Director of Public Prosecutions v Griffith
[2021] VCC 886
•29 June 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 20-01831
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOSHUA GRIFFITH |
---
JUDGE: | HER HONOUR JUDGE QUIN |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 12 May 2021 |
DATE OF SENTENCE: | 29 June 2021 |
CASE MAY BE CITED AS: | DPP v Griffith |
MEDIUM NEUTRAL CITATION: | [2021] VCC 886 |
REASONS FOR SENTENCE
---
Subject: Burglary, Theft, Attempted Theft; Prohibited person possessing a firearm, Handling stolen goods, Obtaining property by deception, Theft of firearms, Possession of a drug of dependence, Driving whilst suspended, Deal with property suspected of being proceeds of crime, Dangerous driving and Unlawful assault,
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms J. Fallar | Office of Public Prosecutions |
For the Accused | Ms A. Burnnard | Patrick Dwyer |
HER HONOUR:
1Joshua Griffith, you have pleaded guilty to the following offences:
2Four counts of Burglary; 23 of Theft; 11 of Attempted theft; 1 of being a Prohibited person possessing a firearm; three of Handling stolen goods; one of Obtaining property by deception; one of Theft of firearms; and one of Possession of a drug of dependence
3You have also pleaded guilty to and agreed to have dealt with by me the following summary offences:
4Two of Driving whilst suspended; two of dealing with property suspected of being proceeds of crime; one of Dangerous driving and one of Unlawful assault. The maximum penalties for the offences are:
a.Attempted theft - Level 6 imprisonment - five years
b.Burglary – Level 5 imprisonment –ten years
c.Dangerous driving – 240 Penalty Units or two years.'
d.Dealing with property suspected of being proceeds of crime – two years
e.Driving whilst suspended – 240 Penalty Units or two years' imprisonment
f.Handling Stolen Goods – Level 4 imprisonment – 15 years
g.Obtain Property by Deception – Level 5 imprisonment – ten years
h.Possession of Drug of Dependence – where it is not committed for purpose related to trafficking: 30 Penalty Units or one year
i.Prohibited Person Possess Firearm – 1200 Penalty Units or ten years' imprisonment
j.Theft – Level 5 imprisonment – ten years
k.Theft of firearm – 1800 Penalty Units or 15 years imprisonment
l.Unlawful assault – 15 Penalty Units or three months' imprisonment
5In relation to some of these offences there are mandatory driving licence disqualification as well.
BACKGROUND
6You were involved in a series of burglaries and theft of motor vehicles and other valuable items including firearms between 5th July and 4th of September 2019.
THE OFFENDING
Charge 17In respect of Charge 1, at approximately 4.22 am on Friday the 5th of July 2019, two unknown offenders committed a burglary at a house in Harkaway. They gained access to the garage via an unlocked door and stole 2 cars one of which was a Land Rover. The cars were unlocked and the keys were inside them. Police have not identified the offenders who committed the burglary.
8On Thursday 18th of July 2019 or about 2 weeks later, the Land Rover was recovered by police in Broadmeadows and examined. Fingerprints were taken and a cap and mobile phone were seized from the car. Your fingerprints matched some of those taken from the Land Rover and the phone. You are guilty of theft by reason of the extended definition in s73(14) Crimes Act 1958.
Charge 2
9On Sunday 7th of July 2019 at approximately 12:10pm you and Jayden Burns entered the Anaconda store in Bayswater North. Once in the shop, you selected a number of items of clothing then walked out through the checkout area without attempting to pay. An attendant tried to stop you both leaving, but Burns became verbally aggressive. The offending was captured on CCTV – you were seen wearing the cap as that recovered in the Land Rover mentioned above. Car park footage shows you and Burns enter a black Mercedes hatch with cloned plates and drive away at a fast speed. Your licence was suspended at the time. That also relates to the summary offence of driving whilst suspended, occurring on two occasions in July.
Charges 3 and 4
10On Tuesday 9th of July 2019 at approximately 1.05pm the owner of a Porsche parked her car in the garage of her house in Eltham – she left the garage roller door and the internal door open. About five minutes later you entered the garage and used a spare key to steal the Porsche. The owner of the Porsche was inside the house and was not alerted to your presence until she heard the engine to the Porsche start. You were observed on CCTV being dropped off in an un-plated SUV at the Eltham house, and then once you are in the Porsche, driving off in convoy with the SUV.
11On Thursday 18th of July 2019, the stolen Porsche displaying cloned registration plates was recovered by police in South Yarra. Your co-offender Ricky Bloomfield was arrested in a nearby apartment in possession of the keys for the Porsche.
12When your girlfriend was arrested at the apartment you were sharing in Mont Albert on 12th of August 2019 she was in possession of a mobile phone. Analysis of that phone showed it was used by you, and located on it were still images of the CCTV footage from the Eltham house, likely to have been from a media release, a video of you washing the Porsche and you wearing similar clothing as that depicted on the CCTV from the Eltham property.
