Director of Public Prosecutions v Findlay

[2017] VCC 1618

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-17-00666
AP-17-0753
[1]AP-14-2932

[1] In AP-14-2932 Nathan Findlay is known as Anthony Bennett

DIRECTOR OF PUBLIC PROSECUTIONS

v

NATHAN FINDLAY

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JUDGE:	HIS HONOUR JUDGE MASON
WHERE HELD:	Melbourne
DATE OF HEARING:	13 and 19 September 2017
DATE OF SENTENCE:	30 October 2017
CASE MAY BE CITED AS:	DPP v Findlay
MEDIUM NEUTRAL CITATION:	[2017] VCC 1618

REASONS FOR SENTENCE
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Subject:Plea - sentencing

Catchwords:             Burglary - attempted burglary - theft - commit indictable offence whilst on bail - breach of suspended sentence

Legislation Cited:     Sentencing Act 1991

Cases Cited:

Sentence:4 years and 6 months’ imprisonment, 3 years and 3 months non-parole period

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APPEARANCES:	Counsel	Solicitors
For the DPP on 13.9.17 For the DPP on 19.9.17 For the DPP on 30.10.17	Ms J. McDonnell Ms R. Harper Ms S. Lenthall	Office of Public Prosecutions
For the Accused	Ms O. Trumble	Victoria Legal Aid

Pages 1 - 10

 

 

HIS HONOUR:

1Nathan Findlay, you have pleaded guilty to 43 charges of burglary, 6 charges of attempted burglary and 26 charges of theft. 

2In addition, you have pleaded guilty to one transferred summary charge of committing an indictable offence whilst on bail. 

3The maximum penalty for each of burglary and theft is 10 years' imprisonment.  The maximum penalty for attempted burglary is 5 years' imprisonment.  The maximum penalty for committing an indictable offence whilst on bail is 30 penalty units or 3 months' imprisonment. 

4In addition, you have appealed your sentence in appeal in AP-17-0753, and you are further to be dealt with for your breach of the suspended sentence imposed by me on 14 April 2015 in the Latrobe Valley in appeal AP-14-2932.

5You are now aged 42, having been born on 20 June 1975, and you were 40 at the time of the present offending. 

6You have an extensive criminal record, about which I will go into more detail shortly. 

7The circumstances of your offending are as follows. 

8At the time of the offending, you lived in Churchill in central Gippsland.  During 2015, police investigated you for burglaries committed throughout the Gippsland region.  Police investigations included the use of an optical surveillance device, tracking devices on vehicles, covert recordings, telephone records (including cell tower locations), the Police Air Wing and closed-circuit television from multiple premises. 

9The details of each of the charges are set out in the prosecution summary dated 17 September 2017.  The summary was read in open court by the prosecutor and was tendered as Exhibit A.  I incorporate those details into my sentencing remarks. 

10In essence, your offending encompassed the period between 21 July 2015 and 15 January 2016.  Over that period of nearly six months, you committed 43 burglaries, 6 attempted burglaries and 26 thefts. 

11The burglaries and thefts took place at night or in the early morning when nobody was around.  The premises targeted included small shops, business offices, a childcare centre, an opportunity shop, community workshops, a veterinary practice, cafés, a museum, a sports club and a dance studio. 

12All the items stolen were cash, with the exception of items from a boat at Crawford Marine, represented by Charges 71 and 72. 

13The value of the cash stolen in each case ranged from $15 to $5812.  On 17 occasions the value of the theft was under $1000, with the majority being several hundred dollars.  On six occasions it was between $1000 and $2900 and on one occasion, represented by Charge 74, the amount stolen was $5812 from a real estate company.

14At the time of Charges 71 and 72 you were on bail for other unrelated offences, and this gave rise to summary offence Charge 211, committing an indictable offence whilst on bail. 

15You were arrested and interviewed by police on 27 January 2016.  You denied involvement in any of the offences.  You have remained in custody from that date.  

16The total amount of cash stolen was $18,049.20. 

