Director of Public Prosecutions v Hutchison (a pseudonym)
[2024] VCC 1800
•11 November 2024
Sentencing act
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| WILLIAM HUTCHINSON (a pseudonym) |
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JUDGE: | HER HONOUR JUDGE BLAIR | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 November 2024 | |
DATE OF SENTENCE: | 11 November 2024 | |
CASE MAY BE CITED AS: | DPP v Hutchison (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1800 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence
Catchwords: theft of motor vehicle – theft – burglary – Drug and Alcohol Treatment Court – early plea of guilty
Legislation Cited: Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic)
Cases Cited:Repac v The King [2023] VSCA 313; Gladigau v the Queen [2015] VSCA 204; Ellis v The Queen [2021] VSCA 229; Director of Public Prosecutions v Purdy [2017] VCC 1984; Kulafi v The Queen [2021] VSCA 369; DPP v Ristic [2024] VSCA 251
Sentence: Drug and Alcohol Treatment Order for a period of 46 months and licence disqualification for a period of 3 months
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Angela Liantzakis | Office of Public Prosecutions |
| For the Accused | Jason James | Marshall Jovanovska Ralph |
HER HONOUR:
William Hutchinson[1] on 24 October 2024 you appeared before me at a Determination Hearing in the Drug and Alcohol Treatment Court in relation to an indictment containing 14 charges of theft and eight charges of burglary. You were arraigned and pleaded guilty to each of the charges and admitted your prior criminal history.
[1] A pseudonym.
Circumstances of the offending
On the morning of Friday 10 March 2023, a White 2013 Mercedes Benz A Class Hatchback was stolen from a Port Melbourne address. The vehicle was used as an Uber Carshare vehicle by the owner.
At the time of the theft, a lock box containing the keys to the vehicle was affixed to the exterior. The owner was advised by Uber Carshare that the two tracking devices that were installed inside the vehicle were removed and disabled shortly after the vehicle was stolen.
In the evening of Wednesday 29 March 2023, a black 2010 Skoda Octavia Sedan was stolen from a Bentleigh East address. The vehicle was used as an Uber Carshare vehicle by the owner. The theft was reported to the police.
The two tracking devices installed by Uber Carshare were installed inside the vehicle and were operating at the time of the theft. One tracking device was removed and disabled on 3 April 2023. The second device was not removed and continued to operate. Uber Carshare were provided with details of the vehicle's real time location. This data was provided to the police.
In the early evening of Friday 31 March 2023, you were captured on CCTV at an AMPOL service station in Boronia driving the White Mercedes Benz. Although the registration was not visible it looked similar to the vehicle stolen in Port Melbourne on 10 March 2023. You filled the vehicle with petrol and paid with your NAB visa debit card - Charge 1 – theft of motor vehicle.
On Sunday 2 April 2023 in the evening, you were captured on CCTV at Coles Express Ringwood. You arrived at the service station in a black Skoda Octavia bearing cloned registration plates. You filled the vehicle with petrol and paid with your NAB visa debit card - Charge 2 – theft of motor vehicle. The location of the vehicle is consistent with GPS tracking data from the stolen black Skoda Octavia.
In the early hours of the morning 3 April 2023, CCTV and the GPS tracking data show that the black Skoda was at the Comfort Hotel situated in East Melbourne. You and your co-accused, Mr Hudson[2], were seen leaving Room 9 with two distinctive backpacks and then you were seen leaving the Comfort Hotel in the black Skoda.
[2] A pseudonym.
At approximately 4:00 am, you and Mr Hudson were captured on CCTV cameras at OMI Restaurant in Melbourne. You forced open the doors and together stole various items, including unscrewing a safe from the ground and wheeling it out of the restaurant on a trolley - Charge 3 – burglary.
The total items stolen from this Burglary, as reported by the store manager were: two EFTPOS machines; five Apple iPads; a MacBook Air; an iPhone; and a large grey safe valued at $1,300 dollars and containing $6,087.30 in cash; a small black safe valued at $150 dollars; kitchen utensils; a store key, a store card, fridge key and a trolley - Charge 4 – theft.
At approximately 4:40 am, you, Mr Hudson and an unidentified male are captured on CCTV cameras returning to the Comfort Hotel in the black Skoda and entering Room 9.
On Tuesday 4 April 2023 you are captured on CCTV at Bunnings Warehouse situated in, Bayswater. You used your NAB credit card to purchase a grey Hart wrecking bar and a pair of Mechanix gloves.
On Wednesday 5 April 2023, two FOB access passes were stolen from a letterbox attached to MGB Australia situated at 3 Newton Street, Cremorne. The building is a commercial premises that houses multiple business tenants across six floors.