Charge 5
13On Saturday 20th of July 2019 at approximately 4:00pm a white ute was parked near the entrance to Box Hill Centro Shopping Centre. The ute was parked with its hazard lights on whilst the owner was dismantling a nearby temporary fence. As he was doing so he noticed you walk to the driver side of the ute and look inside. A verbal exchange involving swearing and abuse took place and you said,
'I will take the car if I fucking want to.'
14You got in the ute and started reversing – the owner ran around and opened the passenger door swearing and demanding you get out of the ute – you then drove away. The owner's iPhone, iPad and wallet containing personal cards were also in the ute at the time of the theft. Incorporated in that summary is the related summary offence of unlawful assault.
15At approximately 5 o'clock you returned to the shopping centre and parked the ute in the underground car park. Police located a 'Dare' iced coffee bottle in the ute – none of the owners belongings as identified were in the ute. A Forensic officer examined the DNA swab from the 'Dare' bottle and it matched your DNA.
16When your girlfriend was arrested as mentioned above, police located clothing worn by you, whilst stealing the ute, in your apartment.
Charges 6 and 7
17At approximately 8.15 am on Monday 5th of August 2019, an unknown offender committed a burglary at a house in Yarrambat. The offender gained access to the house via an open garage roller door and stole a set of keys to a BMW and drove away. On Wednesday 7th of August 2019 at approximately 3:10 am you attempted to steal money from a charity box, attached to the drive-through window at McDonalds, Blackburn. CCTV footage shows you attend the drive-through area in the stolen BMW with an unknown co-offender. As in the earlier instance, (Charge 1) you are guilty of the theft by reason of the extended definition in the Act.
18You parked the BMW close by and both returned to the drive-through window on foot – you went to the first window with a screw driver in hand – you then went to the second window, though upon seeing staff, you returned to the first window. After unsuccessfully trying to open the first window and access the charity tin, you both went off in the opposite direction.
19On Monday 12th of August 2019, police gained access to the carpark at the apartment where you were staying. A search located the stolen BMW with stolen plates – whilst the search was being conducted your girlfriend entered the carpark and was arrested. Analysis of her phone located an image of you sitting in the stolen BMW. When the BMW was searched police located a number of items as listed in paragraph 58 of Exhibit A. Enquiries in relation to a number of these items including trade tools, jewellery and revealed that they had been stolen at different times, from different residential properties and cars or were proceeds of crime. (See paragraphs 59 to 61) That amounts to the related summary offence: Charge 53.)
20The following day police executed a search warrant at your apartment and located the items listed in paragraph 67, including a sawn-off shotgun loaded with cartridge ammunition (Charge 8 Prohibited person possessing a firearm). Additionally there were some of the items including clothes, jewellery and tools stolen from premises in various properties in Melbourne suburbs and from some of the stolen cars referred to above. (Related summary offence: Charge 55 – Dealing with property suspected of being proceeds of crime)
Charge 9
21On Tuesday 13th of August 2019 at approximately 2:14am you gained access to grey Honda Accord sedan, parked in Greensborough, by smashing the driver's side window with an unknown implement. You then were able to reach through the broken window and open the driver's side door. You opened the glove box and centre console and stole two Nike gyms bags containing towels and boxing accessories from the backseat. (Charge 9 – Theft) The owner was awoken by the smashing sound of the window. He walked out the front of his house and observed a white vehicle driving away at a fast speed. Fingerprints were ultimately obtained from a perfume box that was in the Honda, some of which matched your fingerprints.
Charges 10, 11 and 12
22On Wednesday 14th of August 2019 at approximately 2:25 am you and an unknown co–offender used stolen keys to steal a Holden wagon, at a house in Chirnside – you were both captured on CCTV gaining access to the unlocked Holden wagon and rummaging through it. You were then captured attempting to gain access to a key safe, attached to the boundary fence at the residence. Either you or your co-offender waited in another car then CCTV captures the Holden wagon being driven away. (Charge 10 – Theft)
23On the same night, unknown offenders have gained access to an unlocked Toyota Landcruiser, parked on the street in Chirnside Park. Stolen from the Landcruiser were a wallet with credit cards and a jacket. At approximately 5:14 am you attended the BP service station close by, driving the Holden wagon – you made two purchases using credit cars stolen from the Landcruiser and you were wearing the jacket also stolen from the Landcruiser.
Charge 13
24On Wednesday 14th of August 2019 at approximately 9:20 pm you attended a Coles Express in Templestowe – you were driving the stolen Holden station wagon. You filled the car up with petrol then drove away making no attempt to pay. This offending was caught on CCTV footage – and you are wearing a cap purchased using the stolen credit card.
Charges 14 through to 31
25On Thursday 15th of August 2019 at approximately 5:32(C) pm you along with co–offenders Joshua Naggs and Ben Wocheich-Higgs attended at the 'Basement 2' car park of an apartment complex in Doncaster. You gained entry to 17 different vehicles and stole or attempted to steal various items from each vehicle. CCTV from the building shows you driving the stolen Holden wagon - you were brandishing a sledgehammer and proceeded to damage and force entry into numerous cars in the car park. In addition to damaging and entering 17 cars, you also damaged and entered storage cages located around the periphery of the basement before returning to the stolen Holden wagon. You were wearing high–visibility clothing at the time of the offence, whilst Naggs wore a dark coloured jacket with a red baseball cap and the other offender wore a grey hooded jumper that was pulled over his head. Fingerprints were taken from some of the vehicles involved, some of which matched with your fingerprints.
