Director of Public Prosecutions v Green
[2021] VCC 1143
•13 August 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-01107
CR-21-00993
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MITCHELL JEFFREY GREEN |
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JUDGE: | HIS HONOUR JUDGE GEORGIOU | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 August 2021 | |
DATE OF SENTENCE: | 13 August 2021 | |
CASE MAY BE CITED AS: | DPP v Green | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1143 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: jury trial – acquittal on charge of aggravated carjacking – verdict of guilty in respect of alternative charge of carjacking – carjacking committed in the company of others – threatening behaviour – plea of guilty on separate indictment to being a prohibited person in possession of a firearm, possession of diacetylmorphine, possession of methylamphetamine – lengthy criminal history – difficult background – drug addiction – nothing to moderate moral culpability in respect of carjacking offence – late pleas of guilty on second indictment – some utilitarian benefit flowing from the pleas of guilty as a result of COVID-19 pandemic and impact on court lists – reduction in sentence moderate given late pleas – pleas of guilty not indicative of remorse – custody more onerous because of pandemic – guarded prospects of rehabilitation – sentence reduced by reason of ‘dead time’ in custody
Legislation Cited: s 79 Crimes Act, s5(1) Firearms Act 1996, s73(1) Drugs, Poisons and Controlled Substances Act 1981
Cases Cited: Kheir v R [2012] VSCA 13, R v Renzella [1997] 2 VR 88, Karpinski v The Queen [2011] VSCA 94
Sentence: total effective sentence of imprisonment of 26 months with a non-parole period of 18 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr B. Nibbs | Solicitor for the Director of Public Prosecutions |
| For the Accused | Mr M. Page (plea) | Leanne Warren & Associates |
HIS HONOUR:
1Mitchell Jeffrey Green, you fall to be sentenced in respect of two separate indictments.
2On Indictment J11809481A, you were charged with aggravated carjacking and common assault. Following trial, a jury acquitted you of the charge of aggravated carjacking but returned a verdict of guilty in respect of an alternative charge of carjacking which was left for their consideration. The jury was not able to reach a verdict in relation to the charge of common assault.
3On Indictment J11809481B, you pleaded guilty to being a prohibited person in possession of a firearm, a charge of possessing diacetylmorphine and a charge of possessing methylamphetamine.
4The circumstances of your offending relevant to the charge of carjacking were the subject of evidence at trial.
5On 11 June 2018, at approximately 11.15 pm, the victim of the carjacking, Kyle Wernert, went to 78 Exford Drive, Mornington, the home of Sasha Maher. Ms Maher is your former partner. Also present at that address were Ms Maher's partner, Darren Pillar, a friend of Ms Maher's, Debbie Johnston, Ms Johnston's 12 year-old daughter, Bonnie, and Ashley Jansen, a housemate.
6Mr Wernert went to Maher's house to collect $90 which Pillar owed him for cannabis.
7An argument developed between Wernert and Pillar over the debt. Sasha Maher came to the kitchen where they were arguing and asked Wernert to leave. They all moved outside of the house, where the altercation continued and, at one point, Ms Maher was knocked to the ground by Wernert. While the argument was taking place, Bonnie contacted you, as she had been placed in fear by all the yelling.
8Mr Wernert eventually left the house. You spoke to Darren Pillar after the incident and told him to send a message to Wernert, which he did. Pillar's message stated: 'Mitch said meet up now or he'll come to yr mum's house.' Mr Wernert's mother lived a few houses away from Ms Maher. On receiving that message, Wernert droved immediately to his mother's address, concerned for her welfare. On being assured she was okay, Wernert left his mother's and approximately 280 metres down Exford Drive, his car was intercepted by two cars. You were in one of those cars. As Wernert was getting out of his car, you approached him. You told Wernert that you and the persons you were with were taking his car.
9Although Wernert alleged you assaulted him and were in possession of a firearm, the jury was not satisfied of those matters beyond reasonable doubt. They are not relevant to my sentencing discretion.
10You instructed Wernert to get into your car. As you were ushering him towards the car, Wernert saw another person wearing a bandana get into his, that is, Wernert's car.
