Director of Public Prosecutions v Howell

[2021] VCC 869

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 20-01619

DIRECTOR OF PUBLIC PROSECUTIONS

v

MICHAEL HOWELL

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	25 June 2021
CASE MAY BE CITED AS:	DPP v Howell
MEDIUM NEUTRAL CITATION:	[2021] VCC 869

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	Mr Campbell (For Plea)	Office of Public Prosecutions
Mr C. Fraser
(For Sentence)
For the Accused	Mr L. Barker	Emma Turnbull Lawyers

HIS HONOUR: 

1Michael James Cameron Howell, you have pleaded guilty to six charges of theft, four charges of handling stolen goods, one charge of the offence of recklessly exposing an emergency worker to risk, one charge of prohibited person possessing a firearm and two charges of possession of a drug of dependence.  You also pleaded guilty to half a dozen uplifted summary matters.  In respect of those I will simply on the charge of possess ammunition convict and discharge.  On the other charges there will be an aggregate of six months, so I will be making just a little bit of that cumulative.

2You pleaded to a settled indictment and you must get the benefit of that.  You are still only 22 years of age and as I understand you were 21 years of age at the time of the offending.  I accept that you now at least profess appropriate remorse and you must get the utilitarian benefit of that plea of guilty.

3For one, it saves a significant number of people having to give evidence at a trial; and, secondly, because of the situation involving the pandemic and the stress that the court lists are under, you should be given significant value for that as well. 

4You do have a significant criminal history.  Even your counsel described it as an 'unfortunate criminal history'.  You have many prior findings of guilt for dishonesty; there was a matter of dangerous driving and that type of thing.  What has happened here is a period of time in which you have offended in all the various ways that you have offended before but to a much more significant extent.

5A summary of the offending is difficult to do, but I will do it as briefly as I can.  I would simply point out that the Crown opening was an exhibit and is therefore available.  I do not propose to annexe it, because it does not ever happen.  So I will simply be as brief as I can.

6In August 2019 a black Audi motor vehicle was stolen in Alfredton.  Between 14 September 2019 and 15 September 2019 an aggravated burglary was committed at an address in Brown Hill and the keys to a Mazda were stolen.  That vehicle was also stolen from the address.  On 30 September 2019 a burglary was committed in Ballarat and the offenders forced entry into the residential home.  A large amount of property was taken along with the car keys to a red Volkswagen. 

7That is simply the background as to where the various vehicles came from.  I am not going to try and collate all that, that is far too long. 

8The first incident to which you have pleaded is on 11 September 2019 and that involves the theft of the audio.  What occurred there was that an off-duty policeman was sitting at a lookout and observed two vehicles parked facing each other.  One of them was the Audi which you had stolen and you were recognised as the person sitting in the driver's seat of that car.  When he walked past you apparently you said, or he thinks you said, 'Copper'.

9In any event sitting inside that Audi was an unidentified female.  CCTV footage subsequently shows you driving that vehicle again in Kline Street in Canadian.  That gives rise to the charge of theft of the Audi.

10The next incident, 18 September 2019 and the theft of the Mazda and handling stolen goods.  On 18 September you parked the Mazda outside a milk bar in Delacombe and CCTV footage shows you driving it.  There were stolen New South Wales registration plates on it and it was parked outside the milk bar.

11On 9 October 2019 a warrant was executed at your address and various cards were found belonging to a Ladesha Bucknall, which had been stolen from her residential during an aggravated burglary.  That gives rise to Charge 4, handling stolen goods.

12On 9 and 10 October 2019 a motor vehicle in Daylesford was broken into. The front passenger side window was smashed and a bag containing rope was stolen.  On the same night at a guest house or outside a guest house a Nissan Patrol vehicle had its driver's side window smashed and a Kapture dashcam was stolen from within it, along with some coins.  Your fingerprints were located in the vehicle.  On the same night a red Hyundai was rummaged through and a Garmin GPS was stolen.  That was also parked at that guest house.

13On 20 October 2019 at approximately 12.30 am police were responding to a noise complaint in Ballarat.  They sighted the Audi being driven by you as they drove around a roundabout and it was travelling east when it was sighted.  Believing this to be the same as an Audi sighted earlier in the night police conducted a U‑turn and parked the vehicle lengthways across a Court, blocking the exit of your car.  It now appeared to be parked with its lights off at the end of the court.  The driver in the police car and his passenger exited the vehicle and began walking towards you.  You were in the driver's seat of the vehicle approximately 50 metres away.

