Director of Public Prosecutions v Jones
[2021] VCC 121
•17 February 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-01044
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ISAIHA JONES |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 October 2020 | |
DATE OF SENTENCE: | 17 February 2021 | |
CASE MAY BE CITED AS: | DPP v Jones | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 121 | |
REASONS FOR SENTENCE
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Subject:Criminal law – sentencing – multiple charges on the Indictment aggravated burglary– theft - attempted theft – burglary - attempted burglary and armed robbery – Aboriginal offender- genuine participation in Koori Court sentencing conversation – youthful offender – rehabilitation prospects – sentence of youth detention imposed.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms A Harrold | Abbey Hogan, Solicitor for Public Prosecutions |
| For the Accused | Ms S Wendlandt | Hillary Russell |
HER HONOUR:
1 Isaiha Jones, you have pleaded guilty before me to 36 charges on the indictment comprising 16 charges of theft, seven charges of aggravated burglary, seven charges of attempted theft, two charges of burglary, two charges of attempted burglary and two charges of armed robbery.
2 In addition, a summary charge of trespass was transferred pursuant to s145 of the Criminal Procedure Act 2009 and you pleaded guilty to that charge.
3 This spree of offending took place over a two-week period in March 2020 and the 37 offences were committed throughout the greater Geelong Region.
4 Your offending is serious and that is reflected in the maximum penalties that are prescribed by law for these offences and those penalties are as follows: theft, burglary, 10 years’ imprisonment; aggravate burglary, 25 years’ imprisonment; attempted theft, 5 years’ imprisonment; attempted burglary, 5 years’ imprisonment; armed robbery, 25 years’ imprisonment; and trespass, 25 penalty units or imprisonment for 6 months.
Koori Court participation
5 On 19 October 2020, your matter proceeded as a plea hearing in the Koori Court Division Melbourne. A sentencing conversation was held between yourself, Aunty Faye Muir and Aunty Yvonne Luke, Elders and Respected Persons.
6 You volunteered to have your matter proceed in the Koori Court Division. You were open and frank in your discussions with the Elders, both of whom challenged you about your offending behaviour. Both elders were appalled by your behaviour. Some of the offending concerned you violating the sanctity of peoples’ homes with a total disregard for their sense of safety and security. You entered homes to obtain vehicle keys that you then would use to steal various vehicles.
7 Your offending was on Wathaurong country and your actions are contrary to what is expected by the elders of that country. You have been brought up on Wathaurong country by elders and know what you did was wrong. They were both disappointed that you have not taken that knowledge and respect given to you by the elders.
Circumstances of the offending
8 I shall proceed to sentence you on the basis of the Summary of Prosecution Opening dated 14 October 2020 that was tendered at the plea hearing.
9 The 37 offences relate to a set of 18 incidents.
Incident 1
10 On 10 March 2020 you were a passenger in a vehicle that was stolen at approximately 3:50am by a co‑offender, Jack Hall, from a residence in Lovely Banks. At 4:40am on that same day, you were a passenger in the stolen vehicle with two unknown co‑offenders and attended at the APCO Service Station, North Geelong. (Charge 1, theft of motor vehicle)
11 You filled the vehicle with $63.75 worth of diesel before returning to the rear passenger seat and then the vehicle was driven away without paying for the diesel. (Charge 2, theft)
Incident 2
12 On 8 March 2020, a vehicle belonging to Joanne Doye was stolen by unknown offenders from an address in Barwon Heads.
13 At approximately 6:00am on 10 March 2020, you attended the Caltex Service Station, Corio as a passenger in that stolen vehicle and an unknown co‑offender was driving. (Charge 3, theft of motor vehicle)
14 You filled the vehicle with petrol worth $61.29 and then returned to the vehicle which was then driven away without paying for the petrol. (Charge 4, theft)
Incident 3
15 On 14 March 2020, an Audi A5 vehicle belonging to Scott Sleep was entered by you whilst it was parked in the owner’s driveway. You discovered a spare key in the glove box which you used to start the vehicle. You then lifted the motor of the nearby electric gates off its tracks, pushed the gate open and drove the vehicle away. The vehicle was valued at $16,000. (Charge 5, theft of motor vehicle)
Incident 4
16 You drove the stolen Audi to the Anglesea area with co‑offenders Max Mrsic, Rohan Stuart and Jasmine White. You stopped the vehicle upon sighting a Mercedes Benz sedan that was parked in the driveway of 25 Parker Street. You got out of the vehicle and entered the front door of the residence. The occupants were asleep inside at the time and did not wake. (Charge 6, aggravated burglary)
17 Once inside, you propped open the front door and walked into the kitchen area and found the keys to the Mercedes Benz. You stole the vehicle keys together with two Apple iPads that were in the lounge room area. (Charge 7, theft)
18 You then used the stolen keys to enter and steal the Mercedes Benz sedan parked in the driveway. The vehicle was valued at $80,000. (Charge 8, theft of motor vehicle)
19 Your co‑offender, Jasmine White, then got into the driver’s seat of the Audi accompanied by two other offender’s and drove along Parker Street at a fast rate of speed before merging onto Harvey Street. You followed behind in the stolen Mercedes. White lost control of the vehicle along a sweeping bend and crashed rendering the Audi undriveable. All three co‑offenders then got into the stolen Mercedes that was being driven by you and left the area.