In the evening of Wednesday 5 April 2023, you and Mr Hudson drove the black Skoda to Cremorne. You were wearing clothing that you bought with your NAB credit card at Chadstone earlier that day. Around 11 pm, you used one of the stolen FOB access passes to access the main entrance to the building and once inside the building, you and Mr Hudson used the internal stairs to access Hugo Boss Australia on Level 5 and Optalert on Level 6 - Charge 5 – rolled up burglary.
You are captured on CCTV at the entrance door to Optalert. You were seen to use a blue pry bar to force open the main entrance, and you and Mr Hudson entered the business. Whilst inside you stole a Del Inspiron 13 laptop, valued at $1,600 - Charge 6 – theft.
Next, you and Mr Hudson are depicted on CCTV at Hugo Boss Australia where you stole $26,218 dollars' worth of clothing and other items - Charge 8 – theft. After you left the building you were observed by a staff member from Optalert. You were seen in the street, dropping items of clothing and two satchels.
The blue pry bar you used was left behind at the scene and was located by a staff member of Hugo Boss and was later seized by Police.
On Friday 7 April 2023 at approximately 10:45 pm, you and another male are captured on CCTV cameras walking past the Hunky Dory restaurant in Balaclava multiple times. You appeared to look inside. At approximately 2:24 am, you and another male are captured on CCTV at the rear entrance hallway to Hunky Dory restaurant. Together you forced open a lock box and used the FOB access pass inside to gain entry into the side hallway of the apartment complex. Once inside, you both forced open an additional lock box situated at the back door to the restaurant and used the key to gain access inside. The items stolen from this burglary, include a metal cash tin containing $100; a metal cash tin containing $700; a brown shoulder strapped laptop bag; a black NAB business card - Charge 9 – theft.
In the early hours of Friday 8 April 2023, you and another male were captured on CCTV at the Hunky Dory restaurant in Richmond. Together you forced open a lock box from the exterior wall of the premises and used the key inside to gain access into the restaurant - Charge 10 – burglary.
The items stolen from this burglary, include a cash float containing $2,200; Friday cash donations worth $1,000; a laptop; a black safe with a number pad opening lock and; a cash box - Charge 11 – theft.
Again, in the early hours of Friday 8 April 2023 you and another male were captured on CCTV at the Hunky Dory restaurant in Templestowe in the black Skoda Octavia. Together you are seen to use a crowbar to force open the front doors, allowing you to access the restaurant - Charge 12 – burglary.
The total items stolen from this burglary, include: 1 x safe which was bolted to the cabinet beneath the POS machine; a blue metal tin; approximately $4,000 dollars cash; a set of keys with garage remote buzzer; key chain with a shoe model; a NAB bank card; a Westpac bank card; and a Commonwealth Bank card - Charge 13 – theft.
In the early hours of Wednesday 12 April 2023, a FOB access pass belonging to MGB Australia that was stolen during the burglary on 5 April 2023 was used to attempt to open the rear garage door of the Cremorne address. The access pass was denied due to being disabled since the first burglary.
You, Mr Hudson and an unidentified co-offender then forced open a lock box situated on the external wall of the building. The lock box contained keys to MillerKnoll, a business situated on the ground floor of the building. The three of you used the key from MillerKnoll to gain entrance into the business, before forcing open a shared door to gain entry into the main foyer area of the building. Together, you are seen to force entry into MGB Australia with a crowbar and are further captured on CCTV rummaging through the office for several minutes before stealing multiple items from the business - Charge 14 – rolled up burglary.
The total items stolen from this business, include; a HP EliteBook and 3 x HP ProBooks - Charge 15 – theft.
Shortly after, you, Mr Hudson and the unidentified co-offender are captured on CCTV at Nature, situated on level 3 of the building. You are seen to force entry into the premises with a crowbar. The three of you did not proceed into the business and left after a few seconds.
At approximately 4:00 am, you, Mr Hudson and the unidentified co-offender are seen on CCTV to enter Nexsys IT, situated on level 2 of the building. The entrance door was forced open with a crowbar - Charge 14 – rolled up burglary.
Once inside, the three of you are captured on CCTV entering the storeroom of the business and stealing multiple boxes of laptops, before wheeling the stolen items on a trolley and decamping from the premises. There were numerous items stolen from this business totalling at least $267,000 - Charge 16 – theft.
During this incident, a grey Hart wrecking bar that you used during the burglary was left behind at the scene and was located by a staff member and was later seized by police. This wrecking bar was the same brand and style as the one you purchased at Bunnings in Bayswater on 4 April 2023.