17As to your co-offender, Mr Mak's matters resolved summarily to 17 burglaries, 9 thefts and an attempted burglary.  A total of $4171 was obtained by yourself and Mr Mak in the matters that you were both involved in.  Mr Mak was sentenced in the Magistrates' Court to 18 months’ imprisonment with a non-parole period of 12 months.  On appeal to the County Court, the sentence was varied to 18 months’ imprisonment with a non-parole period of 10 months. 

18As to the suspended sentence imposed by me on 14 April 2015 in AP-14-2932: this matter was originally before me on appeal against conviction and sentence from the Magistrates' Court where, on 27 November 2014, you had originally been convicted and sentenced to an aggregate sentence of 18 months' imprisonment, wholly suspended, on five charges comprising burglary, theft, intentionally damage property and go equipped to steal

19That offending had taken place on 17 January 2014.  Your appeal was unsuccessful and I re-imposed the same orders that had been made by the Magistrates' Court, effective from 14 April 2015.  You were sentenced to
18 months' imprisonment, wholly suspended for two years.  Three days pre-sentence detention was reckoned as served.  At that date, you were serving a community correction order imposed for other matters and it was reported that you were doing well.

20On 8 March 2017 you were convicted and sentenced at the Magistrates' Court at Moorabbin on charges of burglary, theft and recklessly cause injury.  Those offences were committed on 11 May 2015, just short of one month after I had imposed the suspended sentence on 14 April 2015.  You were arrested on
20 November 2015 and interviewed.  You received a total effective straight sentence from the Magistrates' Court of 18 months' imprisonment with 407 days reckoned as time served.  You have now appealed this sentence, and that is AP-17-0753. 

21The offending of 11 May 2015 was committed whilst you were still subject to the suspended sentence imposed by me on 14 April 2015 and thus breaches the suspended sentence imposed by me on that date.  I note that you have not been charged with that breaching the suspended sentence by these charges. 

22The current matters, being the offences committed on Indictment G10267040 in case number CR-17-00666, also breach the suspended sentence imposed on 14 April 2015.  You have been charged with this breach. 

23I now turn to your personal circumstances. 

24As I noted earlier, you are now 42 years old and at the time of the offending between 21 July 2015 and 15 January 2016 you were aged 40. 

25Again as I noted earlier, you have an extensive criminal history which represents a very tragic life spent almost wholly in institutions.  The offending commences in the Children's Court when you were eight years old. 

26From when you were aged ten, it appears that you have offended virtually every year of your life.  I see exceptions only in 2006 and between 2010 and 2013 when you were in custody following a sentence in May 2010 of 42 months' imprisonment. 

27Overwhelmingly, the offences have involved burglary, theft and other dishonesty offences.  The 30-page record of offending reflects the fact that whenever released from custody, you very soon reoffend. 

28Your early life experience is very tragic.  I will not embarrass you by descending into detail because there are parts which cause you distress.  The greater detail is set out comprehensively in the reports of Dr David Weissman, consultant psychiatrist, Carla Lechner, consultant psychologist and your counsellor, David Hartman from Open Place. 

29In basic summary, you began life as an infant never having any of the essential warmth and benefits of a caring and nurturing family life.  You became a ward of the State at age two to 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 taught you to steal at the age of five. 

30All the child-offending entries record you as being in the care of community welfare services.  Your first offences are recorded as occurring when you were eight.  Throughout your childhood your homes were institutions, including Allambie, Baltara, Turana and the St Vincent’s Boys' Home.

31Ms Lechner reports that your childhood was characterised by physical, sexual and emotional abuse and neglect - all undermining your social, emotional, educational and vocational development.  You have a strong background of deprivation and lack a range of life skills to successfully negotiate life in the community.  As a result, you fall back into old habits when under stress. 

32The last few years have been especially difficult for you in light of the Royal Commission Into Child Sexual Abuse, and this has led to a resurgence of post-trauma symptoms, chronic anxiety and depression at a clinical level. 

33You have stated that stealing is a habit, an addiction.  You are basically illiterate and innumerate and have never had employment in the community beyond some truck-driving for a friend. 