11As you were walking Wernert to your car, he seized an opportunity to run from you. He ran straight to his mother's house, screaming for help. He was chased by you and the others in cars for a short distance. His car was driven by one of your co-offenders and found by police abandoned in a nearby court.
12Mr Wernert was able to identify you as the primary offender but could not identify any of the other offenders.
13A CCTV recording from a nearby resident captured Mr Wernert fleeing on foot.
14On 10 July 2018, you were arrested after you had boarded a plane at Melbourne Airport.
15You were searched by police who found two small bags containing a total of 0.2 grams of heroin, and two small bags containing a total of 1.2 grams of methylamphetamine.
16A search was conducted at your address in Harrow Avenue, Somerville. Police found a sawn down rifle inside a bag in a shed on the property. Your fingerprints were found on the firearm.
17The charges on Indictment J11809481B relate to the drugs and firearm found on 10 July 2018.
18It is not alleged that your possession of the drugs was for any purpose related to trafficking.
19While a victim impact statement was not obtained, Mr Wernert's evidence was that he was in 'complete distress' when he got to his mother's house. He ended up vomiting. I have little doubt that him being confronted by you and the others was a terrifying experience.
20You have admitted your criminal history. It extends back to 1988 when you were 17 years of age and living in Western Australia. You then received sentences of imprisonment. Since your move to Victoria, you have some 34 separate appearances in the Magistrates' Courts for dishonesty offences, offences of violence, drug offences, and driving offences. You have spent a significant period of your life in jail. You are not to be punished again in relation to those prior convictions, but I may have regard to them in considering the need for specific deterrence, protection of the community, and in assessing your prospects for rehabilitation.
21Your unfortunate history of offending reflects your difficult background and difficulties you have experienced because of drug abuse.
22Mr Page, who appeared on your behalf, stated that you attended Exford Court, seeking out Mr Wernert to speak to him about the earlier altercation at the home of Ms Maher. However, consistent with your plea of not guilty, you maintain you were not involved in the carjacking. The jury found otherwise. In relation to the firearm charge, Mr Page submitted you had handled it previously, but it did not belong to you. Furthermore, he submitted, it had been at your house for a considerable period of time. The firearm was not loaded and, according to Mr Page, was inoperable. No ammunition for that firearm was found during the police search.
23In relation to your possession of the drugs, Mr Page submitted you have, throughout your life, been plagued by drug addiction. The drugs found on you, he submitted, were for your personal use. Given the quantities involved, I accept that submission on the balance of probabilities.
Background and personal circumstances
24Mr Page submitted your life has been marked by tragedy.
25You were born in Perth in 1971. You are now 50 years of age. Your mother was 15 years old when she gave birth to you. She gave you up for adoption.
26You were adopted by a family and were one of three children they adopted. When you were approximately nine years old, your adoptive parents and your older adopted brother were involved in a car crash and killed.
27Following their deaths, you lived with your older sister, Jacquie, in the house of your adoptive parents. Little interest was taken in you and your sister, who suffers from cerebral palsy, by the authorities. You were left largely unsupervised and received very little by way of guidance. In your early teens you began to use cannabis and other drugs. Despite that, you managed to complete Year 10 at school. However, not long thereafter, at the age of 17, you were sentenced to your first term of imprisonment.
28Whilst in gaol in 1990, serving a six-month sentence, you met another prisoner who invited you to Melbourne upon your release. You took up his invitation and, with your sister, you travelled to Melbourne in 1991. In approximately 1992, when you were aged 21, your biological mother sought you out in Melbourne. She and her sister travelled to Melbourne to meet with you. At this time, you were in a relationship with Leanne Green, whom you married. Leeanne had children from a previous relationship. Your mother had her own issues with drug abuse. Whilst in Melbourne, she overdosed in front of Leanne's children. Because of that, you asked her to leave and paid for her airfare back to Perth. Two weeks later she committed suicide, and left a note blaming you for not accepting her.
29Your relationship with Leanne lasted some 19 years and together you have two children, a daughter aged 28 and a son aged 26. Your son is in custody in Victoria.
30Despite your circumstances, you maintain contact with your children and have a good relationship them. You also maintain a good relationship with Leanne.