On Wednesday 12 April 2023 at approximately 10:40 pm, you are captured on CCTV at the Coles Express in Kensington. You are seen in the black Skoda Octavia which had different cloned number plates. GPS tracking data from the black Skoda Octavia showed the vehicle to be at Maribyrnong after the service station.
The next morning, Thursday 13 April 2023, the black Skoda Octavia was located in Maribyrnong, after the GPS tracking data was investigated. The vehicle was towed to an address in Campbellfield. At the time of the recovery, the vehicle was bearing cloned registration plates. Later that day you are captured on CCTV cameras at the Campbellfield address. Whilst there, you attempted to retrieve multiple items from inside the vehicle. You were confronted by staff members and left the scene. You dropped a mobile phone containing a Telstra SIM card number and four sets of car keys. These items had been inside the vehicle prior to your attendance.
On Friday 14 April 2023, Crime Scene Officers attended and conducted a forensic examination of the stolen black Skoda Octavia. During this examination, multiple exhibits and forensic samples were obtained from the vehicle. A sample taken from exhibit 48, a black fabric glove, was 37 billion times more likely to contain your DNA and a sample taken from Exhibit 49, a face mask was 100 billion times more likely to contain your DNA.
During a further examination of the vehicle on Saturday 15 April 2023, police located a Hugo Boss puffer jacket containing a HP computer instruction manual, a Hugo Boss bag containing assorted items and a Fiskars Pro crowbar inside the vehicle. These Hugo Boss clothing items located were stolen from Hugo Boss Australia during the burglary at Cremorne on 5 April 2023. The Fiskars Pro crowbar bears a strong resemblance to the crowbar you used during the burglary at Hunky Dory restaurant in Balaclava on 8 April 2023. A fingerprint matching Mr Hudson was identified inside the black Skoda Octavia.
On Wednesday 19 April 2023 at approximately 10:30 am, you and an unidentified associate were captured on CCTV cameras at Bunnings, in Scoresby, in a white Mercedes hatchback which strongly resembled the stolen vehicle subject of Charge 1. You were captured on CCTV using your NAB credit card to purchase multiple items from the store.
On Thursday 20 April 2023 at approximately 1:00 pm, you were observed by police driving a white Mercedes hatchback in Boronia.
On Friday 21 April 2023 at approximately 2:00 am, you, Mr Hudson and an unidentified co-offender were captured on CCTV at an address in Malvern. The premises consists of Beaumont Tiles Studio situated on the ground floor of the building, and an apartment complex on the floors above. During this incident, two external lock boxes situated outside the building were forced open, and the FOB access passes were used to gain entry into the building - Charge 17 – burglary.
Once inside, you, Mr Hudson and the unidentified co-offender are captured on CCTV in the carpark of the building and are seen to steal various boxes and a black safe containing personal documents and files, and a pair of yellow and black saddleback leather gloves and a mobile phone holder. These items were in different storage cages. You used a trolley to carry the stolen items Charges 18 and 19 – theft.
During the same incident, the three of you also forced entry into Beaumont Tiles Studio situated on the ground floor and stole 1 x HP ProBook laptop; 1 x Green and White Freitag office bag and 1 x Tan Bellroy Staple-x tote bag containing an ID card - Charge 20 – theft.
On Friday 21 April 2023 at approximately 3:00 am, you and Mr Hudson were captured on CCTV at the front entrance of an address in Toorak. Both of you are seen to force open a lock box affixed to the external wall of the building. The lock box contained a FOB access pass to the building. Approximately one hour later you and Mr Hudson reattended the front entrance of the building and gained access with the use of the stolen FOB access pass. Both you and Mr Hudson were captured on multiple CCTV cameras walking through the carpark areas and attempting to gain entry into storage rooms.
At approximately 4:44 am, Mr Hudson is captured on CCTV driving a white LDV van, he had previously hired, into the vicinity of the garage entrance to the building. Approximately 10 minutes later, Mr Hudson is seen on CCTV to carry stolen items and put them in the rear of the white LDV van, before the van is seen leaving the area - Charge 22 – theft.
On Friday 21 April 2023 at approximately 9:00 am, police attended an address in Boronia, where you and Mr Hudson were both located in the living room. You were both arrested. Located in the driveway of the address was the white Mercedes hatchback stolen from Port Melbourne and also located was the White LDV G10 van hired by Mr Hudson.
At the address, numerous exhibits related to the offending were located and seized by police. Backpacks and clothing used and worn by both you and Mr Hudson were also located and seized by the police.