14When you saw police arriving you turned on your high-beam headlights and you accelerated past at great speed.  The two police officers ran back to the police vehicle and one of them reversed to get out of the way to avoid a collision with you.  You were approximately 15 metres from the police vehicle, I find these distances and speeds a bit hard to believe, but anyway you were travelling approximately 50 kilometres an hour when you went past the passenger side of the vehicle.

15Your vehicle was less than a metre in front of the police vehicle when it passed and two wheels of your vehicle mounted the gutter as it passed.  Both police members stated they were in fear for their own safety during the incident.

16A short time later police again tried to intercept you.  They observed you swerve into the right-hand lane between two taxis and you turned your headlight off and continued west int Sturt Street in Ballarat.  Police pulled over due to your erratic driving and last sighted you travelling southbound on Learmonth Road.  At the time of that offending the vehicle you were driving had stolen registration plates on it and that gives rise to Charge 7, handling stolen goods.  Charge 6 on the indictment is the placing police officers at risk.  In my view it is a prolonged example of a calculated decision. 

17Your counsel in the submissions said it showed skilful driving.  In my opinion it showed very lucky driving.  There is a distinct difference.  In any event that is the most serious of these charges by some distance I think and that will be the base sentence.

18On 23 October 2019 a Toyota had its front passenger-side window smashed.  A small leather wallet was taken and the bankcards were stolen.  Sorry, you also - I am not quite sure how this works out.  There is the theft of a Volkswagen involved in all that as well.  You then subsequently stole diesel.  That gives rise to Charges 8, 9 and 10. 

19When you were arrested by police sometime later there were a couple of drugs found in your possession.  There will be virtually no penalty for those.  The real significance is Charge 11, which is prohibited person possess a firearm.  You were found in fact with a sawn-off 12-gauge shotgun which had been stolen or burgled not all that long ago.  That sawn-off 12-gauge shotgun was in the driver's side door of the car that you were driving.  There was also 23 12-gauge shotgun cartridges and one empty 12-gauge shotgun cartridge.  I have already indicated there were drugs found as well.

20Sawn-off shotguns are a very, very dangerous implement and the courts have to give sentences which show the denunciation of their possession.  It was again said during the course of the plea there is only one purpose of a sawn-off shotgun and that is to shoot people or make them think they are going to be shot.

21There were a number of other matters related to all this which I do not think I need to go into the detail of.  You made a partial no comment record of interview.  You had with you items - the police alleged were drugs were in fact drugs.

22You have now served 610 days in custody.  The submission on your behalf was that that would be sufficient.  In my view it is sufficient for a minimum term.  Effectively that is what I will be doing.  I have had you assessed for a CCO and you have been found somewhat surprisingly to be acceptable for that, having breached CCOs in the past.  But I think that the immediacy and the intensity of a parole disposition is better for the purposes of I think yourself and also the protection of the community.

23I have read the victim impact statement in front of you from the lady whose motor vehicle was stolen.  In fact they had put a baby seat in the car, which obviously caused her great distress and violated her sense of space.  This is what happens when often motor vehicles are stolen or houses are broken into.  I take that victim impact statement into account in passing your sentence.

24It calls for the application of general and specific deterrence in the normal course of events.  It calls for denunciation and appropriate punishment.  As I have already indicated, there has to be an element of community protection.

25Whilst you are still very young, this is the sort of offending that ends up with very, very serious consequences if things go wrong.  And I think I have indicated in the end a gaol sentence of significant proportions plus an opportunity for parole at a significantly earlier time than might otherwise be the case is the appropriate disposition.

26Your counsel provided me with very detailed submissions as to your personal circumstances and the like.  A number of documents were tendered on your behalf.  I do not think I need to refer to each individually. 

27The thrust essentially of the submissions, and I accept this having read the reports obviously, is that you were the only child of a relationship between your mother and your father.  That relationship was of a short duration.  It was marked by domestic violence perpetrated by Mr Conroy, that is the father, upon your mother and later upon you.  When you were still a baby your mother left him and went to another premises and she developed either at that stage or earlier a significant drug addiction.

28Her drug addiction was so bad that her parents thought it preferable that you were placed into custody of your natural father from the age of three.  To be fair, that was a disaster for you during that period of time.  He would beat you; those beatings were brutal and included kicking, punching, belting and hitting you with electrical cords and you were given in the way of parenting.  You were left to feed yourself, to get yourself to school and your natural father played no part in all that.

