Director of Public Prosecutions v Justin

[2019] VCC 1609

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT SHEPPARTON
CRIMINAL JURISDICTION

CR 19-01312

DIRECTOR OF PUBLIC PROSECUTIONS

v

TYRONE JUSTIN

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Shepparton
DATE OF HEARING:	24 September 2019
DATE OF SENTENCE:	2 October 2019
CASE MAY BE CITED AS:	DPP v Justin
MEDIUM NEUTRAL CITATION:	[2019] VCC 1609

REASONS FOR SENTENCE
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Subject:
Catchwords:
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Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Brown	Office of Public Prosecutions
For the Accused	Mr J Miller	Victorian Aboriginal Legal Service

1HIS HONOUR:  Tyrone Justin, you have pleaded guilty to 13 charges of theft, one charge of criminal damage by fire, four charges of burglary, one charge of the theft of firearms, and two charges of using a carriage service to menace.  Those crimes carry maximum penalties of 10 years, 10 years, 10 years, 15 years and three years.  The charge of using a carriage service is in fact a Commonwealth charge.

2Firstly, pursuant to section 464ZF of the Crimes Act I make an order that you provide a saliva sample for DNA purposes.  That order having been made, I must advise you that should you refuse to provide police with such a sample they may use reasonable force to take it from you, and that order is made and handed down.  You are now 19 years of age and were 18 years of age effectively at the time of the offending.  I accept that you pleaded guilty at the earliest reasonable opportunity. 

3You made some admissions when interviewed by police and subsequently made statements where you made much fuller admissions.  I accept having listened to you and spoken to you in the Koori Court sitting the other day that you at least now express appropriate remorse for the offending, and you must of course get the utilitarian benefit of that plea of guilty.  The major thing that you have going in your favour is that you are still a very young man and you have no prior convictions of any description.

4You do now apparently have subsequent matters which relate to threats to kill which occurred only a week or two ago.  That obviously is of some concern.  The summary of the offending is quite detailed and I will go through it more in a precis form and I will direct that the Crown opening be annexed to these my sentencing remarks.  As I have said you were 18 years old at the time of the offending.  Two other people, Smith and Wilson, were involved but were not charged. 

5You have two co-accused across these incidents.  One Andrew Drew who was sentenced to a 12 month community corrections order, and one Braydon Rawlings who was sentenced to be imprisoned for a period of 71 days with a 12 month CCO.  I point out from the outset, as I did the other day during the course of the hearing, that obviously parity has to play some part in this process but neither of those was charged with the theft of the firearms, which in my view is the most serious offence here and neither of those was charged with the menacing of a police officer.

6That is a significant difference in these circumstances.  Charges 1 and 2 come from the incident where a number of you went to farm land and a farm was effectively burgled where a Honda TRX500 was stolen. The complainant in that matter heard the motorbike start and jumped up and ran outside and he saw it being driven away.  After that you all took in turns driving the motorcycle around and then burned it. 

7Incident 2 regards a charge of burglary and two charges of theft.  The complainant in that matter who features in other areas of this was living, as I understand it, with her son who had formerly been a friend of yours in Yarrawonga.  There was a shed at the rear of her property.  Keys were taken and a number of objects were stolen.  Those objects were placed into a motor vehicle and driven off.  Police subsequently located a water ski, which had been stolen, at the address of one of your co-accused.

8Incident 3 involves a charge of theft where a number of you entered an open bay farm shed locating a quad bike which had the keys in it. That quad bike was taken and again burnouts were done and again it was burned.  Incident 6 is two charges of theft.  The complainant in that matter had two motor vehicles stolen by each of you from a rural property, and they were driven to Cobram. 

9Incident 10, which is Charges 9 and 10 and 11, is in my view the most serious here.  On the evening of 1 October 2018 you and a co-accused went back to an address in Pullar Road, Cobram where you had been previously.  The vehicle was parked outside and you and your co-accused walked into the farm to a locked shed, forced entry to the shed and once inside broke into a gun safe.  Four firearms, rings, jewellery and cash were stolen.  Fingerprints of yours were located on an envelope which had been inside the safe and you then left the scene. 

10The vehicle that you were driving was pulled over and you and a co-accused handled the firearms and you all posed for photographs with those firearms.  You then returned to Shepparton.  The firearms remained in the boot of your co-accused's vehicle for a couple of days before they were collected and they were then taken where you and others used them shooting at trees and cans.  On 2 October 2018 an image of you and one of your co-accused posing with the firearms was posted to Instagram via your account.  Those stolen firearms have not been located.