20 The two Apple iPads taken from 25 Parker Street were thrown from the Mercedes as was a doona in a plastic cover. You drove the stolen Mercedes back to the Geelong area where you dropped all co-offenders home. You dumped the Mercedes in Bonang Court, Corio, where you locked the vehicle and walked home. The vehicle was later recovered and returned to the owner by police.
Incident 5
21 In the early hours of the morning of 18 March 2020, you attended a residential address occupied by Elizabeth Duka and her family in Highton. Ms Duka and her husband and children were asleep at home. You entered the premises and located a set of car keys. (Charge 9, aggravated burglary)
22 At 5:40am Duka heard a strange noise coming from the entrance to her home and went to investigate. She found her front door wide open and saw her car, a Volkswagen Passat, being reversed out of the driveway driven by you. (Charge 10, theft of motor vehicle)
23 Duka went back inside to tell her husband what had happened and noticed that her handbag, which had contained the keys to the car along with assorted other property, was missing. She checked her other vehicles and noticed that the glove box of a white Toyota Corolla in the driveway was open and the contents had been rifled through. (Charge 11, attempted theft)
24 At 6:45am later that same morning, you drove the Volkswagen Passat to the BP Service Station, Lovely Banks where you filled the vehicle with $40.35 worth of petrol and drove away without paying. (Charge 12, theft)
Incident 6
25 In the early hours of 20 March 2020, Cristelle Gilmour was asleep at her home in Wallington together with her husband and three children. She woke to the sight of headlights shining through her bedroom window. She heard a sound. She sat up in bed and could see that her front door was open. She then saw your silhouette walking slowly through the front door. You were carrying a torch. When you were only a few steps inside the house she screamed, causing you to flee. She immediately called police. (Charge 13, aggravated burglary)
26 Police attended at which time Cristelle and Fraser Gilmour realised that their vehicles, a Toyota Kluger and an Audi, had been rifled. Crime scene officers located your fingerprints in the Audi. (Charges 14 and 15, attempted theft)
Incident 7
27 At 3:00pm on 20 March 2020, Elizabeth Stojanovski was home alone in Bell Post Hill. You and a co‑offender, Connor Kennedy, attended the property driving the stolen Volkswagen Passat. You parked opposite the house and approached the front door whilst Kennedy initially remained in the car. He joined you approximately two minutes later and together you kicked the front door until you succeeded in smashing the glass on the door and then entered the property. (Charge 16, burglary)
28 Stojanovski on hearing the sound of smashing glass thought it was her husband. She called out to him but there was no response, so she went to investigate. As she approached the front door, she saw both you and the co‑offender standing in the hallway of her home. When you saw her, you both fled and drove away in the Volkswagen Passat.
Incident 8
29 A short time later you attended another residence in Belmont and the owner of that residence, Mark Whitemore, was not home at the time of your arrival. He returned at 3:30pm and saw the Volkswagen Passat parked out the front of his property with one of its doors open. He saw you walking away from the front door of his residence. Once you noticed him, you got into the vehicle and left. He then inspected the front area of his house and noticed that, although the front door had been pushed in around the frame, you had not been able to gain entry. (Charge 17, attempted burglary)
30 Whitemore noticed that his Nissan vehicle that was parked in the driveway had both its front doors open and, although the vehicle had been rifled through, nothing was taken. (Charge 18, attempted theft)
Incident 9
31 Later the same day at approximately 4:15pm, you and Kennedy were walking together in a laneway in Newtown. You tried unsuccessfully to open the front passenger door of an unattended Citroen sedan. This was captured on CCTV. (Charge 19, attempted theft from motor vehicle)
32 A short time later, Andrew Barlow heard a vehicle loitering in the laneway behind his house. He saw you seated in the driver’s seat of the Volkswagen Passat.
33 Kennedy, your co-offender, was attempting to open the garage of a nearby property. Barlow yelled out to you both, following which you both fled in the Passat. (Charge 20, attempted burglary)
34 Barlow then knocked on the front door of the nearby unit, but no one was home. He attended another unit and found that the front door was wide open. CCTV footage across the street depicted you and Kennedy entering that property. (Charge 21, burglary)
35 You had both walked upstairs in the property and had stolen a Chanel handbag, a leather handbag, a set of Bose headphones, medication and spare keys belonging to Susan Ray. (Charge 22, theft)