29You then would on occasion, when you were a child, run away from home to your maternal grandparents' home and your grandparents, now both deceased, would endeavour to feed you and take you to school.  At the end of all this you had minimal education.  You found schooling difficult.  You realistically did not get past the age of - sorry, you did not get past the age of 12.

30Ultimately your mother ceased drug use and you resumed residing with her.  She commenced a relationship with a new man and two further children were born living on a 300 acre property outside of Gordon and from the age of 12 you worked on the property.  When you were 16 or 17 you finished a roof plumbing apprenticeship and persisted with that for about eight months but found the work difficult and the education even more difficult.

31Around that time you commenced using drugs, were introduced to cannabis and at around 16 introduced to ice.  At the time of your arrest you were using around about 1.5 grams of ice per day, I am told and accept.  You also at around about the time of your arrest consumed vast quantities of Jack Daniels and coke.  Obviously - well, cocaine, that obviously - maybe it's not cocaine.  Jack Daniels and Coke, it is Coca Cola.

32MR BARKER:  It's Coca Cola, Your Honour.

33HIS HONOUR:  All right, yes.  Take the cocaine out.

34MR BARKER:  Pre-mixed drinks, Your Honour.

35HIS HONOUR:  I understand.  I don't use them.

36MR BARKER:  They don't tempt me either, no.

37HIS HONOUR:  All right.  You do maintain a cordial relationship with your mother and four half-siblings.  Sadly your mother would appear to have continued on with drug addiction.  She has recently finished another stint in rehab and is presently living in Gippsland.  You remain on good terms with your father's subsequent wife and you propose living with her and your half-sisters when you are ultimately released from custody.  You wish to have nothing to do with your father and that is very understandable.

38Of real significance in your particular situation is that at the age of 18 the circumstances are that you have now been given a certificated intellectual disability.  NDIS have become interested in your case and a number of reports and material has been provided from them.  You are under the circumstances where a proposition has been put by Mr Johnson from Mindful Innovative Action, which I am sure can fit in with what the Parole Board will do.  I will briefly go to that.

39A mild intellectual disability is the actual description.  I think that does not - various decisions such as Muldrock.  That does not accurately reflect it.  The circumstances are that when you were about 18 or 19, in that order, you were found to have an IQ of 59 - 58, which is low indeed.  I realise that you probably understand little of what I say to you and those reports are tendered and will remain on file.  Anybody who wishes to read them can do so.  I don't think there is any value in me embarrassing you by going through all that.

40Those reports are very helpful in terms of what they say.  They give simple examples of someone with your difficulties.  You want to work.  For example, you said to the people there that you wanted a job, but you said it had to be well payed, preferably cash in hand.  The realities of that may not be quite what you expect, Mr Howell, but you will just have to see how you go.

41The recommendations made by NDIS, and I accept that there is - well, I hope they will - is trauma informed therapy for your substance abuse, allied health support.  I have indicated you were out of school by the age of 12.  You are functionally illiterate.  It makes it extremely difficult for anybody to function.  You might get street smarts out of that, but it does not help in terms of trying to get education and such things.

42They also want you to do one-on-one support worker engagement to try and teach you how to do preferred activities, try and teach you how to garden and cook, things like that.  You are currently mowing the lawn using a ride-on lawnmower and that is an activity that you enjoy and feel that you are good at.  It is going to be important for you I think to have an NDIS worker who could work closely with you and give you confidence in terms of being able to realise it does not involve crime or risk-taking.

43They recommend that support should be provided to you to explore new accommodation for you.  They regard the living with your sister's mother seems a short-term option and have concerns about you becoming involved into their social network, which could lead to failure.

44They point out that you have never had any formal psychological assessment as an adult and want to do so.  I have no doubt that the level of understanding that you show, as I have just indicated a moment ago, may well outweigh the actual capacities that you in fact have.  They want to assist you to live independently, get employment and increase your overall quality of life.  They want you to be reviewed for ADHD treatment options. 

45Those matters are not only in terms of helping you to enjoy and have a worthwhile and law-abiding life but also in terms of the community.  Obviously cases such as Toumngeun and the like say that if you can be rehabilitated and stopped from offending the community will be very much advantaged by that.  Your counsel pointed, and I agree, at your age if you start getting long sentences you are going to become institutionalised and that is of no benefit to anybody.