34You have a wife and three children and you do continue to live with them when on your occasional releases from custody. 

35At interview with Ms Lechner you appeared resigned about your fate, saying that you never felt you had control over your life.  In Ms Lechner's opinion, you continue to feel disempowered, alienated and isolated. 

36In mitigation, I take into account the matters urged upon me by your counsel, including:

·    your plea of guilty for its utilitarian effect - it has saved the community both time and money from what may have involved a protracted trial, causing further anxiety to witnesses and victims and it is also evidence of some remorse.

·    your tragic life circumstances and the psychological sequelae that impede your ability to manage a stable life in the community outside penal institutions - it is extremely sad and difficult to imagine a person more institutionalised than you. 

37The offending is mostly characterised by choosing soft targets at business and community offices and shops.  I note that, apart from the Sandringham offences in May 2015, you have not targeted residential or business premises where persons are likely to be present.  The presence of the person in the May 2015 offences appears to have been unintended. 

38The basic purposes for which a court may impose a sentence are punishment, deterrence (both specific and general), rehabilitation, denunciation and the protection of the community.  In sentencing, I must have regard to a range of matters such as the seriousness of the offence, your culpability for it, your personal circumstances and those of the victims. 

39I am required to balance the interest of the community in denouncing criminal conduct with the interest of the community in seeking to ensure that as far as possible, offenders are rehabilitated and reintegrated into society. 

40I note that despite your very difficult childhood, to your great credit you have avoided descending into drug and alcohol disorders.  This is an aspect that should better facilitate your prospects of rehabilitation. 

41In light of the continuing nature of your offending upon each release from custody, however, your prospects of rehabilitation appear very bleak and the primary sentencing considerations at this stage are the protection of the public and specific deterrence. 

42It appears to me, however, that you do have the capacity to lead a different life in the future if you start to accept that you can.  Your offending is very calculated and ultimately unnecessary.  If you conscientiously apply yourself to regular therapeutic counselling, you may eventually break this cycle of offending. 

43This sentence, by its total effective term and balanced concurrency, is designed so as not to be crushing and to give some credit to encourage what rehabilitative prospects there are.  The principle of parsimony must be applied so that you are not punished twice because of past offending. 

44Now, I just mention to counsel that the following orders, taking into account all the various matters and applying concurrency and cumulation, are not uncomplicated, and I will provide you with an unedited copy of these respective pages at the conclusion of my sentencing so that if there are any calculation errors or any other matters you are concerned about, you have the opportunity to consider it carefully and alert my associate if there are any particular issues.  It will be hard to follow simply by writing it down, I suspect.

45As to the appeal AP-17-0753, I note that the burglary involved residential premises where a person was present and the sum stolen was relatively significant at $2070.  Furthermore, the person present was assaulted in the course of attempting to get you out of the house.  This conduct appears to have been an escalation of the usual modus operandi in burglaries.  As I note, it was unexpected, in my view, that a person may have been present. 

46Taking all the circumstances into account, including matters in mitigation, I have arrived at the same conclusion as to appropriate sentence as did the magistrate.  I set aside the orders made in the Moorabbin Magistrates' Court on 8 March 2017 and in their stead I re-impose identical orders, with the two provisos that the time held in custody be amended to 642 days on that matter, not including today, and that the compensation order for the amount of $2070 which was made by the Magistrate will not be re-imposed by me, as following discussion between the parties after the plea the Crown has decided not to press for this order. 

47As to your plea in case number CR-17-00666, on each of the charges of burglary, being Charges 1, 3, 4, 6, 8, 10, 11, 13, 15, 16, 19, 20, 22, 24, 26, 28, 29, 30, 31, 33, 34, 35, 37, 39, 40, 41, 43, 47, 49, 50, 53, 54, 56, 58, 59, 60, 61, 62, 64, 66, 67, 68 and 73, you are convicted and sentenced to 18 months' imprisonment.