36 Your fingerprints were subsequently located at the point of entry and inside Ms Ray’s residence.
Incident 10
37 At 5:30pm on 20 March 2020, you and Kennedy attended a home in Newtown in the Volkswagen Passat. You exited the vehicle and went over to an Audi that was parked in that property’s driveway. You opened the driver’s door and signalled to Kennedy to join you. You both rifled through the vehicle and stole a wallet containing $100 cash as well as identification and bank cards. You took the vehicle’s spare key and a garage remote. (Charge 23, theft)
Incident 11
38 At approximately 8:00pm on 20 March, Anthony Burton and Aiden Pyle were walking along Princess Road, Corio. Both Burton and Pyle were aged 15. You approached Burton and Pyle in a vehicle. You and Kennedy both got out of the vehicle. Kennedy asked Pyle for his shoes, whilst you asked Burton for his phone. Burton replied he did not have a phone. You then pulled a knife out of your pocket and told him to hand over his phone, which he did, a white Apple iPhone 8. (Charge 24, armed robbery)
39 You then asked him for the password to his phone. He responded, “Please don’t”. You both returned to the vehicle and drove off. You returned shortly thereafter and whilst holding the knife out again screamed at Burton for the password to his phone. You then drove away again. Burton and Pyle then walked to Burton’s residence where the matter was reported to police.
Incident 12
40 Approximately 10 minutes later, Cameron Taylor was riding his bike on Moreland Drive, Corio. A vehicle pulled up beside him. You were driving. You leant out of the driver’s window and shouted “Oi”. Taylor recognised you as the driver as you had previously been at school together. Kennedy got out of the car and made his way towards Taylor. Kennedy pulled a knife out of the front pocket of his jumper which was about 20 centimetres in length and had a black handle. He pointed the knife at Taylor and said, “Just hand the stuff over, the phone and North Face vest”. Taylor gave Kennedy his mobile phone and then Kennedy asked him for the PIN code, which he provided. (Charge 25, armed robbery)
41 You then told Taylor to take off his vest. Kennedy came towards Taylor and pushed the knife against his stomach. Taylor tried to take the vest off, but Kennedy told him that he would take it off him. Taylor froze whilst Kennedy took the vest off. Kennedy then got back into the vehicle and you both drove away. Taylor rode his bike to a nearby property and reported the matter to police.
Incident 13
42 On 21 March 2020 at 7:24am, you and an unknown co‑offender attended a home in Manifold Heights, being the residence of Robert Ercoli. The garage door to the house was open and Ercoli’s Land Rover was parked inside (visible from the street). You walked into the garage, searched through the Land Rover but did not take any items. (Charge 26, attempted theft) You then left the scene in a vehicle which was parked nearby.
Incident 14
43 At about 8:00pm that same day, you attended 16 Christie Close, Jan Juc. Shane and Janette Close were home serving dinner upstairs in their residence. They both heard a loud smash prompting Shane Close to run downstairs where he discovered that the front door to his property was wide open and a panel of glass in the doorway had been smashed. (Charge 27, aggravated burglary)
44 He ran outside and saw his wife’s BMW vehicle being reversed out of the driveway by you. He gave chase but you were able to get away.(Charge 28, theft of motor vehicle)
45 He then discovered that you had entered the property and taken the keys to the vehicle which were located on a key holder by the door. In addition, you took the keys to their house and another property they owned. He also ascertained that a second vehicle parked in the driveway had been entered and rummaged through. Your fingerprints were located on the driver’s side door of this vehicle. (Charge 29, attempted theft)
Incident 15
46 On 22 March 2020 at 1:00am, Adrienne Stephens and Tufan Chakir were asleep upstairs in their home in Geelong West. Stephens woke on hearing the sound of a nearby car door closing. She looked outside and saw that the interior light in Chakir’s vehicle, a Mercedes coupé, was on.
47 She told Chakir his car was being stolen. Chakir looked outside and saw the car being reversed down the street. They both ran downstairs and saw that their front door and security gate were wide open and the keys to the Mercedes had been taken from a bench inside the house. (Charge 30, aggravated burglary and Charge 31, theft of a motor vehicle)
48 You and your co‑offender, John Taiseni, were identified from CCTV footage of the incident.
Incident 16
49 At 3:15am on the same morning, Tovey Ekstrom, Wesley Touzel and their children were asleep at their home in Herne Hill. They woke to a loud smashing noise. They ran downstairs and saw a glass sliding door, which exits onto their driveway, had been smashed. They found a grey brick inside the house that had been used to smash the glass and enter the property. (Charge 32,Aggravated burglary)
50 Ekstrom noted that her car keys were missing together with her handbag in which the keys were contained. The handbag had been sitting on a table next to the sliding door. She and Touzel then heard and saw their Audi station wagon reversing down the driveway and being driven away. The vehicle was valued at $10,000. (Charge 33, theft of a motor vehicle)
Incident 17
51 At approximately 4:30am on 21 March 2020, Brittany Groot and Joshua Gall were at their home in Corio. Gall was having a cigarette in the garage when he heard a car idling outside. He returned inside his house and then heard his partner’s car starting outside. He ran out the front door that was open. Upon looking outside, he saw you seated in Groot’s red Kia Rio. You had obtained the keys to the car from inside their property. (Charge 34, aggravated burglary)
52 He ran over to the car and tried to enter the passenger’s door; however, you reversed the car and drove away. The vehicle was valued at $5,000. (Charge 35, theft)
Incident 18
53 On the morning of 23 March 2020, Elise Purkis and Liam Fenaughty woke to discover their Ford Ranger had been stolen in the early hours of the morning. You stole the vehicle that was valued at $30,000. (Charge 36, theft of motor vehicle)
54 At approximately 2:30am that same morning, Mikarla Villarosa woke to discover that her phone had received a notification from her “Ring” doorbell. The notification indicated someone was present at her door. She checked the footage from the front door camera on her phone and observed two males, one of whom was you, standing at the front door. You and the co‑accused ran away upon sighting the camera in the doorbell. (Summary Charge 40, trespass)
55 You were eventually arrested on 23 March 2020. After being cautioned, you were asked by police where some of the stolen vehicles were and you said, “If you look around the corner, maybe you’ll find one of them.”