11Those matters come back to play in Charge 19, which is of using a carriageway to menace.  Incident 12 is a charge of burglary and a charge of theft.  Again a motor vehicle stolen, driven to Yarrawonga.  Once again outside of the Cahills Road address and burnouts took place.  That vehicle was eventually dumped.  Incident 13 is Charges 14, 15 and 16, which is burglary and two thefts.  Again vehicles stolen, petrol stolen and the vehicles driven away.  The charges 17 and 18 are of theft, and again entering property, stealing vehicles and driving them away.

12Incident 15 is drive in a manner dangerous.  Sorry, is there a loss of licence on that too?  That's compulsory, isn't it?

13MR BROWN:  Yes, six months, Your Honour.

14HIS HONOUR:  Six months.

15MR BROWN:  That's – I'll look it up, not sure whether it's disqualification and suspension or ‑ ‑ ‑

16HIS HONOUR:  If you look it up in the next couple of minutes for me I'd appreciate that.

17MR BROWN:  Yes.

18HIS HONOUR:  That charge of manner dangerous, which is a summary matter which has been uplifted to which you have pleaded guilty, as well as one breach of condition of bail, involves you doing burnouts at the address I have already spoken about a couple of times.  Charge 19, using a carriage service to menace, in my view is a serious example of that crime.  What happened was that on 13 November 2018 you were interviewed, charged and bailed in relation to some of the charges I have already been through.

19On 3 December 2018 you posted a photograph on your Instagram page.  That was the image taken when you and a co-accused had been posing with the stolen firearms.  Your faces and vehicle registration plate were covered but it is obvious from the material that that is what it was.  Attached to that image was the comment, 'The type can organise to end your life.  We the type that they label crazy, bro @braydonrawlings #copsfuckkids #comingforyouboyd.' 

20There are some spelling mistakes involved in all that.  But that is, to send or post a message such as that, clearly directed at the policeman who had charged you previously.  With a photograph of the two of you with guns is a serious example in my view of that particular crime.  Your co-accused then posted the following comment, 'Isn't that the truth, ha ha.'  When you were interviewed by the psychologist, and I will come to that again in a moment, you as I understand it tried to say that that photograph was not even you.

21You said that you did not think the conduct was illegal and it was not directed at a police officer.  That was back in January of 2019 when you were endeavouring to get bail.  There is a number of aspects of that psychologist's report which I find extremely concerning but I may go into that in a little bit of detail later. 

22Charge 20, using a carriage service to menace, again is the situation where it was directed at the police and effectively the menace was that, 'Cops are so dumb thinking they'll get away with fake names.  Bro, your kids, car, address, everything is all on Facebook, and now I know everything about them.  Thanks for the canary BTW.'  Clearly that relates back to the original booking by Mr Boyd. 

23In any event you on 13 December were again interviewed by police and you made a number of admissions in regard to that, and I have already said you get the benefit of those admissions and obviously the early plea of guilty.  The overall offending as I said is clearly serious.  I am well aware of what your co-accused got.  The man from whom the firearms was stolen has put in a victim impact statement saying that the theft of the motorbike which was there as well had made things very difficult for him around the farm due to physical disabilities.

24He pointed out the guns were of sentimental value.  The jewellery was of sentimental value, and essentially they were family objects which were to be handed down to children.  Obviously your offending has eliminated that possibility.  He also points out that it has caused much anxiety.  Insofar as that complainant is concerned, it is clear that the firearms are still at large in the community as far as we know.  It is a situation now where with the prevalence of ice and matters such as that in the community to steal firearms and then release them into that environment has to be treated with severity in my view by the courts.

25As indicated during the conversation in Koori Court, if you find out - and I have got no doubt that you know roughly where at least where those guns went - that somebody has been murdered with one of those guns or killed with one of those guns, you are going to have to live with that.  The police officer to whom that threat or menace, I should say, was directed also put in a victim impact statement. 

26As was very clearly pointed out to you during the course of the conversation with the elders in Koori Court, that man has put in a victim impact statement which very succinctly outlines the problems and the difficulties that this has caused.  Posting threats like that.  He had to tell his family.  They became anxious about it and as I said to you during the course of the process, police that have to go and face angry men they do not need this sort of thing happening behind their back where they have to look over their shoulder all the time as they try and protect you and the rest of the community.

27As I say, sometimes these things which are posted are threats which are obviously ridiculous but this one was not and as Uncle Joe pointed out to you during the conversation - and it will not affect this sentencing, but pointed out to you that man has said this,

28'I live locally and am heavily involved in community sport.  I'm not hard to find.  It affected me publically and socially as I had to keep an eye out for Tyrone and his two mates.  I hope he's learned his lesson and contributes positively to society from now on.'