On Friday 21 April 2023, multiple exhibits related to the offending were seized from the LDV G10 Van by police. These items included property stolen from the offending at Malvern and Toorak and the crowbar that you used. Other documents from Nexsys and three bank cards belonging to the owner of Hunky Dory restaurant, Templestowe, and a bank card in the name of Hunky Dory restaurant, Balaclava, were also located in the vehicle.
You and Mr Hudson were both conveyed back to Richmond police station for the purposes of a recorded interview. You both exercised your right to silence and gave 'no comment' responses in relation to questions asked by police.
On Wednesday 10 May 2023, the tracking device was seized from underneath the rear passenger seat of the black Skoda by police. On Thursday 11 May 2023, a backpack was seized from the Mercedes. The backpack resembles the backpack you wore during the burglary at OMI restaurant.
The value of your offending that the Crown were able to quantify is approximately $300,000. This figure does not represent the total quantum.
Nature and gravity of offending
Burglary and theft offences are serious as evidenced by the maximum penalty of
10 years' imprisonment. Factors that elevate the seriousness of such offences can include prolific and persistent offending, that is well planned and organised and those involving thefts of goods totalling considerable value.Your offending occurred over an 18 day period in April 2023. You committed 10 discreet incidents of burglary and theft involving mostly commercial premises. You offended generally late at night or in the early hours of the morning, on each occasion you were in company with another and used a stolen vehicle.
Charges 1 and 2 relate to the theft of Uber car share vehicles. There is no evidence that you were responsible for the actual theft of these vehicles. The prosecutor conceded at the determination hearing that the theft of motor vehicle was put on the basis that you assumed the rights of ownership of these two vehicles and had used each of them. The charge relates to a single date however it is clear that you retained and used each of the vehicles for a longer period of time. In the circumstances, I make no finding as to the level of sophistication involved in the actual theft of these vehicles.
Charges 3 and 4 occurred in the early hours of the morning, in company, you were disguised with a hooded jumper over your head and a mask. Charges 5 to 7 relate to a rolled up burglary charge in circumstances where you gained entry to one building in Cremorne, that housed several businesses. You stole from two businesses on this occasion late in the evening and you were again in company with a co-offender. Charges 8 to 13 involve the burglary and theft of three separate Hunky Dory restaurants across Melbourne. On the one night you and your co-offender targeted stores at Balaclava, Richmond and Templestowe. You used a similar mode of entry on each occasion, that is, breaking into an external lockbox to gain access to keys. Thus revealing a similar modus operandi. At one location a safe was unscrewed and taken.
Charges 14 to 16 were also committed in company, in the early hours of the morning. You returned to the same building in Cremorne, a week later. Charge 14 is rolled up and again relates to the entry of separate businesses in the one building. I consider your offending on this occasion to be the most serious of the offending before the court, by virtue of the quantum of stolen laptops and IT equipment, which totalled $267,575. Charges 17 to 20 again were committed in company at a building that housed commercial premises on the ground floor above a residential complex. You stole personal items from a residential storage cage. Charges 21 to 22 were also committed in company, this time at a residential apartment complex. On this occasion personal items were stolen. Overall the total quantum of your offending as I have said was approximately $309,700. However, this does not account for the vehicles and other items that were not able to be quantified.
I accept that in some instances there was a degree of planning and premeditation, in that you bought a wrecking bar and on other occasions you came prepared with a crowbar and an implement to unscrew a safe. However, I accept the submission of your counsel that this was not a commercial operation but rather this was offending motivated by your need to feed a significant and expensive addiction to methamphetamine.
Generally, the individual quantum of your offending was relatively modest however the theft from Nexsys IT totalled $267,000 alone. Thus, as I have said, this particular incident of offending is a serious example of burglary and theft. Further, you were on bail at the time of the offending. I assess your moral culpability as high.
Personal circumstances
You were born in Loxton, South Australia and you are now 46. You grew up in Croydon. Your mother worked in the family home and later worked in paid employment in the hospitality industry. Your father was a truck driver, who drove both locally and interstate. Your parents separated when you were aged 15. At that time, you discovered your older brother was in fact a maternal half-brother. Your mother is now in a new relationship and lives in Adelaide. Your father now lives in Healesville.
Your childhood was 'normal'; your father was strict but fair. He worked hard and your family was comfortable and you did not go without. You were given motorbikes and would travel on weekends, camping and four-wheel driving. You played football and hockey in your younger years. Growing up, your family had contact with your paternal extended family. You had less contact with your mother's family as they lived in South Australia.
Although you were closer with your father, you spent more time with your mother and it was your mother who set the rules, and it was your father who enforced them. You were not punished unreasonably and although your father had a 'big strap', he rarely used it. You contributed to family life by performing chores.