56 Police drove around the nearby streets and located the Ford Ranger referred to in Charge 36, Incident 18.
57 You were taken to Geelong Police Station but declined to participate in a record of interview.
58 You were subsequently interviewed on 4 June 2020 following the discovery of your fingerprints on a glass vase inside 25 Parker Street, Anglesea. You made full admissions to Charges 5 to 8. You were not interviewed in respect to the other offences. I have taken into account in your favour that you were co-operative with police and made admissions.
59 Your offending has had consequences. Victim Impact Statements were read to the Court from Tufan Chakir, Janette and Shane Close as well as Elizabeth Duka.
60 Mr Chakir speaks of his loss of sense of peace and security.
61 Janette and Shane Close feel violated and state that your actions have changed their lives forever. In addition, they were severely inconvenienced by your actions.
62 Ms Duka speaks of being traumatised and feeling unsafe at home and in addition she was inconvenienced by the thefts.
63 No other Victim Impact Statements were filed, but common sense dictates that everyone who has been impacted by your offending would have been upset and severely inconvenienced.
64 Isaiha Jones, your offending was brazen and is deserving of strong condemnation. This two-week crime spree shows that you were acting impulsively without any regard for the serious impact that your crimes had on the victims.
65 When you were arraigned, you admitted your prior criminal history. There have been 12 attendances at Court over the period from 10 April 2017 to 6 March 2020. Your history of offending reflects a consistent pattern of offending since you were 17 years of age.
66 There are several attendances at the Geelong Children’s Court. Over the years you have been extended a considerable degree of leniency by the Courts. You have received a variety of dispositions designed to support you . You breached a probation order (2017) and a Youth Supervision Order (2017). In 2018, you breached those orders such that you were then detained in a Youth Justice Centre (2018).
67 Your past offending reflects a similar pattern to that involved with the present charges.
68 It is both troubling and concerning that the offending commenced four days after you were released from custody on a Community Correction Order. In addition, you were also subject to a separate Community Correction Order from an earlier Court appearance.
69 On 8 July 2019, you were placed on a Community Correction Order for 15 months following convictions being recorded at Geelong Magistrates’ Court in respect to contravening a Family Violence Final Intervention Order, unlawful assault, recklessly causing injury, wilful damage of property, burglary, theft, attempt to commit indictable offences, aggravated burglaries and commit indictable offence whilst on bail, as well as driving whilst disqualified.
70 On 6 March 2020, you were placed on a Community Correction Order for 18 months for multiple charges of theft of a motor vehicle, intentionally destroy property, theft, commit indictable offence whilst on bail and contravene conduct condition of bail.
71 The fact that the offending was in contravention of two Community Correction Orders reflects poorly on your rehabilitation prospects.
72 Contravention proceedings have been commenced in respect to both those Community Correction Orders. You are not be punished again for your past offending, but this present offending does reflect poorly upon your rehabilitation prospects.
Sentencing regimes
73 Armed robbery is defined as a Category 2 offence for the purposes of the Sentencing Act 1991 where the offending is committed in company with one or more persons.
74 Therefore, the offending that is the subject of Charges 24 and 25 are considered to be Category 2 offences, and pursuant to s5(2H) the court must impose a sentence under Division 2 of Part 3 of the Act for those charges unless an exception under s5(2H)(a)–(e) applies.
75 Ms Wendlandt, on your behalf, did not seek to rely upon any of the exceptions.
76 What this means is that that would ordinarily require the imposition of a sentence of imprisonment for the armed robbery charges (charges 24 & 25); however, it should be noted that a youth justice centre order is an available option under Division 2 of Part 3 for offenders under the age of 21.
Status of co‑accused
77 There are a number of co‑offenders in relation to the charges that are before the court. The status is provided as follows:
(i) Jack Hall (date of birth 8 April 1999, age 21). Jack Hall was charged with theft of Tavic’s motor vehicle in relation to Charge 1, and also several other offences unrelated to your offending. His matter is yet to be resolved.
(ii) John Taiseni (date of birth 14 February 2001, age 19). John Taiseni pleaded guilty to aggravated burglary (Charge 30) and theft of motor vehicle (Charge 31) in addition to numerous unrelated offences. He was sentenced on 22 May 2020 at Geelong Magistrates’ Court to an 18‑month Community Correction Order.
(iii) Jayden Walmsley (date of birth 21 March 2003, age 17). Jayden Walmsley pleaded guilty to aggravated burglary (Charge 27) and theft of a motor vehicle (Charge 28) in addition to numerous unrelated offences for which he was sentenced on 16 September 2020 at Geelong Children’s Court to a Youth Attendance Order for six months.