Charge 32
26On Saturday 17th of August 2019 at approximately 3:30 pm you and Benjamin Campbell attended Westfield Shopping Centre Doncaster East. You went to the menswear section and selected some clothes or jackets – you and Campbell were confronted by security guards and Campbell resisted falling to the ground with the security guard. After assaulting the guard, Campbell ran out of the store, dropping the stolen jackets on the way. Whilst the struggle was taking place you attempted to exit David Jones with the clothes – you were stopped by the manager and another security guard.
Charges 33 and 34
27On Saturday 17th of August 2019 at approximately 2:05 am, an aggravated burglary occurred at a house in Doncaster East. The offenders cut the power to the property and forced open the rear glass sliding door to gain entry. Once inside the residence, the offenders stole keys to a Volvo wagon and a VW Golf and stole the two vehicles from the driveway.
28On Monday 19th of August 2019 at approximately 11:35 pm the owner of an Audi sedan had put petrol in his car, and left this to go inside the Coles Express Dandenong to pay. Whilst inside, you drove into the service station in the VW Golf and parked in front of the Audi. You got out and sat in the driver's seat of the Audi – at the same time your co-offender moved seats in the Golf and drove off. As with the thefts of motor cars encompassed by Charges 1 and 6 your guilt for the theft of the VW is based on the extended statutory definition of theft. The owner of the Audi saw you get in his car, ran out the store and attempted to stop you driving away. He was holding the door as you drove off, dragging him before he fell into the forecourt. You then drove off in the Audi (Related summary offence: Charge 102 – Dangerous driving).
29On Wednesday the 21st of August 2019 your co–offender Campbell was arrested in the stolen VW Golf.
Charge 35
30On Saturday 24th of August 2019 at approximately 4:00p m a Ford Territory wagon was parked at Eltham Leisure Centre. At approximately 5:28 pm you entered the Leisure Centre and stole a backpack, containing keys to the Ford Territory and the owner's wallet from the customer storage pigeonholes. You then used the keys to steal the Ford and his backpack and wallet from the Leisure Centre car park. The Territory was later recovered at a property in Endeavour Hills.
Charge 36
31Between the 25th and 29th of August 2019 unknown offenders committed a burglary at a residence in Wheelers Hill. Access to the premises was gained by forcing open the front door. Once inside the offenders stole three sets of car keys to a BMW, a Porsche and Audi. On Thursday the 29th of August the BMW was located outside a property in Ferntree Gully, displaying a different registration plate on the front and its' usual one on the rear. Police lifted two fingers prints, took a DNA swab from a Gatorade bottle in the car and seized a rubber glove from the BMW. A thumb print taken matched yours as did DNA from the rubber glove. As with the thefts of motor cars encompassed by Charges 1,6 and 33 your guilt is based on the extended statutory definition of theft.
Charges 37 and 38
32On Monday 26th of August 2019 between 7:30 am and 5:50 pm you committed a burglary at a residence in Malvern – you gained access by forcing open the rear wooden door. Once inside you located and stole numerous items, including but not limited to:
m.Australian passport
n.Necklace
o.Apple iPad
p.Marc Jacobs handbag
q.Cannon Camera
33You exited the premises via the front door with the goods with an estimated value of $10,000. A cream–coloured glove located at this property contained DNA matched to your own. Fingerprints lifted from a mobile phone located at the property matched yours.
Charges 39 through to 45
34On Sunday 1st of September 2019 at approximately 2:30pm unknown offenders stole numerous items during a burglary at a residence in Bulleen. On Tuesday 2nd of September 2019 between 1:00 am and 5:00 am unknown offenders stole a BMW that was parked in the driveway of a residence in Forest Hill.
35On Thursday 4th of September 2019 at approximately 11:57am you, Benjamin Rushton and another unknown co–offender committed a burglary at a residence in Balnarring. You arrived in a silver Holden Commodore, believed to be stolen vehicle 1KG 2VR and gained entry to the property by forcing open a side door of the premises. You ransacked the entire property including the shed area where firearms were stored in a locked safe and stole the following seven firearms:
r.Timber box containing 12 Gauge SKB shotgun S/N148461 (Exhibit 318)
s.Timber box containing 12 Gauge AE Bayliss shotgun S/N4363 (Exhibit 319)
t.FX Airgun S/N FXC190281 (Exhibit 320)
u..410 Boito Shotgun S/N 247412 (Exhibit 321)
v..22 BRNO S/N 71244 (Exhibit 322)
w..22 Hubertus S/N 1324 (Exhibit 323)
x.Birmingham small arms .22 rifle (Exhibit 324) (Charge 40 – Theft of firearm)
36Other items stolen are listed in paragraph 137 Items sub-paragraph (h)to (bb).