31In the last five to six years, you have been in a relationship with Tammy Barden. Ms Barden remains supportive of you and it is your intention to live with her upon your release. Through Ms Barden, I was told you have work lined up as a shop fitter upon your release.
32With respect to your drug addiction, Mr Page submitted you have availed yourself of the drug counselling offered by Caraniche within the prison system, completing well over 70 sessions of counselling. Tendered on your behalf, marked Exhibit D1, is a report from Karly Doyle, forensic clinician. You saw Ms Doyle for a total of 10 sessions after having been released from custody on 26 August 2020. She states during that period you consistently demonstrated a positive attitude to treatment. You attended sessions as directed and conducted yourself in a mature and respectful manner. She considers you have been responsive to relapse prevention strategies and have also been working on healthy and prosocial alternatives. Despite the counselling you undertook in prison, and the further counselling with Ms Doyle, Mr Page sensibly accepted that your prospects of rehabilitation are guarded. Given your lengthy history of offending and drug abuse, I agree.
33Pre‑sentence detention is agreed at 780 days. Further to that, you have spent a significant period of time on remand in relation to other charges which did not proceed. In respect to allegations of intentionally causing serious injury or recklessly causing serious injury, you were remanded between 19 April 2016 and 17 January 2018, a period of 638 days. Those charges were discontinued by the prosecution less than a week before your case was to go for trial. You were also remanded on a charge of aggravated carjacking for 76 days between
3 December 2020 and 16 February 2021. That charge was also withdrawn. Thus, in total, you have been on remand for 714 days, which Mr Page described as 'dead time'. Mr Page submitted that because of your pre‑sentence detention and the dead time you spent on remand, I should not sentence you to any further term of imprisonment.34Mr Nibbs, who appeared on behalf of the Director of Public Prosecutions, very fairly did not oppose that submission.
35The offence of carjacking is a serious offence. It is a category 2 offence, and I must therefore sentence you to a term of imprisonment. It was not suggested I do otherwise. The offence carries a maximum penalty of 15 years' imprisonment. Being a prohibited person in possession of a firearm is also a serious offence. The maximum penalty it carries is one of 10 years' imprisonment.
36Although you were facing a charge of aggravated carjacking on Indictment J11809481A, I was informed you did not offer to plead guilty to the alternative charge of carjacking. You are not entitled to any of the benefits that would flow from a plea of guilty or an indication of guilt of the offence.
37Your plea of guilty in relation to the firearm charge was not entered until
11 June 2021, after the verdict on the charge of carjacking, which was returned on 28 May 2021. Similarly, your pleas of guilty in relation to the drug charges were not entered until 11 June 2021.38The maximum penalty on each of the two drug charges, given I am satisfied you did not possess those drugs for any purpose related to trafficking, is one of 12 months' imprisonment.
39As to the circumstances of the carjacking, I have regard to the fact that it was committed in the company of others, in the small hours of the morning, and placed Mr Wernert in great fear. Your behaviour was threatening, particularly in directing him to your car. I am not able to make any finding as to whether the carjacking was premeditated or occurred on the spur of the moment. There is nothing to moderate your moral culpability in the commission of that offence.
40In relation to the charges on the second indictment, although your pleas of guilty were entered late, you are nevertheless entitled to some reduction in penalty given the utilitarian benefits that flow from the pleas of guilty. This is particularly so because of the COVID-19 pandemic and its impact on Court lists. The reduction in sentence, however, will be moderate, given the lateness of your pleas of guilty.
41I do not find, nor was it submitted, that your pleas of guilty to those matters are indicative of any remorse. In my opinion, you are not remorseful in respect of any of your offending.
42You have served some of your time in custody during the COVID-19 pandemic and I accept that your time on remand, during that period, was rendered more onerous by reason of the restrictions in place. As I understand it, you were in custody until 26 August 2020, at which time you were granted bail on the matters before me and the other charge of aggravated carjacking. You were returned to gaol on 3 December 2020 following an application to revoke your bail. Whilst bail was revoked on the other charge of aggravated carjacking, it was not revoked on the matters before me. You were re-admitted to bail on or about 16 February 2021, until 10 May 2021, when arrested on other offences. On 13 May 2021, on the application of your counsel, I revoked your bail on the charges before me.