(iv) Rohan Stuart (date of birth 12 March 2001, age 19). Rohan Stuart was charged with theft of motor vehicle x 2 (Charges 5 and 8). His matter is yet to be resolved.
(v) Max Mrsic (date of birth 15 May 2003, age 17). Max Mrsic was charged with theft of motor vehicle x 2 (Charges 5 and 8). His matter is listed for mention in the Geelong Children’s Court on 28 April 2021.
(vi) Jasmine White (date of birth 19 December 2005, age 14). Jasmine White has been charged with theft of motor vehicle x 2 (Charges 5 and 8). Her matter remains unresolved.
(vii) Connor Kennedy (date of birth 6 February 1998, age 22). Connor Kennedy has been charged as co‑offender in respect to Charges 16–25. He was aged 18 years at the time of the commission of the offences and 19 at the date of sentence. He pleaded guilty at the earliest opportunity and received a discount in his sentence accordingly. The principles in respect to youthful offenders applied. He was heavily dependent on methylamphetamines and had been diagnosed with ADHD at a young age (6). He had 306 days pre-sentence detention declared. He was held in an adult jail subject to the restrictive regimes associated with the COVID-19 pandemic. He had relevant prior criminal history however his history is not as extensive as yours. He was immature and presented as a moderate risk of further violent offending. He was sentenced by the County Court on 21 January 2021 to a total effective sentence of 27 months detention on a Youth Justice Centre Order.
78 Given your age, your role, antecedents and the additional charges involved with this series of offending, a disparity in sentence can be justified with respect to the sentences that have already been imposed.
Role in the offending
79 In formulating the appropriate sentence to be imposed I must have regard to the gravity of your offending. You were the main offender in the majority of these incidents.
80 In terms of the role you played in respect to the offending, I accept that in respect to Charges 1 and 3, theft of motor vehicle, the co‑accused who stole the vehicles was the principal offender. You are to be sentenced on the basis that you were travelling as a passenger in the stolen vehicle only and were not charged with the actual theft of the vehicle.
81 In respect to Charges 5–8, for which the co‑offenders are Stuart, Mrsic and White, you were the principal offender and played the lead role in accessing the home and stealing the motor vehicle and various items of property. There was an age disparity between you and your co‑offenders, specifically Mrsic and White, who are minors and to be dealt with in the Children’s Court.
82 In relation to Charges 16 to 25, for which the co‑offender is Kennedy, I consider that your roles are equal.
83 You played an equal role with the unknown offender in charge 26.
84 The circumstances of the aggravated burglary charges (Charges 6, 9, 13, 27, 30, 32 and 34) are such that I considered those offences to be towards the lower end of seriousness for this type of offence. I have had regard to the fact that the entry into the residence was brief and the intent upon entry was to steal. However, each of the offences were very brazen and involved you violating the sanctity of those homes in frightening circumstances for the occupants who were made aware of your presence.
85 In respect to the two charges of armed robbery (charges 24 & 25), I accept that the offending is in the mid-range. Both charges were committed in company with another, and at the time either you or your co-offender were armed with a knife. The victim in respect to Charge 24 was young, being aged 15, and vulnerable. The other victim was riding his bicycle when he was set upon by you and your co‑accused. Each of the victims were in a public place where they are entitled to feel safe to move about.
86 The thefts relating to the eight motor vehicles (Charges 5, 8, 10, 28, 31, 33, 35 and 36) were brazen and involved you committing a number of aggravated burglaries (Charges 6, 9, 27, 30, 32 and 34) in order to locate the keys to steal such vehicles. This reveals a pattern of behaviour and a willingness to take risks to steal motor vehicles.
87 You were solely responsible for the offending which was the subject of Charges 27, 28 and 29.
88 You played an equal role with co-offender John Taiseni in respect to charges 30 and 31.
89 You were responsible for the offending which was the subject of Charges 32, 33, 34, 35, 36 and Summary Charge 40.
Personal History and circumstances
90 I have had regard to your personal history and background.
91 You are a youthful offender. You were aged 20 at the time of the offending. Your 21st birthday is on 18 February 2021.
92 Your parents are Aboriginal. Your mother is Wathaurong and your father is Barkindji. You are the only child born to their union. Your parents were both teenagers when you were born and were unable to properly care for you as an infant. Your parents have not been together throughout your life. You have two half-siblings on your mother’s side as well as four half siblings on your father’s side. You had limited contact with your biological parents whilst growing up. No ongoing contact is maintained.
93 Both parents had a heavy dependence on alcohol and substance addictions. Their relationship was characterised by domestic violence and they suffered the effects of intergenerational trauma and disrupted childhoods.
94 You were the subject of a Protection Application when you were nearly four months of age. You were first placed in Joseph Jones, your maternal grandfather’s care. You were then placed with a maternal cousin, whom you call aunt, Aunty Kasey Elston. She looked after you from infancy until you were aged 16.
