal offender in relation to this matter but the investigation in regard to him remains ongoing.

11In the early hours of Sunday, 11 January 2015 Mrs Koss got up from bed to go to the toilet.  When she returned Mr Koss got up to go to the bathroom.  When he returned to bed Mrs Koss saw a light shining on this face.  It looked like a small torchlight coming from outside.  She commented to him that there was a light on his face.  He got up to check but soon came back to bed and told her that there was nothing wrong and to go back to sleep.  About half an hour later Mrs Koss woke up to a male saying, "It's a hold-up".  Police believe that that male was Mr Mack, the reality, I would think.

12He was standing on the right side of the bed next to Mr Koss.  He was wearing a balaclava, a long sleeved black top, thick rubbery red gloves and he was holding an axe in his right hand.  He was talking to another male in the house, saying things like, "Get the money.  Where's the money?"  I have to sentence on the basis that that second person was in fact not you.  The male believed to be Mr Mack proceeded to assault Mr Koss, striking him to the face with the axe.  He put a pillow over Mrs Koss' face so she was unable to see.  She heard her husband being hit several more times with the axe and then heard him being pushed off the bed.  She looked out from under the pillow at one point and could see blood on the bed.  There was a lot of blood on her hands, clothes and on the bed.  She saw Mr Koss on the floor being hit with the axe and kicked by the same male.  He was yelling at Mr Koss saying, "I want to kill you, dump you".  She heard his head being hit on the brick wall.  She heard the male say, "Don't talk, I'm going to kill you".

13During the course of that assault the male committing the assault was asking the second male in the house whether he had found anything.  That male said he had only found jewellery.  Mrs Koss says the one in the bedroom doing the assaulting was the one in charge.  He told Mrs Koss to turn over.  He then told the second male to get rope and tape and the truck.  He told Mr Koss, "I'm going to kill you for what you've done.  We're taking you away and I'll dump you".  Mr Koss at this stage was not responding, just wincing in pain.  He asked Mrs Koss where the money and the gold was.  She told him there was some gold on the pool table.  Then both victims were then tied up with duct tape by the male in the bedroom.

14At some point bolt cutters were taken from Mr Koss' shed and were used to cut the padlock on the gate at the top of the driveway.  While the offenders were in the house it was ransacked.  They cut the phone lines and stole approximately $16,000 in cash and various jewellery items.  The male in the bedroom told
Mrs Koss to count to 500 before moving or he would be waiting for them and would shoot them.  They then left.  She was able to free herself from the duct tape and left the house to seek assistance as the phone line had been cut.  She walked to the neighbour's property.  In that state 200 metres away across the Strzelecki Highway.  She raised the alarm with neighbours who attended the property and found Mr Koss on the bedroom floor with his hands bound in front of him.

15Police and ambulance arrived.  Mr Koss suffered multiple injuries and was placed in an induced coma. He suffered complications due to his level of injuries, his age and existing medical conditions.  On the next day the family were advised he was unlikely to survive.  He did, however, survive and spent long periods of time in rehabilitation.  I will be referring to the victim impact statement of his wife in a moment.

16Approximately a year later you attended at the Morwell Police Station and were interviewed.  You deny any involvement in the incident.  You said you had never been to the property.  Later, or a few days later police executed search warrants at two addresses used by you, both in Churchill.  You were arrested.  At an address in Churchill occupied, as I understand it, by Ms Chapman, who is your, in one sense, adopted mother, police located a number of items of jewellery.  Mrs Koss has identified a number of those items as hers.  You were interviewed again on 27 January and you maintained your denials of any involvement in the offending.

17On 29 January whilst, as I understand it, you were in custody, your wife spoke to police and told them that you, on 10 January, at around lunch time, the principal offender and his partner had come to the house and asked to borrow your car.  You refused to lend it, however, agreed to give them a lift, which you did, and returned home after approximately 15 minutes.  She said that some time after 11 January she had a conversation with you about the offence that occurred in Delburn.  During that conversation you told her that, she says, that the principal offender and the unknown male came back to the house during the night, that you went in the car with them, that his partner was driving and that you went to a house in the middle of nowhere and his partner and an unknown male - sorry, he, that is the principal offender, his partner and unknown male went inside.  One of the three came out to the car and told you to go inside and grab a bag, which you did, and she says that you told her you never saw any people in the house.