37The offending was captured on CCTV and shows a Holden Commodore arrive at the address, you exit the rear seat and approach the house – you are seen knocking on the front door of the premises and peering through the windows. An unknown co–offender approaches the front door holding a hammer. You and the unknown co–offender then move two CCTV cameras, causing the camera angle to cover the ground, preventing any vision of you entering the house being captured. Approximately 20 minutes later the silver Holden Commodore is observed driving towards the shed, where the registered firearms were stored. Approximately 35 minutes later the Commodore is captured driving away from the premises.
38At approximately 2:37pm the same day, police observed the stolen BMW from Bulleen parked with the stolen Commodore, displaying stolen registration plates, in Mornington. At that time the vehicles' boots were open with three people in close proximity. Police observed co–offender Rushton as the driver of the Commodore and you were observed driving the stolen BMW with an unknown male in the front passenger seat. As with the thefts of motor cars encompassed by Charges 1,6,33 and 36 your guilt is based on the extended statutory definition of theft.
39At approximately 4:04 pm you were observed by police to park the BMW in Chadstone outside a strip of shops. You went into a nearby milk bar – your co-offender Brodie Randall was observed by police to be seated in the passenger seat of BMW - as police approached, Randall was observed sliding over to the driver's seat. Police positioned their vehicle to prevent him driving away – he ran from the BMW but was soon located and arrested.
40At the same time, you exited the milk bar and ran towards Power Avenue – you were followed by the police and arrested a short distance away. You were bitten by a tactical police dog during your arrest and as a result sustained a wound to your left leg. Your DNA was located on items that were in the BMW and your fingerprints were located in the BMW. Additionally, six of the seven stolen firearms from the Balnarring property were in the BMW. The seventh firearm (the Birmingham small arms .22 rifle) was subsequently located in the possession of co–accused Benjamin Rushton.
41Also located in the BMW were the items listed in paragraph 151 sub-paragraph (a)through to (qq). Enquires in relation to these items confirmed they were stolen, the majority of which from the property in Balnarring though some from the property in Bulleen.
42When you were searched police located two zip lock bags containing a crystal Methylamphetamine. (Charge 45 – Possession of a drug of dependence.)
ARREST AND INTERVIEW
43On Saturday the 7th of September you were released from Dandenong Hospital and transported to Box Hill Police Station – you made a partial 'No Comment interview.' In relation to the burglary which occurred in Harkaway (Charge 1) where two vehicles were stolen, you admitted you may have got a lift in one of the vehicles. You admitted to visiting your girlfriend in the Quest apartments and that you had clothing there, but said you couldn't comment on the other items that had been located in the apartment.
44When asked in relation to the shop theft at David Jones you admitted stealing the clothes – you denied the bag containing the drugs you had on you was yours. You admitted to not having a driver's licence and that you should not have been driving during the relevant period.
45After interview you were remanded in custody. On 27 February 2020 you were re-interviewed at your request and made admissions to putting some of the stolen goods at the Quest apartment, as well as to hiding one of the firearms under the bed.
Victim Impact Statements
46I received Victim Impact Statements from Aphra Natsis and Michael Carr - one is from the owner of the Porsche in Eltham (Charges 3 and 4). She has increased concern for her safety and now takes extra precautionary measures – she is fearful at home where the garage was accessed. Her car and possessions were trashed and she too feels she was used and abused. The other is from the owner of the property at Balnarring – he feels that the house in which he used to feel safe and secure can never feel that way again – his family's lives were invaded and their home and personal space were ransacked by those who he indicated exhibited no concern.
47Such sentiments equally apply to others whose property you either stole, dealt with or destroyed.
Personal circumstances
48I received the following material and take their contents and information contained therein into account:
i.Letters from your girlfriend and her mother both expressing their support for you;
ii.Letter from Paul TULIA ReStart dated 21 May 2021;
iii.Drug screens from between 19 Oct 2019-12 April 2021 (9)
iv.Reports from Gina Cidoni, psychologist dated 26 March 2019 and 1 March 2021;
v.Report of Elizabeth Treston, psychologist dated 26 April 2021;
vi.Medical material relating to your injury/treatment after your arrest.
49You are currently aged 23 – although you are not a young offender as defined in the sentencing legislation, you are relatively young and your age is a factor that I take into account. Despite your age you have been involved in the criminal justice system since you were a teenager.
50You have had a disruptive upbringing with your parents spending periods of time in custody, both having significant drug and mental health issues. Their relationship was volatile, marred with domestic physical violence and other anti-social behaviours associated with drug use. As a consequence you were exposed to violence from a very young age and were not adequately nurtured or supervised whilst growing up.
51You went to a number of different primary schools and you were diagnosed with ADHD. As a consequence you were prescribed Ritalin in Year 3 to control your behaviour. You attended high school but left in the middle of Year 8 – you did attend classes whilst you were at Parkville, and you completed Year 10 at Pavilion alternative school. You were assessed as having a full scale IQ of 84, in the low average range. You have never been in paid employment.
52You have been in a relationship with Amelia Parrott for almost three years – she was your partner with whom you were living in the apartment in Mont Albert. I am unclear as to how much of this time of you being a couple that you have been in custody. You have a good relationship with her family and they support you as indicated in the material provided by them. I note that her step-father has indicated a possible work opportunity for you on your release from custody in his business.