48On each of Charges 18, 45, 46, 52, 70 and 75 of attempted burglary, you are convicted and sentenced to 6 months' imprisonment. 

49On the charges of theft, you are convicted and sentenced as follows: 

-    on each of Charges, 5, 7, 9, 12, 17, 21, 23, 27, 32, 36, 42, 44, 48, 55, 57, 63 and 69, where the value of the theft is less than $1000, and on each of Charges 71 and 72, where the items stolen are from a boat, you are convicted and sentenced to 3 months' imprisonment;

-    on each of Charges 2, 14, 25, 38, 51 and 65, where the value of the cash stolen is between $1000 and $2900, you are convicted and sentenced to 6 months' imprisonment;  and

-    on Charge 74, where the value of the cash stolen is $5812, you are convicted and sentenced to 12 months' imprisonment.

50On the transferred summary charge of committing an indictable offence whilst on bail, you are convicted and sentenced to 1 month’s imprisonment. 

51Charge 13 on Indictment G10267040 is the base sentence. 

52I direct that two months of each of the sentences imposed on Charges 8, 20, 22, 30, 37 and 43, two months of each of the sentences imposed on Charges 46 and 75, one month of each of the sentences imposed on Charges 32 and 48, two months of each of the sentences imposed on Charges 14, 25 and 65, and three months of the sentence imposed on Charge 74 be served cumulatively upon the sentence imposed on Charge 13 and upon each other.

53The sentences are otherwise concurrent. 

54The total effective sentence on Indictment G10267040 in CR-17-00666 is 3 years and 9 months imprisonment. 

55I direct that the sentence in appeal AP-17-0753 be served concurrently with that imposed in CR-17-00666. 

56As to the breach of suspended sentence in AP-14-2932, I find the breach proven and, there having been no evidence of any extenuating circumstances, I restore the suspended sentence.  This means that on charges 1, 2, 3, 5 and 8 committed on 17 January 2014 the aggregate sentence of 18 months' imprisonment is wholly restored.  I note that there is pre-sentence detention of 3 days in that matter.  I make no further order on the breach offence itself. 

57I direct that 9 months of the sentence imposed in AP-14-2932 be served cumulatively on the sentence imposed on G10267040 in CR-17-00666. 

58The total effective sentence over all three matters is 4 years' and 6 months’ imprisonment. 

59I direct that you serve a minimum period of 3 years' and 3 months' imprisonment before being eligible for parole. 

60Pursuant to s.18(4) of the Sentencing Act 1991, I declare that the period of 645 days, not including today, be reckoned as time already served under this sentence and I direct that the fact of this declaration and its details be noted in the records of the court.

61Pursuant to s.6AAA of the Sentencing Act 1991, but for your plea of guilty, the total effective sentence that would have been imposed is 6 years' imprisonment with a minimum period of 4 years and 6 months to be served before eligibility for parole.

62At the plea hearing, the Crown sought some 17 orders for restitution which were not opposed and I have made those orders. 

63At the plea hearing, the Crown also sought a disposal order which was not opposed and I have also made that order today. 

64I understand that there will be a likely opposed application for forfeiture relating to the Holden Commodore to be heard and a date for that hearing will be determined this morning.  Are there any other matters on the sentencing at this stage? 

65COUNSEL:  No, Your Honour.

66HIS HONOUR:  A convenient date for this court for the hearing of the forfeiture order application would be Friday 15 December at 10 am; does that suit or not suit either counsel? 

67MS LENTHALL:  Could I just check that date, Your Honour?  No issue with that date, Your Honour.

68HIS HONOUR:  All right.  Well, that date will be listed, Friday 15 December at 10 am for the contested hearing as to that forfeiture order. 

69As I said, on my leaving the Bench those figures for cumulation and concurrency will be available in an unedited form.  Now, beyond that I am on circuit and I will be leaving very soon, so if there are any amendments that need to be made you will have some time to consider, and then if amendments need to be made, it would have to be something like next Monday again before I go back to the circuit hearings. 

70Thank you very much all of you for your help.  We are adjourned to1.30 at Ballarat.

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