18On 29 January Ms Chapman also attended the Morwell Police Station.  She described you as her adoptive son and she said that some time just before Christmas in 2015, this was some ten months after the event, you saw on the evening news the incident at the Delburn property and she said that you became visibly upset and started to cry.  You told her, "Mum, I didn't do this but I was there.  I won't mention his name but it's obvious who it is, and he lost the plot".  She further stated around Christmas 2015 you came to her house and had an opal gold ring with you.  You asked her if she would wear the ring.  She told you she would and put the ring on.  When you left she took the ring off and put it in her jewellery box.  That ring belonged to Mrs Koss.  You were fully aware by that stage as to what had happened to that family and the consequences of what had been done.  Hardly smacks of remorse.

19On 1 February 2016 you, in custody, had a further conversation with police.  Unbeknownst to you that conversation was recorded.  You gave pretty much the same version of events to the police as your wife had told them a couple of days earlier.  That version of events places you there at that address and has you in a common purpose situation with the actual participants.  It must be said that the axe and the bolt cutters and the gloves would appear to have come from the shed of Mr Koss.  The weaponry cannot be sheeted home to you and the weapon aspect of it has been deleted from the charge that you pleaded to.

20The Crown cannot disprove in this situation the version of events that you gave to the police in that covert tape.  Whether it is actually true is anybody's guess but it remains the basis upon which I have to sentence you.  I make it very clear that were I sentencing you for what occurred inside that house in a direct sense the sentence that I impose would be far, far greater than the one I feel I can only impose at this point in time.

21You must be sentenced for your intent and on the description you gave of believing that you were going there for a "drug rip", it can only be on that basis.  In terms of the severity or the seriousness of the offending, if you understood it to be a drug rip you would not have anticipated that there would be two elderly, totally defenceless people in there and that the real purpose of your co-accused was, I would have thought, because of inside information to take personal possessions that he was already aware were there.

22The crime of aggravated burglary is a serious one and, as I have said, carries 25 years' imprisonment.  In circumstances where you cannot be held responsible for the actual gross violence that took place within that house, you are sentenced for the fact that aggravated burglary with persons present always has a risk that when people are there that the risk of violence is great.  That risk calls for the application of general deterrence.  However, as I have indicated during the course of the plea, I feel constrained in how far that can be taken.

23One of the consequences of an aggravated burglary that you participated in is described by Mrs Koss in her victim impact statement.  She said, "My husband and I did everything together.  We cooked, we gardened together, we are each other's best friend.  Since this happened we cannot do any of those things.  My husband needs 24 hour care.  This is due to the injuries he sustained.  I'm left with only the outside shell of my husband.  I will not put my husband into a nursing home.  We've been married 57 years.  My home is now locked up as I am always scared that someone will break in and hurt us again.  We are prisoners in our own home.  No one comes and sees us any more.  Life is very lonely.  I knit blankets for homeless people which keeps my hands busy at night time.  This is one of my small pleasures left to me in my life now".

24That is what the consequences of all this were.  As I have said, I am very alert to the basis upon which I have to sentence you.  Obviously in this situation with such serious offending and your criminal history significant gaol is the inevitable disposition.  The offending has to be regarded as serious.  It calls for the application of general deterrence and in your situation, I suspect, specific deterrence is a waste of time.  It calls for denunciation, appropriate punishment and again, bearing in mind your criminal history, protection of the public.

25Your counsel put matters on your behalf.  Subsequent to this offending you committed dozens more burglaries before your apprehension.  It seems clear from the material here that a very significant number of those burglaries were committed with the principal offender in this matter.  You were fully aware of what that person had done within those premises on the material that you provided to the police yourself and yet you continued to operate with him as a cohort in your criminal enterprises.  It is very difficult indeed to accept that you take any responsibility in your own mind or care what happened on the night back in January.

26On 30 October 2017 for various matters including 49 burglaries or attempted burglaries, Judge Mason in this court gave you a total effective sentence of four years and six months with a non-parole period of three years and three months.  You have now done something in the order of 838 days in regard to that sentence.  You have no pre-sentence detention for the matter that I have to sentence you for.

27Tendered on your behalf were a report from Mr Wiseman, Mr Hartman and Carla Lechner, a psychologist.  Mr Hartman is a counsellor and Mr Wiseman, from recollection, is a psychiatrist.