53You have a significant history of drug use and abuse - your use commenced when you were aged about 14 years with cannabis – though you have also consistently used other drugs including ice, GHB and heroin since your teenage years. At the time of this offending you were using suboxone, methamphetamine and GBH. The drug screens provided dated back to 19 October 2019 – you have indicated that since you commenced methadone that you have not used whilst you have been in custody – the screens provided were clean and randomly taken.
54You are in reasonably good physical health although you have some issues with a problem in your leg as a result of a birth defect. Additionally you suffered some physical injuries and psychological consequences when tasered by SOG members and when bitten by the police dog on your arrest – you required hospitalisation for a number of nights for treatment on your leg. Dressings and medication were required for pain management in the period following your release from hospital. I note that you were attempting to flee from the police when these injuries were incurred by you.
55As noted you were diagnosed with ADHD at a young age. You suffered from depression and anxiety when in the youth justice centre and prescribed Avanza and Seroquel when at Parkville. In relation to this current period of custody you had suicidal ideation and were prescribed Lexapro. Ms Treston opined that currently your depressive and anxiety symptoms are being managed, (paragraph 72) that you do not have symptoms to meet the diagnostic threshold for PTSD (paragraph 78), but she recommended further psychiatric assessment in respect of your reported psychotic symptoms. She indicated that you met criteria for Stimulant Use Disorder and Sedative, Hypnotic or Anxiolytic Use Disorder at the time of the offending (paragraph 92). You have recently been prescribed Olanzapine to treat any current issues and have been seeing a psychologist in custody.
56Consistent with so many of those who have experienced the deprived background that you have, you have a significant criminal history. Your first stint in detention was for 10 months when you were aged 15 years. You have subsequently received terms of detention in Youth justice on four other occasions between November 2013 and November 2015. You then progressed to adult custody with your first sentence in March 2016 – the sentence I impose will be your sixth term of adult imprisonment. You have been placed on numerous community orders both in juvenile and adult jurisdictions – in respect of Community Correction Orders you have had several opportunities, and have been breached unable to complete them, ultimately serving time in prison. Most of your offending is dishonesty relating to burglaries and thefts, including thefts of motor cars, driving related offending and possession of drugs and/or weapons. Given this history, you are clearly at risk of being institutionalised at a relatively young age – you informed Ms Treston that on arrival in custody you felt comfortable, such not being surprising given your background. However, you indicated your attitude has changed and that you want to focus on a drug free life and that you have had time to reflect and commit to a more positive future.
57This offending and your criminal history is consistent with you having traits as opined in the psychological material – namely immaturity, impulsive tendencies, difficulty considering consequences, poor judgement, difficulty with concentrating and making decisions – these traits accompanied with significant drug use provide some explanation for your offending and inability to cope, particularly when your girlfriend was in custody. As noted by Ms Treston, whilst your acute intoxication with methamphetamine contributed to the actual commission of the offences, your complex psychiatric profile, psychosocial adversity and lack of appropriate support has played a significant underlying role in these incidents and in self-medication( See paragraph 103).
58I accept that your dysfunctional upbringing and exposure to violence and drug use in your childhood is to be given weight in the sentencing exercise. As noted in Marrah:
'The circumstances of deprivation, abuse and other social disadvantage occurring during an offender's formative years are more than matters of historical significance to the administration of justice. The effects of such social disadvantage do not generally diminish with the passage of time, and are likely to have profound and lasting consequences. The common experience of the law is that very frequently such disadvantage precedes the commission of crime, and often explains and contributes to an offender's criminal behaviour.' (See paragraph 16.)
59With similar personal considerations and/or history, the weight to be attributed to general and specific deterrence is lessened and your moral culpability reduced, however other sentencing considerations particularly protection of the community remain an important factor in the sentencing exercise.
60You have been in custody since you were arrested on 4 September 2019 – you have been able to work as a billet whilst at both Barwon and MRC. This is your longest continuous time in custody – during the time you have been on remand, conditions in custody have changed with COVID affecting the prison community. Programs and visits have been restricted, as has the freedom of movement within the prison. Ms Teason opined that you would be likely to find imprisonment more burdensome as you would be unlikely to receive the specific treatment that you require both for your ADHD and mental health issues. Given the COVID situation she was of the view access to programs and treatments to assist you would be or has been greatly reduced – I take into account that prison is likely to be more burdensome for you given your medical issues. Additionally I take into account the impact of COVID on services and other restrictions that you would not otherwise have had to endure whilst in custody.
61As to the circumstances leading up to this offending – you were released from custody on 14 June 2019 – you commenced using drugs immediately using both ice and GHB, escalating to using on a daily basis. You had been living with your girlfriend in an apartment, though she too at that time was engaging in drug use. During the course of this offending in late July 2019 you were hospitalised after overdosing on GHB and you then returned to live with your girlfriend. She ultimately was arrested on 12 August and as a consequence you increased both your drug use and offending after you had been separated. It is fair to say the more serious offending in which you engaged occurred after this time though you were involved in offending during July.