46Your personal circumstances in terms of your background as well as your intellectual disability in my view bring into play cases such as Muldrock, parts of Verdins. There is now a delay of 18 months which, at your age, is very significant.  You have been in custody during the COVID pandemic, which means you have been unable to do courses to try and improve your literacy.  You obviously have been unable for significant periods of time to have visits and they are all matters that I take into account on your behalf.

47The prospects of you rehabilitating I think are probably going to depend on NDIS.  The risk of you reoffending, if they can assist, will be significantly reduced.  As it stands at the moment it is probably high.  The situation even if they can make sure that there is some sort of reoffending, which is not unusual for someone with your disabilities, at least it is not at the level of all this.

48The report of Mr McKinnon and various other reports, NDIS documents, and the report of Mr Johnson which I referred to before, I have taken all those into account.

49They are pretty much the matters in your situation that need to be dealt with.  There are a significant number of victims and accordingly there has to be an amount of cumulation albeit moderate in relation to each of those victims.  And while sometimes these sentences can be effectively rearranging deckchairs, rather than give an aggregate, particularly because of the driving involving the police, which I take a very dim view of, I will give individual sentences.

50On Charge 1, six months; Charge 2, six months; Charge 3, four months; Charge 4, four months; Charge 5, four months; Charge 6, that is the driving at police, 15 months; Charge 7, four months; Charge 8, six months; Charge 9, two months; Charge 10, two months; Charge 11, the sawn-off shotgun, 12 months; Charge 12, one month concurrent; Charge 13, convict and discharge; Charge 14, four months.

51On Charge 1, licence cancelled, disqualified for three months; Charge 2, the same; and Charge 8, the same.  On Charge 6, and I am pretty sure I have got this right, gentlemen, licence cancelled and 24 months' cancellation.

52MR BARKER:  Yes, Your Honour.

53HIS HONOUR:  That will all be concurrent, so it will work out to 24 month, all right?  I cannot backdate that, as I understand it, so that will be unfortunately in his situation from today.  I realise that that does make it difficult, if he can get a licence, gaining employment.  There is nothing I can actually do about that.  They are virtually mandatory minimums, I would have thought.

54All right, two months of the sentence on Charge 1, two months of the sentence on Charge 2, one month of the sentence on Charge 3, one month of the sentence on Charge 4, one month of the sentence on Charge 5, one month of the sentence on Charge 7, two months of the sentence on Charge 8, one month of the sentence on Charge 9, one month of the sentence on Charge 10, six months of the sentence on Charge 11 and one month of the sentence on Charge 14 to be served cumulatively upon each other and upon the sentence imposed on Charge 6.

55In terms of the indictable matters that gives an effective sentence of 34 months.  I direct that two months of the six-month aggregate be served cumulatively upon that, which is a total effective sentence in this sentencing process of 36 months.  Because of your disability, because of the need for supervision and the general protection of the community as well as yourself, I direct that you serve a minimum term of 20 months before becoming eligible for parole. 

56It will be up to the authorities as to whether they determine that has been concluded.  I suspect that they will, but (indistinct) take into account. 

57All right.  I direct that 611 days be reckoned as having been served under this sentence.

58MR FRASER:  Ten.

59MR BARKER:  Six-ten.

60HIS HONOUR:  Sorry, 610 - I changed it once but not in the spot that mattered, 610 days.  Section 6AAA, but for your plea of guilty, which is problematic because it was a settled indictment, I would have sentenced you to imprisonment for a period of four and a half years with a minimum term of three despite your age. 

61MR FRASER:  As Your Honour pleases

62MR BARKER:  As the court pleases.

63HIS HONOUR:  You're all happy with the orders that have been made. 

64MR BARKER:  Thank you, Your Honour.

65HIS HONOUR:  Nothing else needs doing?

66MR BARKER:  No, Your Honour.  Could you repeat the sentence for Charge 14, please?

67HIS HONOUR:  Four months with one month cumulative.

68MR BARKER:  Thank you. 

69HIS HONOUR:  All right.  Yes, I'll just leave the Bench and give you chance to talk to him.

70MR FRASER:  Thank you, Your Honour.

71MR BARKER:  Thank you, Your Honour.  May I be excused?

72HIS HONOUR:  Yes, of course.  Thanks.

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