95 Aunty Kasey worked hard to ensure that you maintained strong connections with your Aboriginal culture through your involvement with the Wathaurong Aboriginal Cooperative in Geelong.
96 In Year 10 aged 16 you went and lived with your maternal grandfather, Joseph, in Corio in a bungalow out the back of his house. You would also spend time at your maternal grandmother’s house on occasion.
97 Joseph died in February 2019. He had been in ill health and had chronic health issues. You were deeply impacted by his death. Following upon his death you were homeless, mixing with negative peers and heavily using illicit drugs.
98 You lived in a relationship for a while and you have a son Iluka born of the relationship. You have not had any contact with your son who was born whilst you were incarcerated.
99 You generally had positive relationships with your aunt, grandmother and grandfather growing up. However, you were exposed to heavy drug use by your relatives from a young age. There is a family history of cannabis, alcohol and methamphetamine use by both biological parents, and heroin, methamphetamine, alcohol and cannabis with relatives with whom you resided at your grandfather’s house.
100 You have a history of polysubstance use. You started smoking cannabis at age 15 and began using methamphetamines heavily, using daily from 2016. You also binged on alcohol in your early teenage years but stopped at around 18 years. You would abuse prescribed medications including Xanax, Valium and Seroquel.
101 In so far as treatment for your alcohol and drug dependency, you have in the past attempted rehabilitation programs on two occasions. The first was at Baroona, where following a four-month stay you resorted to using drugs almost immediately, and in 2019 you had one month at Bunjilwarra, but left after one month and promptly resumed drug use.
102 You struggled at school with difficulties in literacy and numeracy. In 2016 you left North Geelong Secondary College part-way through Year 10.
103 In 2017 you were supported to enrol at BASE, a program that would have enabled you to complete a trade based VCAL course focussing on motor mechanics. You did not complete the program and were exited due to your inability to engage in May 2017.
104 You have a history of suicide attempts, the first of which happened in 2017 and the second occasion in 2018 in the context of heavy drug use and relationship difficulties. In the past you have had treatment for self- harm by way of cutting in the context of being under significant stress with few supports and poor coping skills.
105 You completed a two-day Traffic management course in August 2017, but you have never worked.
106 I accept that you were significantly disadvantaged whilst growing up. You have not had the advantage of being cared for by your parents. Your life has been significantly disrupted. You have been exposed to drug taking at a young and vulnerable age by members of your family. That disruption and neglect has contributed to your chronic abuse of drugs. I find the principles in Bugmy have been engaged.[1]
[1]Bugmy v The Queen [2013] HCA 37, [40],[43] –[44]
107 The High Court recognised that:
“the effects of profound deprivation do not diminish over time and repeated offending and it is right to speak of giving full weight to an offender’s deprived background in every sentencing decision.”[2]
[2]Ibid, paragraph 42
108 As a young man you were diagnosed with ADHD and prescribed Ritalin. Your aunt states that you had an adverse reaction to the medication ( ie increased thoughts of self-harm) and this was ceased after only a couple of weeks.
109 You have been diagnosed with depression and anxiety and treated with Mirtazapine in the past.
110 Dr Lauren Fitzpatrick, clinical neuropsychologist, prepared a neuropsychological assessment when you were aged 17 and in custody at Melbourne Youth Justice Centre. She noted a history of polysubstance abuse. Her report raised the possibility that your mother may have abused alcohol whilst pregnant with you and that there is a possibility that you have foetal alcohol syndrome disorder (FASD).
111 The diagnosis of FASD has now been confirmed by Dr Linda Borg following her recent assessment on 10 February 2021. She also noted severe anxiety and mild elevations in depression.
112 Dr Fitzpatrick determined that your level of cognitive functioning was in the low average range with long standing language and verbal weaknesses and that you performed within, or close to, expected levels across most areas of cognitive functioning.
113 Overall Dr Fitzpatrick assessed you in the low average range of general intellectual ability. She did not think that your cognitive profile was suggestive of substance-related acquired brain injury. She considered that your primary neuropsychological difficulties relate to longstanding language/verbal weakness and fluctuating attention. Your cognitive weaknesses appear to be longstanding and are related to environmental and situational factors. She considered that your reading abilities were at Grade 5 level. She recommended remedial basic literacy education.
114 Encouragingly, she says that you do have the requisite cognitive capacity to make reasoned decisions and to inhibit undesirable behavioural responses. Therefore, you do have the ability to be responsible for your actions.
115 Dr Fitzpatrick considers that you should be given firmly consistent boundaries around your behaviour. She made some recommendations for strategies to assist you in being more pro‑social.
116 I have also had regard to the contents of Ms Sandra Cokorilo, consultant psychologist’s, report dated 16 October 2020. Ms Cokorilo noted your immaturity, low intellectual capacity, susceptibility to negative influences, and risk associated with further prolonged exposure to prison environment.
117 Her clinical diagnosis is that you suffer from stimulant-use disorder related to amphetamine and cannabis, in early remission in a controlled environment, and that you present with traits consistent with anti-social personality disorder and low intellectual function.