62You have two matters listed at Heidelberg Magistrates' Court, but I understand that you will enter pleas to unlawful assaults, thefts and driving offences committed in August 2019 and that this matters comes before the Magistrates' Court in July.
Plea of guilty -remorse
63I take into account your plea of guilty – it was indicated at the time the committal was listed and no witnesses were required to give evidence. Given the volume of your offending, any trial of these matters would have taken significant court time – particularly given the Covid situation and the backlog in the Courts, there is increased utilitarian value in your plea and it facilitates the course of justice. I accept that your plea is indicative of remorse – you have expressed remorse to Ms Treston and to your girlfriend and her family – I was informed that this extended time in custody has given you time to reflect on your actions and to recognize the impact of your offending on some of your victims.
64You expressed similar sentiments to the Corrections Officer during your CCO assessment who noted you were able to articulate some harm to your victims, and presented with some remorse for your actions, though you also engaged in deflection, particularly on your criminal peers and substance abuse.
Nature and Gravity of the Offence/ Culpability/ Role - s.5(2)(c) and (d) Sentencing Act
65There were some aggravating features of this offending: The offending occurred consistently over a three month period – ten cars were stolen, three of which have not been recovered worth a total of $167,000;
66Some of your offending could be described as brazen placing individuals, like the owner of the Audi at the Coles Express at risk or involving direct confrontation with individuals for instance the owner of the ute;
67Your offending ranged from being spontaneous in some instances, to planned, occurring in the company of others who assisted- at the Balnarring property you were in company with two others, the CCTV camera was moved to avoid your detection, a stolen car was used, the property was ransacked and the volume and nature of firearms stolen and other goods was extensive – I note you maintain that you had no idea how to use the firearms – in respect of the theft of the Porsche you were dropped off at the property;
68The damage and personal adverse consequences to property and car owners was significant – your offending in respect of the cars in the carpark was rampant and the amount of stolen property ultimately found in your possession was substantial. You had only been released from custody three weeks before it commenced – you were released from custody on 14 June.
Rehabilitation
69Ms Treston opined that your risk of re-offending was moderate to high – based mainly on these latter factors including your criminal history, drug and alcohol abuse, psycho-social adversity, limited supports and personality traits. She did however opine that some of these factors could be minimised with your engagement in treatment which would reduce your risk.
70There are features that auger well for your rehabilitation, namely the support of your girlfriend and her family including with accommodation and possible employment, engagement with Restart, plea of guilty and your expressed motivation to get your life back on track and commitment to addressing your drug issues.
71However your prior convictions, significant time already spent in both youth detention and prison and the nature and extent of these current matters before me are such that your prospects are more guarded – it is essential that you remain committed to drug abstinence and engage with relevant psychological and drug related support to be able to stay out of trouble.
72General deterrence is an important sentencing consideration in respect of your offending – people offending in this damaging and out of control manner or engaging in what could be described as a destructive spree, under the influence of, though in order to support, a drug habit, need to know that they will be punished. Given your significant criminal history and the volume of this offending, specific deterrence also is an important sentencing consideration. Both these remain relevant though tempered by your deprived background. Perusal of the summary in respect of your offending highlights the need for protection of the community.
73I must also take into account totality in the sentence that I impose – given the number of different offences and number of victims, some level of cumulation is necessary. Considerations of parsimony are also relevant.
74Neither party disputed that a term of imprisonment was appropriate – the issue was whether I should order a combined sentence.
75The prosecution submitted that, in all the circumstances of this case, the only appropriate disposition was a term of imprisonment- with a head sentence and minimum term. It was submitted that cumulation of individual sentences was required given the separate offending over the three-month period. It was submitted in respect of Charges 14 to 31 an aggregate sentence or concurrency was open to the Court. Implicit in the prosecution submission was that the time already served by you was insufficient.
76Your counsel highlighted that all of the offending was capable of being heard summarily other than the firearm offences. She submitted that I should impose a sentence and CCO – this it was submitted was able to be done, given that you had already served a period of almost two years of pre-sentence detention. Reference was made to Justice Croucher in Dunn [2020] VSC 708 and that I was empowered to impose a sentence of imprisonment for over two years with a CCO in circumstances where the period to be served, after the PSD declaration, was less than 12 months.
77Given your poor history in completing a Community Correction Order I had you fully assessed and received a detailed report from Corrections regarding your suitability for making such an order. The report addresses a number of matters including your attitude to this offending, your extensive criminal history including your inability to complete community orders, substance use and unsuccessful attempts to address this in the past, family/parental history and relationships and instances of concern regarding your conduct in custody. Corrections assessed your general risk of re-offending as high according to the Level of Service Risk Assessment Tool. Clearly there were positive aspects of the assessment as you were however assessed as suitable for a CCO with various conditions recommended.