Generally, your parents got along well although there were a greater number of arguments towards the end of their relationship. You were surprised when they separated, although you recognise they are now better apart than together. There was no history of domestic violence and neither of your parents consumed excessive amounts of alcohol.
In terms of your schooling, you attended Croydon South Primary School. You did well academically and were promoted a year level in Years 2 and 4. Despite this you were somewhat hyperactive and disruptive in class. In primary school you did not get into a great deal of trouble, and you enjoyed schoolwork.
Things changed after your father left the family home. You attended Ringwood Technical School and you experienced more significant behavioural issues. It was around this time you commenced drug use. Your marks remained good, however, your attendance became problematic. You completed Year 9 but began to associate with a negative peer group. You left school and returned to South Australia where you 'went off the rails'.
There you lived with individuals who had a history of criminal behaviour. At the age of 18 you moved to Queensland, met a woman and stabilised your life. You commenced work as a kitchen hand and later undertook a chef's apprenticeship. The long work hours took a toll and in that context you recommenced substance use. This continued for a year and then you moved to Melbourne where you worked as an excavator operator for a few years. Whilst in Melbourne you enjoyed another period of abstinence and stability. You met another woman with whom you formed a long relationship. This woman was heavily involved in the methamphetamine scene and as such was not a positive influence.
You moved back and forward between Queensland and Melbourne. You were working for the same company as an excavator operator until you were shot in 2013. You had purchased a vehicle on Gumtree and went to complete the purchase, the seller was suffering a psychotic episode and shot you with a shot gun. As a result, you ended up with 70 pellets in your leg and suffered compartment syndrome. You carry significant scars running down either side of your leg. Not long after this incident you also suffered a fractured femur following an assault. In 2017, you suffered a fractured tibia and have a rod inserted along the length of your right leg. As a result, you spent some time recovering.
In 2018, you attempted to work in traffic control, but you only lasted for a month as it was too difficult to stand for long periods. You again commenced drug use, this time as a form of self-medication with methamphetamine. You used the drug so that you did not sleep as a means to avoid the 'bad dreams' that you experienced. You discovered that methamphetamine use also had the benefit of suppressing dreams when you did sleep and helped manage your pain.
In terms of your drug use history more generally, you were introduced to cannabis at the age of 15. This was around the time your father left the family home. You found it to be exciting and would smoke the drug on a weekly basis. By the time you arrived in South Australia you were using cannabis daily. This persisted until you were aged 17, when you replaced your cannabis use with the use of amphetamine. You were introduced to injecting this drug by a friend after your grandfather died. Your drug use continued until you moved to Queensland. You enjoyed a period of sobriety but later, you commenced using methamphetamines. This has been your drug of choice for many years. During your adult life you have had between five and six years of abstinence, this has been both in the community and whilst incarcerated.
Your pattern of drug use has seen you relapse shortly after release from custody, inevitably re-offend and predictably end up back in gaol. This has been the constant cycle of your adult life.
Your Queensland prior history spans from 1995 until 2009. You were dealt with for charges of burglary and were sentenced to imprisonment, partially suspended sentences, and without conviction penalty and community service. In Victoria, your prior history spans from 2005 until 2022. You have six prior convictions for charges of burglary and have been sentenced to a suspended gaol term, a community correction order and aggregate terms of imprisonment. When consideration is given to your success on appeal the maximum aggregate term of imprisonment you have received for offending involving a charge of burglary is six months. I note that your longest term of imprisonment was imposed in May 2022 when you received a sentence of 30 months with a non-parole period of one year and nine months for trafficking in a drug of dependence. Pre-sentence detention of 594 days was reckoned as served and on my calculation this sentence would have expired shortly before the current offending.
I accept that your prior convictions are relevant to an assessment of your prospects of rehabilitation, the need for community protection and specific deterrence. However, your criminal history cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offending, it is relevant to show whether the instant offending is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law.
Following your release from custody in August 2022, you largely remained abstinent from drugs, relapsing only once or twice. In April 2023, the house in which you were living burnt down and you lost everything, you struggled to cope and had to rely on friends. In this context you experienced a significant relapse into drug use. You committed the offences now before the court which resulted in your remand in May 2023.
You are currently in custody at Marngoneet Prison and describe yourself as being disgracefully comfortable in custody. You live in a six bedroom house and have a degree of autonomy within the gaol. On other occasions whilst in custody you have undertaken the 24 hour AOD program and multiple other such programs. You have also participated in Narcotics Anonymous. In the community, you have participated in drug programs mandated under community correction orders, you have had a period of success on CISP bail and in 2018 you had a very brief stay at Recovery Oz prior to it being shut down. No doubt you have gained some benefit from the programs and counselling you have undertaken in the past. However, to date you have not been able to sustain abstinence in the long term. Both the case management assessment report and clinical advisor assessment report describe you as being highly motivated, insightful and ready for change.