43I consider the sentencing principles of general deterrence, specific deterrence, and denunciation to be the paramount sentencing considerations. Others who are minded to commit offences such as carjacking or possessing firearms when they are prohibited persons, must understand that they risk condign punishment. Given your criminal history, the sentence I impose must also operate to deter you from further offending. This is also important, given my finding that your prospects of rehabilitation are guarded. The sentence I impose must also be proportionate to your offending and serve to protect the community.
44In sentencing you, I have had regard to current sentencing practice in respect to all the offences I am dealing with as one of the factors informing my sentencing discretion.
45In respect to the time you have served on remand in relation to offences that were withdrawn, that is, the 714 days, I will reduce the head sentence and non-parole period I would otherwise have imposed.
46The sentence I would have imposed in respect of the carjacking and firearm charges is one of three years. This is calculated on the following basis - 30 months on the carjacking charge and 12 months on the firearm charge. I would have ordered cumulation of six months of the sentence imposed on the firearm charge on the sentence imposed on the carjacking charge.
47However, having regard to the 'dead time', in the exercise of my discretion, I propose to reduce the sentence on the carjacking charge to one of 22 months, and the sentence on the firearms charge to one of eight months and direct that four months of the sentence on the firearms charge be served cumulatively. This will result in a total effective sentence of 26 months. Thus, to be clear, the reduction in sentence I am making to allow for the time you have spent on remand in relation to charges that were ultimately withdrawn is one of 10 months. I acknowledge that this reduction in sentence distorts what might otherwise be thought to be an appropriate sentence. However, on the approach taken in cases such as Kheir v R,[1] R v Renzella,[2]and Karpinski v The Queen,[3] as well as the application of the totality principle, I consider it appropriate to reduce your sentence as outlined in the exercise of my discretion. I should warn you Mr Green to not consider the balance of the 'dead time' as credit owing to you. You do not have an automatic entitlement to draw on that time. Each case will be considered on its own merits.
[1] [2012] VSCA 13
[2] [1997] 2 VR 88
[3] [2011] VSCA 94
Sentence
48On Indictment J11809481A:
On the alternative charge of carjacking, you are convicted and sentenced to a term of imprisonment of 22 months.
49On Indictment J11809481B:
On Charge 1, being a prohibited person possessing a firearm, you are convicted and sentenced to a term of imprisonment of eight months.
On Charge 2, possessing a drug of dependence, namely diacetylmorphine, you are convicted and sentenced to 14 days' imprisonment.
On Charge 3, possessing a drug of dependence, namely methylamphetamine, you are convicted and sentenced to 14 days' imprisonment.
50I direct that 4 months of the sentence imposed on Charge 1 on indictment J11809481B be served cumulatively on the sentence of 22 months imposed on the charge of carjacking on Indictment J11809481A. This makes a total effective sentence of 26 months. I direct that the minimum period to be served before becoming eligible for parole is 18 months. I appreciate that the fixing of a non-parole period in light of your pre-sentence detention is perhaps otiose.
51Pursuant to s18 of the Sentencing Act, the period of pre‑sentence detention reckoned as having been served on each of the matters before me is 780 days, not including today.
52Mr Nibbs, what do I do about the common assault charge on the first indictment? Do I strike it out and discharge Mr Green?
53MR NIBBS: Yes, Your Honour.
54HIS HONOUR: Ms Stanley, do you agree with that course?
55MS STANLEY: No issues with that course, Your Honour.
56HIS HONOUR: All right, the common assault charge on Indictment J11809481A is struck out and you are discharged on that offence. Now, are there any other matters to which I need to attend?
57MR NIBBS: Only if you have not ordered or made the order in terms of the forfeiture and disposal, but I think that was done on the last occasion.
58HIS HONOUR: It was, I think, Mr Nibbs, so I do not need to make those again. Those orders that have been sought are made.
59MR NIBBS: Thank you, Your Honour.
60HIS HONOUR: All right.
61MS STANLEY: Nothing further then, Your Honour.
62HIS HONOUR: All right. Well, thank you both for your assistance, and if you would also convey my thanks to Mr Page, Ms Stanley.
63HIS HONOUR: Thank you. Please adjourn the court.
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