78I received further written submissions from the prosecution after receiving the CCO assessment. I also received submissions from defence. The prosecution submitted highlighted portions of the report including concern regarding some of your responses, your conduct in custody and a lack of confidence in your ability to remain drug-free and comply with a community order. Further, the objective seriousness of your offending was repeated and highlighted. I have considered the matters raised in those submissions along with the contents of the report – I note there have been other occasions where you have been considered unsuitable and that on this occasion, with a strict regime for treatment and supervision, there is a positive recommendation.
79There is a fine balance between the sentencing options in this case, that is between imposing a head sentence and a non-parole period or fixing a term of imprisonment that is nearing its end but then combined with a CCO. The report concludes:
80It is noted previous orders have failed to act as a deterrent for your re-offending however you presented between the pre-contemplative and contemplative stage of change. You were able to identify goals and rehabilitation and treatment needs upon release from custody. In addition you reported being substance free when exiting prison and plans to reside within safe and stable housing where you feel you will be supported by your partner and her family upon release, an aspect of previous release that you have not been privy to. If I was minded to make an order, various conditions were recommended including judicial monitoring to provide further incentive for you to comply and engage in treatment.
81As is clear from these reasons, you engaged in conduct including that causing destruction of property, placing members of the public in danger and causing distress and angst to owners of cars and personal property whether by theft or damage or by dealing in stolen goods – all of this offending to feed your own drug habit. This is an escalation in your offending in terms of its frequency and volume over a three month period, though it reflects a continuation of the same kind of offending as previously committed by you. You are still young – when you were remanded for these matters you were about 21. Given your extensive involvement in the criminal justice system from a young age, it is fair to say that you are well and truly at the cross roads – continuation of offending in any way – including driving offences, drug offences and stealing cars – will result in you spending more and more time in custody. I am prepared to give you the opportunity though you will still be required to serve some months in custody. That is, the opportunity on a community correction order. It is in the interests of the community that your rehabilitation prospects, such as they are, are maximised, so that on your release, that your risk of re-offending is reduced and your chance of successful re-integration increased. On your release you will be required to comply with the CCO and I will make sure that you are complying by receiving a report from Corrections within month of your release and then again on regular basis throughout the course of the order.
82You need to be aware, Mr Griffiths, that upon your release and entering onto the community correction order, that if you commit any other offences, I will have absolutely no hesitation in having the order breached and having you serve more time in custody that you already have. Do you understand that, Mr Griffiths?
83OFFENDER: Yes, Your Honour.
84HER HONOUR: All right. Now I am going to read out each of the individual sentences. Ultimately it will be a total effective sentence of 30 months with a community correction order at the end of 18 months.
85Because you have done, I think it is about two years and ten months' in custody, you will still be required to do about eight months.
86In respect of Charge 1, you are convicted and sentenced to a term of imprisonment of two months;
87Charge 2, seven days;
88Charges 3 and 4, three months;
89Charge 5, three months;
90Charges 6 and 7, two months;
91Charge 8, two months;
92Charge 9, one month;
93Charge 10, three months;
94Charges 11 and 12, seven days;
95Charge 13, seven days;
96Charge 14, four months;
97Charges 15, 16, 20, 21, 23, 24 and 25, four months;
98Charges 18, 19, 22, 26, 27, 28, 29, 30, 31, four months;
99Charge 32, seven days;
100Charge 33, two months;
101Charge 34, five months;
102Charge 35, three months;
103Charge 36,two months;
104Charges 37 and 38, three months;
105Charge 39, four months;
106Charge 40, 12 months;
107Charge 41, three months;
108Charge 42, three months;
109Charge 43, three months;
110Charge 44, three months;
111Charge 45, seven days;
RELATED SUMMARY OFFENCES
112In respect of summary offences, Charge 43, 29, 53 and 55 you are convicted and sentenced to a period of one month.
113In respect of Charge 102, you convicted and sentenced to a term of imprisonment of two months.
114In respect of Charge 104, you are convicted and sentenced to a term of imprisonment of seven days.
115One month of the period in respect of Charge 1, two months of the period in respect of Charge 3, two months in respect of the period in respect of Charge 5, one month in respect of the period of Charge 6, one month in respect of the period of Charge 8, one month in respect of the period of Charge 10, three months in respect of the period in relation to the sentence imposed on Charges 15 to 17, 20, 21, 23 to 25, thefts in respect of the apartment, one month in respect to Charge 33, three months in respect of Charge 34, one month in respect of Charge 35, one month in respect of Charge 36, one month in respect of Charge 37, are cumulative on the base sentence of 12 months which is imposed in respect of Charge 40.
116That should give a total effective sentence of 30 months. Did counsel get that same sum?
117MS FALLAR: Just give us a moment.
118HER HONOUR: That is all right. Yes, I have just done it again, and I still get 30 months.
119MS BURNNARD: I get 28. I might have missed ‑ ‑ ‑
120HER HONOUR: Let us go again?
121MS BURNNARD: Yes please.
122HER HONOUR: One month for Charge 1.
123MS BURNNARD: Yes.
124MS FALLAR: Yes.
125HER HONOUR: Two for Charge 3.
126MS FALLAR: Yes.
127MS BURNNARD: Yes.
128HER HONOUR: Five for Charge 2.
129MS BURNNARD: Sorry.