Lastly, in terms of your medical and mental health, at the age of 26 you developed Type I diabetes. You are insulin dependent and manage your blood sugar levels reasonably well. Around four years ago you were involved in a car accident where you injured your kneecap, and you have had multiple fractures to your arms. You are currently taking medications for cholesterol and joint mobility. At the time of the shooting in 2013, you had some involvement with mental health services, but this was not long term. In the past, you have attracted a diagnosis of Post Traumatic Stress Disorder, however currently you do not experience symptoms. Generally, you enjoy reasonable mental health.
Plea of guilty
Your plea of guilty was entered at a case assessment hearing at this court on 6 March 2024. Although you ran a contested committal the only witness cross examined was the informant and the only issue in dispute was the quantum of your offending. None of the victims were required to give evidence and the court system was spared the substantial expense and resources of a trial. In these circumstances, I consider your plea to be a relatively early one that has significant utilitarian value. I find that you have facilitated the course of justice. I intend to allow an appropriate discount for your plea of guilty.
Further, your plea of guilty is demonstrative of some remorse and acceptance of responsibility for your offending. The author of the case management assessment described that you expressed regret and embarrassment with regard to your offending and presented with a desire for change. I accept that your remorse is genuine.
Sentencing principles
The basic purposes for which a court may impose a sentence are just punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community. Principles of proportionality, parsimony and totality are also very important considerations. They require me to make sure the total sentence is appropriate to the total criminality, that the punishment imposed fits the crimes committed and that I do no more than is necessary to punish you for your offending.
Current sentencing practices are also relevant to the sentencing exercise. I was referred to several cases by the prosecution and also defence counsel. I have considered the cases of Repac, Gladigau, Ellis, Purdy and Kulafi.[3] In that regard, whilst every case must be determined upon its unique circumstances, clearly, previous sentences for offending of this type have involved substantial sentences of imprisonment where appropriate.
[3] Repac v The King [2023] VSCA 313; Gladigau v the Queen [2015] VSCA 204; Ellis v The Queen [2021] VSCA 229; Director of Public Prosecutions v Purdy [2017] VCC 1984; Kulafi v The Queen [2021] VSCA 369.
I have also considered the recent decision of the Court of Appeal in the case of Ristic, which dealt with the making of a Drug and Alcohol Treatment Order in circumstances where the period of four years was considered to be an insufficient term of imprisonment for the offending involved.[4] I note this case related to charges not dissimilar to those you now face, however there were also charges of aggravated burglary punishable by a maximum of 25 years. The respondent in that matter had previously been sentenced to very significant terms of imprisonment for similar offending in the past.
[4] DPP v Ristic [2024] VSCA 251.
Matters relevant to the Drug and Alcohol Treatment Court Determination Hearing
I turn now to matters relevant to the making of a Drug and Alcohol Treatment Order. The purposes of a Drug and Alcohol Treatment Order are to facilitate your rehabilitation, take account of your drug or alcohol dependency, to reduce the level of criminal activity associated with drug or alcohol dependency, and to reduce your health risks associated with drug or alcohol dependency.[5] Importantly, if I am considering making such an Order, I must regard your rehabilitation and the protection of the community from you, achieved through your rehabilitation, as having greater importance than the other sentencing purposes such as denunciation and general deterrence.
[5]Sentencing Act1991 (Vic) s18(1).
Having considered the criteria for the making of a Drug and Alcohol Treatment Order set out in s18Z of the Sentencing Act 1991 and having carefully considered the psychological report of Warren Simmons, assessment reports, the written and oral submissions of both your counsel and the prosecution, and the comparable cases to which I was referred, I indicated at your determination hearing that I was satisfied that it was appropriate in all the circumstances to make a Drug and Alcohol Treatment Order in your case.
On the balance of probabilities, I am satisfied that you are dependent on drugs or alcohol, and that your dependency contributed to the commission of the offences now before me. Notwithstanding the gravity of your offending, having regard to the mitigatory matters to which I have referred, and the impact of s18X(1) of the Sentencing Act1991.[6] I am satisfied that it would otherwise be appropriate to impose a sentence of imprisonment of no more than four years. Having regard to what is often referred to as the residual discretion, I am satisfied in all the circumstances that it is appropriate to make such an Order.
[6] Ibid.