118 She considers that you present as a very immature 20‑year-old male of low intelligence with a history of conduct problems and substance abuse. In her opinion your early commencement of substance abuse has undoubtedly further contributed to your negative developmental trajectory. She concludes that your low intellectual functioning, associated with lowered ability to learn, reason, and make sound judgments and decisions, would make you more susceptible to negative peer influences.
119 She concludes that you were exposed to inappropriate modelling and negative environmental influences in your grandfather’s home, where you were introduced to methamphetamine by family members, and that would have additionally impacted on your behaviour and contributed to the development of anti-social personality disorder. Furthermore, your substance abuse heightens your risk of impulsive and reckless behaviour, further impairing insight, decision-making and judgment.
120 She recommended, from a psychological perspective, that you be provided with intensive and targeted support to break the emerging pattern, break the cycle of offending and incarceration, and minimise the risk of future institutionalisation.
121 She also recommended that you undertake residential rehabilitation programs to address your underlying addiction to alcohol and drugs and to provide alternative strategies and a relapse-prevention plan. In addition, she recommended a referral to a psychiatrist to confirm the diagnosis of ADHD as well as psychotherapy to promote awareness of mental health functioning and development of functional coping strategies.
122 Finally, she recommends cognitive behavioural therapy to address the risk of further violent offending. Otherwise, she recommends intensive long-term support to establish a pro‑social lifestyle with stable accommodation, employment and pro‑social support networks.
123 I accept those recommendations and agree that if those recommendations are implemented effectively that may help change destructive patterns of behaviour, build interpersonal skills and reduce impulsivity. This is crucial for you if you are to break the cycle of offending, to improve your rehabilitation prospects and to provide for community protection.
124 In her opinion your risks of re-offending are high. Importantly, Ms Cokorilo says some of those risk factors may be amenable to treatment. She recommends a combination of psychological intervention and medication if your symptoms do not improve through psychological therapy.
125 The Court has been greatly assisted by the comprehensive report authored by Dr Linda Borg, dated 16 February 2021.
126 Dr Borg assessed your Full-Scale Intelligence Quotient IQ (FSIQ) as being 76 (5th Percentile; Range 72-81 Confidence Interval at 95%).
127 She confirmed the diagnosis of foetal alcohol spectrum disorder (“FASD”). There is evidence of severe neurodevelopmental impairment. She states that you show impairments in language, numeracy, verbal memory, aspects of attention and executive function as well as social function.
128 She queried the diagnosis of ADHD and states that it is most likely that your attentional dysfunction is a feature of neurodevelopmental compromise resulting from prenatal alcohol exposure.
129 She confirms that neither your cognitive deficits nor FASD are causative factors for the offending, particularly in view of the role of acute intoxication. However, she does recognize that the underlying cortical vulnerabilities arising from this condition are likely to be compounded whilst under the influence of alcohol and underlying antisocial and borderline personality elements which may increase the propensity for impulsive and ill-considered action.
130 Importantly she states that you do display intact perceptual function, impulse control and you have enough awareness of the wrongfulness of your conduct to cease or modify your behaviour.
131 Dr Borg makes a number of recommendations in paragraph [61] and specifically raises a number of concerns about your vulnerability and respectfully suggested that Youth Detention may be a more suitable medium to implement appropriate supports in an attempt to improve your prospects of rehabilitation.
132 I agree with her assessment and recommendations as set out in her report and recommend that the authorities follow those recommendations and also that consideration be given to having you assessed as to your eligibility for an NDIS Plan so that appropriate supports and structure can be put in place upon your eventual release to maximise your prospects of rehabilitation.
133 I have taken into consideration all the matters put on your behalf by Ms Wendlandt by way of mitigation. There is real utility in your plea of guilty. You indicated your willingness to plead guilty at committal mention on 21 August 2020. The prosecution accepts that the plea of guilty was entered at the earliest opportunity. Through your plea you have spared the further trauma of witnesses of having to come to court to give evidence on your trial. The inherent utilitarian value of a guilty plea is greater during the pandemic.[3]. You have facilitated justice and your sentence will be discounted accordingly.
[3]DPP v Bourke [2020] VSC 130 at [32]
134 You were cooperative with police to the extent that you made full admissions in relation to Charges 5–8 when interviewed by the police.
135 On 23 March 2020 you were charged and remanded in custody.
136 Due to the COVID‑19 pandemic there was a delay in your matter being dealt with in the Koori Court Division. Your plea hearing in the Koori Court did not proceed until 19 October 2020.
137 You have spent a large portion of time since you were aged 16 in custody, be it juvenile detention or adult custody awaiting sentence. This is a disturbing pattern, and you are at real risk of institutionalisation.
138 The Elders encouraged you to look to the future, to seek help from others and to make the most of any programs especially further education that you may be offered whilst in custody.
139 Importantly, they encouraged you to change your behaviour and recommended to you that you should seek assistance in obtaining more information about your aboriginal heritage and culture and connect with your Barkinjdi family. They told you that you need to respect your country, your community and elders so that you can be a proud Aboriginal man and a better role model for your son.
140 I accept that through the discussions held at the sentencing conversation that you showed that you were genuinely remorseful for what you had done and you have an evolving insight into the reasons for, and the seriousness and effect of, your offending and you did express an appropriate commitment to reform.