130HER HONOUR: Sorry, two for Charge 5.
131MS BURNNARD: For Charge 5, yes.
132HER HONOUR: One for Charge 6.
133MS BURNNARD: Yes.
134HER HONOUR: One for Charge 8.
135MS BURNNARD: Yes.
136MS FALLAR: Yes.
137HER HONOUR: One for Charge 10.
138MS BURNNARD: Yes.
139HER HONOUR: Three for Charge – you know that – the offending effectively, in the basement, so from 14 through to 31, three months.
140MS FALLAR: 15 to 25. You said, Your Honour, 15 to 25, a while ago, three months.
141HER HONOUR: Yes, yes, but – yes that is right.
142MS BURNNARD: That is it. Three months for 14 to 31, that is where I have missed.
143HER HONOUR: Yes, it is the three months, 14 to 51.
144MS BURNNARD: I see.
145HER HONOUR: Then you get to one month for 33.
146MS BURNNARD: Yes.
147HER HONOUR: Three months for 34.
148MS BURNNARD: Yes.
149HER HONOUR: One month for 35.
150MS BURNNARD: Yes.
151HER HONOUR: One for 36.
152MS BURNNARD: Yes.
153HER HONOUR: One for 37.
154MS BURNNARD: Correct.
155HER HONOUR: And then the 12 months.
156MS BURNNARD: Yes.
157HER HONOUR: All right. You have got those summary offences.
ANCILLARY MATTERS
Driver's licence orders
158In respect of the thefts of the motor vehicle and the summary matters of driving whilst suspended and the dangerous driving, your licence is cancelled and you are disqualified from obtaining your licence for a period of 24 months.
159So Mr Griffiths, you will not be able to drive or get your licence for a period of two years from today. Do you understand that?
160OFFENDER: Yes.
161HER HONOUR: And if you breach that, that would be the kind of thing that will come back towards me. You understand that?
162OFFENDER: Yes, Your Honour.
163HER HONOUR: All right. I also impose an 18 month community correction order to commence at the day of your release.
Pre-sentence detention
164I declare 662 days pre-sentence detention.
165MS FALLAR: 664.
166HER HONOUR: 664 days pre-sentence detention sorry.
Section 6AAA
167Pursuant to s.6AAA of the Sentencing Act if you had not pleaded guilty to these matters, I would have imposed a sentence of five years and six months' with a non-parole period of three years and three months;
168There are conditions on your community correction order as recommended by Corrections. They relate to the report – they are the same as the recommendations, other than the work condition Mr Griffiths. I have formed the view that the period of time that you will spend in custody is sufficient punishment aspect of your offending. This order is really designed to hope that your rehabilitation is assisted and that you are treated for the relevant issues. Do you understand that Mr Griffiths?
169OFFENDER: I do, Your Honour.
170HER HONOUR: All right, has someone got a copy of the CCO report there?
171MS FALLAR: A soft copy.
172HER HONOUR: It is all too modern for me. Thank you. All right, Mr Griffiths, there will be a supervision condition. That means that you have to attend Corrections and when they direct you to attend, you need to attend.
173There's a treatment and rehabilitation condition in respect of assessment and treatment for drug abuse or dependency.
174There is a treatment and rehabilitation condition in respect of a mental health assessment and treatment that may include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility.
175There is a treatment and rehabilitation condition regarding any program that addresses factors relating to your offending, and further, a treatment and rehabilitation condition relating to treatment and rehabilitation – no I do not need to go through that, I am sorry.
176So that is the three treatment and rehabilitation conditions, and in addition there is a judicial monitoring condition, and I will have you attend court for judicial monitoring, one month after you are released from custody.
177I am not sure what your release date will be, that is why I have not specifically put a date there, but there will be an expectation that you will attend court for a judicial monitoring one month after your release. All right? Are you prepared to enter that order?
178OFFENDER: Yes.
179HER HONOUR: All right, thank you. Is there anything else I need to do?
180MS FALLAR: Just from my end, can I just clarify just one. This is to the sentence – 18 to 31 is four months, isn't that correct?
181HER HONOUR: Sorry, I will have to go back to my – which I have put somewhere – 18 - thank you, 18 to 31 is four months.
182MS FALLAR: Yes, and 15 to 17 is four months?
183HER HONOUR: Yes.
184MS FALLAR: And then finally, in relation to the licence is that both for the mandatory and discretionary?
185HER HONOUR: Yes.
186MS FALLAR: Thank you.
187HER HONOUR: Thank you.
188MS FALLAR: The disposal order amendment, I will have my learned friend provide it to Your Honour's associate, those three items to be removed.
189HER HONOUR: All right, yes, on the disposal order. Has it already been done? Okay.
190MS BURNNARD: Your Honour, there was a difficulty – the items have two numbers. On the schedule it should be No.23 which is Item 66; No.44 which is Item 106 and No.80 which is Item 386, ought be removed. Apologies, we used the wrong wording before because there were two lots of different numbers.
191HER HONOUR: No, that is all right. I am sure my associate can sort it out. Thank you.
192MS BURNNARD: Thank Your Honour.
- - -
0