My decision to impose a Drug and Alcohol Treatment Order in your case has been informed by the assessment reports provided from the Drug and Alcohol Treatment Court clinical adviser and case manager. Both have assessed you as suitable for a Drug and Alcohol Treatment Order. Case manager Harrison Suidgeest considered that you clearly understand the challenges you face in embarking on a DATO. Further, he considered you displayed heightened self-awareness, were reflective on past attempts to engage in recovery and had a strong recognition of the importance of support and the urgency of the need for change. The factors that Mr Suidgeest considered contribute to a foundation of successful rehabilitation. It is noted that you will need transitional emergency housing, and this has been arranged for you, with ongoing support incorporated in your treatment plan.
Clinical adviser Terrence Sequeria detailed your extensive drug use history and the fact that you have been heavily drug dependent. He detailed that you have had periods of abstinence but recognised that your pattern is to relapse upon release from custody. He determined that you want to move ahead and change this cycle and that a DATO would provide the structure and support to assist you with this difficult transition.
Having regard in particular to the availability of intensive supports, supervision and monitoring provided through the rigors of a Drug and Alcohol Treatment Order, I am satisfied that it is appropriate to make a Drug and Alcohol Treatment Order in your case.
Sentence to be imposed
In relation to all charges, you are convicted and placed upon a Drug and Alcohol Treatment Order (DATO). The DATO will commence today, upon your release from custody. You will be accompanied to Drug Court House by Harrison Suidgeest.
A DATO has two parts: the treatment and supervision part and the custodial part. The treatment and supervision part itself has two parts which are as follows.
The core conditions, which are that:
(a) You must not commit, whether in or outside of Victoria, another offence punishable on conviction by imprisonment during the time the Order is in force;
(b) You must attend Drug Court when required by the Court to do so;
(c) You must report to the Melbourne Drug Court House within two clear working days after the Order is imposed, and I think you are going to go straight from court to Drug Court House;
(d) You must report to and accept visits from the members of the Drug Court;
(e) You must undergo treatment for alcohol and drug dependency as specified in the Order or by the Drug Court;
(f) You must give notice of any change of address, at least two clear working days before the change, to a specified Drug Court officer;
(g) You are not to leave Victoria without the permission of the Drug Court; and
(h) You are to obey all lawful instructions and directions from the Drug Court team.
84The core conditions will operate for 46 months, or until further Order.
85The program conditions, are as follows:
(a) You must comply with the Individual Treatment Plan dated 25 October 2024;
(b) You must submit to drug and alcohol testing as directed;
(c) You must submit to detoxification or other treatments specified in the order as directed;
(d) You must attend vocational educational and employment programs as directed;
(e) You must submit to medical psychiatric and psychological treatment as directed;
(f) You must reside at accommodation as directed by the drug court team;
(g) You are not to use a drug of dependence without lawful authorisation;
(h) You are to abstain from alcohol; and
(i) You are to do or not do anything else that the Drug Court considers necessary or appropriate concerning your drug and alcohol dependency; and the personal factors that the Drug Court considers contributed to your criminal behaviour.
86These program conditions will operate for two years or until further Order.
87The custodial part of the DATO is the term of imprisonment that I would have imposed had I not placed you on a Drug and Alcohol Treatment Order, and it is a term of three years and 10 months, or 46 months, and that is made up as follows:
No Charge Sentence Cumulation 1 TOMC – Mercedes
31.03.236 months 2 TOMC – skoda
02.04.236 months 3 Burglary Melbourne Latrobe st
03.04.23Aggregate 12 months
2 months 4 Theft Omi Melbourne Central 5 Burglary rolled up Cremorne
05.04.23Aggregate 16 months 4 months 6 Theft dell laptop Optalert 7 Theft Hugo Boss 8 Burglary Balaclava
08.04.23Aggregate 20 months 6 months 9 Theft Hunky Dory 10 Burglary Richmond
08.04.2311 Theft Hunky Dory 12 Burglary Templestowe
08.04.2313 Theft Hunky Dory 14 Burglary rolled up Cremorne 12.04.23 Aggregate 30 months Base 15 Theft MGB 16 Theft Nexsys IT 17 Burglary Malvern Beaumont tiles
21.04.23Aggregate 18 months 4 months 18 Theft 19 Theft 20 Theft RJ Beaumont 21 Burglary Toorak
residential
21.04.2322 Theft Total Effective sentence: 46 months
I declare that you have served 570 days by way of presentence detention. This figure does not include today because you will be released today.
Pursuant to s6AAA of the Sentencing Act1991[7], had you not pleaded guilty but been found guilty at trial, I would have sentenced you to a total effective sentence of five years' imprisonment with a non-parole period of three years.
[7] Ibid s6AAA.
In terms of your licence, your licence will be cancelled and you will be disqualified for three months and that will run from today's date.