28Judge Mason was shown that same material and I think he summarised it in fairly simple terms.  He said, "Your early life experience is very tragic.  I'll not embarrass you by descending into detail because you were - there were parts which cause you distress.  Greater detail is set out comprehensively in the reports of Dr David Wiesman, consultant psychiatrist, Carla Lechner, consultant psychologist, and your counsellor, David Hartman from Open Place".  I interpolate they are obviously the reports that I have in front of me.”  In basic summary, you began life as an infant, never having any of the essential warmth and benefits of a caring and nurturing family life, became a ward of the State at the age of two or three as a result of alcoholic and dysfunctional parents who could not care for you.  The few times you were in contact with your parents were unhelpful.  Your father was in and out of gaol and he taught you to steal at the age of five.  All the child offending entries record you as being in the car of community welfare services.  The first offences are recorded as being when you were eight.

29Throughout your childhood, and people appreciate, (in my experience these places are very well known to me,) you lived at Allambie, Baltara, Turana, Malmsbury and about a year at St Vincent's Boys Home, which is notorious.  Your childhood was characterised by physical, sexual and emotional abuse and neglect.  It is reported by Ms Lechner that undermined your social and emotional education and vocational development.  She says that you have a strong background of deprivation and says that you fall back into old habits when under stress.  She points out that you have been involved with the Royal Commission into child sex abuse in recent years and points out that you are illiterate and enumerate and have never had employment in the community beyond some truck driving for a friend.  I do not know quite when that was but I see you have got a prior for driving a tow truck without a licence, so that might have been it.

30The offending that he sentenced you for was characterised by choosing soft targets of business and community offices and shops.  He pointed out that you do not appear to target residential or business premises where persons are likely to be present. Which would tend to support your version of events that happened here.

31The agreed situation is that the principles of Verdins are not applicable in your situation.  You suffer from post-traumatic stress disorder and I accept that you suffer from major depressive disorder.  It is hard to see how post-traumatic stress disorder, which usually relates as a trigger to violent or aggressive conduct, could cause a person to over years be a persistent professional burglar, which is clearly what you are.

32You are not addicted to alcohol, you are not addicted to drugs and the purpose of your burgling is simply to obtain money.  As I indicated, whenever released from prison that is immediately what you seem to resort to.  You have no family of origin but you do have a wife and on what is described to me as two children and your counsel said that that is an incentive for you not to reoffend when you get out.  Clearly, that has been an incentive to you or should have been for something in the order of 20 years.

33I take the view that in overall circumstances here how this has all unfolded, your vehement denials, the contents of your record of interview where you endeavoured to play the police "on the bit", indicate that you are simply a professional criminal.  I am well aware of decisions such as Bugmy and the like and how difficult it is for people with such backgrounds to overcome them, but yours is not a get drunk in the pub and get into fights.  Yours is the life of a professional burglar.  They are premeditated, considered and you have taken every chance you could to avoid detection.

34I do feel sympathy for any person who has come from a background such as that but your counsel indicated and put to me that you are, as is described in one of the reports of Mr Hartman as a forgotten Australian.  I simply say this to you, Mr Findlay.  Mrs Koss will never forget you and I am sure that the hundreds of people that you have stolen from will never forget you either.

35In any event, in circumstances where I am simply confined to what you have actually - the Crown have been able to prove, and I know that you are undergoing a sentence, that principles of totality have to play a part.  Accordingly, on the charge you are sentenced to be imprisoned for a period of three years.  I direct that 15 months of that sentence be served cumulatively on the sentence you are currently undergoing.  Because of the provisions of the Act I direct, pursuant to s.16, I think, I direct that I fix a new non-parole period of 21 months.  That non-parole period to commence from today.

36Section 6AAA is difficult because had your run a trial the circumstances about the non-parole period might have been different but I simply say this to you, that but for your plea of guilty on the charge of aggravated burglary to which you have pleaded guilty, you would have been sentenced to be imprisoned for a period of four years.

37All right, are there any other orders I have got to make?  Does that all make sense?

38MS WARREN:  No, Your Honour.

39MR KENNY:  There was the application for the disposal order yesterday.

40HIS HONOUR:  I signed it.

41MS WARREN:  That was granted, yes.

42HIS HONOUR:  I have already signed that.

43MR KENNY:  You signed it, yes.  Nothing further from me, Your Honour.

44HIS HONOUR:  No, all right.

45MR KENNY:  May it please the court.

46HIS HONOUR:  Yes, all right, you can take him down, thank you.

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