141 Your genuine participation in the Sentencing Conversation is a mitigating factor.[4]
[4]Honeysett v The Queen (2018) 56 VR 375
142 You are still a relatively young man and rehabilitation remains a significant sentencing factor even allowing for the seriousness of your crimes. However, given the seriousness of the charges this means the more mitigating effect of youth is diminished to a degree.[5]
[5]Azzopardi v The Queen (2011) 35 VR 43, 55-56 [37]-[40]; DPP v Lawrence (2004) 10 VR 125,132 [22]
143 Overall, I consider that your prospects of rehabilitation are fairly reasonable provided you accept the help needed to guide you for the future.
144 I accept the submission made by Ms Wendlandt in view of Dr Borg’s expressed opinions that limbs 2-5 of the Verdins[6] principles apply. The prosecution accepts this in view of the FASD diagnosis.
[6]The Queen v Verdins (2007) 16 VR 269
145 I have moderated the need to emphasise general and specific deterrence and consider that the diagnosis of FASD is relevant to the type of sanction to be imposed. I consider that the burden of imprisonment in an adult prison is likely to be increased by reason of your impairment more so than others without that diagnosis.
146 I accept the fact that restrictions imposed because of the COVID-19 pandemic have meant that prison has been more burdensome for you particularly because of your diagnosed FASD condition. All personal visits and programs have ceased and prisoners are required to spend less time out of their cells and movement is very restricted. It is accepted the pandemic is causing additional stress and concern for prisoners and their families.
147 You have found your experience during Covid-19 has been extremely difficult. You have experienced long periods of loneliness and isolation. You have had limited outdoor exercise and contact with others and this has caused frustration and difficulties managing your emotions.
148 In formulating the sentence, I must impose just punishment. I have had regard to the principles of totality and proportionality and the need to avoid imposing a crushing sentence.
Suitability for a Youth Justice Centre Order
149 Daniel Hall, Case Manager, prepared a Pre-Sentence Report – Suitability for Youth Justice Centre Order for the court endorsed by Leah Martella, Team Manager, Geelong-Barwon South West.
150 The report dated 20 November 2020 states that you have been assessed as not being suitable for a Youth Justice Centre order.
151 Mr Hall confirmed today that he has discussed the matter further with Mr Damiano Rodda, Assistant Manager, Classifications & Placement, Youth Justice Custodial Services following receipt of Dr Borg’s report and the diagnosis of FASD. No change in the recommendation is proposed.
152 I have had regard to the matters set out in s32 of the Sentencing Act and the factors that are referred to in s32(2)(a)-(b).
153 I accept the further submissions made by Ms Wendlandt set out in her written submissions dated 17 February 2021.
154 Overall, given your youth, your significantly disadvantaged and disrupted childhood, lack of appropriate role models, immaturity combined with your low intelligence, cognitive disabilities and FASD diagnosis I consider that you are particularly impressionable and immature and are likely to be subjected to undesirable influences in an adult prison such that I propose to make orders that you be detained at a Youth Justice Centre.
155 The formal court orders are you will be convicted of each of the charges and ordered to be detained as follows-:
Charge number Nature of charge Sentence (Youth Detention) Order for cumulation 1 Theft 3 months 1 month 2 Theft 1 month 3 Theft 3 months 1 month 4 Theft 1 month 5 Theft 6 months 1 month 6 Aggravated burglary 12 months 3 months 7 Theft 6 months 8 Theft 6 months 9 Aggravated burglary 12 months 3 months 10 Theft 6 months 11 Attempted theft 1 month 12 Theft 3 months 13 Aggravated burglary 12 months 3 months 14 Attempted theft 1 month 15 Attempted theft 1 month 16 Burglary 6 months 17 Attempted burglary 3 months 18 Attempted theft 1 month 19 Attempted theft 3 months 20 Attempted burglary 3 months 21 Burglary 6 months 1 month 22 Theft 6 months 23 Theft 3 months 24 Armed robbery 12 months 3 months 25 Armed robbery 18 months (Base) 26 Attempted theft 1 month 27 Aggravated burglary 12 months 3 months 28 Theft 12 months 29 Attempted theft 1 month 30 Aggravated burglary 12 months 31 Theft 12 months 1 month 32 Aggravated burglary 12 months 33 Theft 12 months 34 Aggravated burglary 12 months 3 months 35 Theft 12 months 36 Theft 12 months 1 month Summary charge Trespass 1 month
156 The base sentence is Charge 25, which is 18 months. The total period of detention is 3 years and 6 months.
157 I make the following declaration pursuant to s6AAA of the Sentencing Act, but for your plea of guilty I would have imposed a term of imprisonment of five years to serve three years.
158 I make the following licence cancellation orders in respect to Charges 1, 3, 5, 8, 10, 28, 31, 33 and 36. Following convictions for those offences, any licences that you hold are cancelled and you are disqualified from obtaining a further licence for a period of two years.
159 I declare that you have spent 331 days in pre-sentence detention and direct that that be entered into the records of the court.
160 I make the Disposal Order sought.
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