So having made that order you can, as I understand it, be released from the dock. William, I'll just go through a couple of things with you, so generally speaking, welcome to the Drug Court. Your status has changed in several ways and one of those is that now Mr James as a private lawyer is going to be out of the picture and there are some specialist lawyers from Legal Aid that will be present at the review hearings and they will represent you, and if there are any issues and any advice and things that you need, you will be able to talk to them. All right, so they become part of the team of Drug Court.
There is also an OPP representative and there's obviously the clinical advisers, case managers, counsellors and there's judges that are part of the team, as well. So you will find it is quite intensive and there's lots of wrap around support for you.
Now you have already met your clinical adviser and your case manager. That is Terry and Harrison who did the reports.
MR HUTCHINSON: Yes.
HER HONOUR: Yes. So you will go down to Drug Court House today and I don't know whether you will meet that person today, but you will get an alcohol and drug clinician, so someone who you are talking to about your drug use and that sort of thing and your issues that you have got. Also there will be a housing worker through the Salvation Army who will be present as well, and they will be part of the team.
So as I said, it is a therapeutic team and it is very much a team. It is important to understand and I think you probably do because I think you have got a fair understanding of what is involved just from what I have read, you come to court one time a week, your day is going to be Tuesday, so that will be tomorrow.
MR HUTCHINSON: Yeah.
HER HONOUR: And it is a weekly check in and a chat. So at other - - -
MR HUTCHINSON: So I'm back tomorrow?
HER HONOUR: Yes, you are back tomorrow.
MR HUTCHINSON: Yeah.
HER HONOUR: So other times during the week you will have appointments down at Drug Court House. You will have to do urine screens from time to time, they are supervised and necessary. And the other thing that I should tell you in terms of tomorrow is 12.30 will be the time, so you will be due here at 12.30. It won't be me, it will be Judge Higham, so you will get to meet Judge Higham and you will see in the reviews, everybody comes who is on Tuesday Drug Court, so you will see other people who are coming before the judge. They come down, sit at the table and it is very much a chat.
MR HUTCHINSON: Okay.
HER HONOUR: So you sort of talk about what's been going on, you know challenges, things that you have done good. There's rewards and sanctions and incentives and all sorts of things.
MR HUTCHINSON: Yeah.
HER HONOUR: So it's a bit overwhelming to start off with. but you'll get there.
MR HUTCHINSON: So will it be that judge every week?
HER HONOUR: Yes it will be for a while.
MR HUTCHINSON: Judge Higham.
HER HONOUR: Judge Higham. You might change from time to time, so I am likely to see you again - - -
HER HONOUR: Two critical things that I want to impress upon you. One, give it 100 per cent. You know it's a really fantastic opportunity that you have got. I think you recognise it. I think you know that you really need it and so give it 100 per cent. You know you've got plenty of support there. Use the team, all right.
MR HUTCHINSON: Yeah.
HER HONOUR: The second thing is, be honest.
MR HUTCHINSON: Yeah, I've heard that, yeah.
HER HONOUR: Okay. So if you use, be honest about it, because you can run but you can't hide, you know and it's all about honesty.
MR HUTCHINSON: Yeah.
HER HONOUR: So it's really important. So give it 100 per cent and be honest. My words of advice. Okay and I know that you appreciate that this is a critical time.
MR HUTCHINSON: A very critical time, yeah. Definitely a um a fork in the road for me, yeah.
HER HONOUR: Yes, okay. Well I wish you every success.
MR HUTCHINSON: Thank you.
HER HONOUR: And I hope that you take the right fork, yes. You've certainly got plenty of support and services around you now.
MR HUTCHINSON: It's very - it's overwhelming at the moment actually.
HER HONOUR: Yes, it is, isn't it, yes. You were pretty emotional at the determination hearing, so yes.
MR HUTCHINSON: I was just - over an 18 day period I racked up five years of my life. And that was, and that's, I was hearing numbers being thrown out and I'm thinking, and then you know it was just very overwhelming when it was done, but that really um that really spelt out the gravity of the trouble I was in and um yeah, yeah.
HER HONOUR: Yes. Well you have got the opportunity now so yes, make the most.
MR HUTCHINSON: Yeah.
HER HONOUR: As I said, Harrison is going to take you down to Drug Court House and you will get an induction. You can probably just grab a seat. We have got to get you to sign the order.
So is there any issue with the order?
COUNSEL: No, Your Honour.
HER HONOUR: No. Yes, all right, so we will get you to sign that.
All right, thanks very much to counsel. Thanks William, good luck with the order and yes, hopefully I will see you down the track and thanks very much Harrison for coming and taking him down.
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