29That is a very generous comment and I suspect a lot of people in the community would think it was one you did not deserve.  In any event gaol to a certain level is inevitable in this situation despite your youth.  You have been in custody now for these matters on my calculation for 134 days.  It then becomes a question as to – and as I indicated earlier, becomes a question of how much more you do before becoming eligible to be released on a community corrections order.

30I have had you assessed for a community corrections order and you have been found to be suitable.  What the report says is that – outlines a number of matters about you and says in short, 'Due to his risk level and the nature of the offending, programs to reduce reoffending is recommended.'  They found you as a medium risk offender.  The psychologist said you were low which I think is in this situation ridiculous.

31They say,

32'Due to his risk level and the nature of offending programs is recommended as I said.  Perusal of the psychological report indicates trace of dependant personality and as a result there appear to be some symptoms of distractedness, disruptive behaviour, aggression, hyperactivity, impulsivity and lack of restraint along with an immature coping mechanism.'

33I do not think in these – and they then say you should do anger management or similar programs.  I do not think in these circumstances where I am incarcerating you that I need to put work hours on it.  I think that would be gratuitous.  But your offending is a dangerous form of offending and it could get you one day into very, very serious trouble indeed and it is important that that be arrested now.  Matters personal to you in determining the length of custody before you become eligible for that CCO were put succinctly in the submissions of your counsel.

34Your circumstances can be described fairly briefly.  There is a psychologist's report from Ms Ferrari which goes into massive detail.  There are aspects of that which are of no assistance.  There would appear to be aspects of that where she interviewed you back in January where you were in denial and not fully either cooperating or acknowledging the seriousness of what you had done.  But the fact of the matter is you were 18 at the time.  You had no prior convictions.

35You - and again I have got some suspended belief about some of these matters in the background, but you at least were home schooled.  You had very little, it would seem, interaction with other children in the way that normally occurs and at around about the time of this offending a partner had a miscarriage.  You in those circumstances effectively with a peer group started offending in this very serious way very quickly and quite prolifically over a period of a couple of months.

36After you were eventually bailed you, I am instructed, tried to get work and were finding it very difficult.  You in the ultimate offended again and have now been dealt with, and we have been through this with counsel, in the Magistrates' Court.  It is a not a situation here where any of the principles of Verdins are brought into play.  The prospects of your rehabilitation are really up to you.  The risk of your offending is moderate at least and if you do not, as I say, get your act together insofar as all this I would say that it is almost inevitable.

37What has happened though is that you did come and have the matter dealt with in Koori Court.  My feelings at the start of that sentencing conversation, and it went for some time with two very experienced and very highly respected elders, was that you were still in a state of denial and I suspect you came here thinking it might get you a lower sentence.  I have got no doubt that by the end of that conversation you had realised what this was all about.  You had realised that the opportunity that those elders were giving you to discuss this. 

38I accept that by the end of that conversation you were fully aware of what you had done and you were able to express appropriately the level of remorse that you do now have.  You were also able to express a desire to reform and to in that sense be a greater asset to your community and indeed to your family.  Whether you can maintain that over a period of time is going to be a matter for you. 

39But as I say that experience in Koori Court has given me a degree of confidence in what your intentions are in the future and dispelled some of the negative perceptions that I had of you from your earlier materials and particularly from what had been said to that psychologist in an endeavour to get bail.  The matter is really as simple as that.  If it was not for the firearms, and if it was not for the menacing of the police officer, I would give you a similar disposition, or the same disposition in all probability as that received by your co-accused.

40But it has gone beyond that.  What I am going to do is sentence you to be imprisoned for a period of time, a further period of time.  You will then be placed on a community corrections order, which will go for an extended period of time and I will give the details of that.  Firstly insofar as licence is concerned on ‑ ‑ ‑

41MR BROWN:  Yes.  On the dangerous driving, Your Honour, if he's got a licence it's to be cancelled and disqualified for six months.  If there's no licence, he's to be disqualified for six months. 

42HIS HONOUR:  All right.  On the charge ‑ ‑ ‑

43MR BROWN:  Minimum.  That's minimum, of course.

44HIS HONOUR:  Yes.  Thanks.  On the charge of dangerous driving, the licence is – is disqualified from holding a licence in the State of Victoria for a period of six months.  On the motor vehicle theft charges you are disqualified for three months.  Insofar as the two summary matters are concerned, on the charge of breach of bail seven days, and on the charge of dangerous driving seven days.  Both to be served concurrently with the sentencing being imposed on the indictment.

45I make it clear that I have read in full the materials that have been tendered on your behalf, including those of the psychologist and anyone who wants to view that can do so, and the matters I think speak for themselves.  In any event essentially as I say because of your youth and you do have family support, I sentence you to be imprisoned as follows.  On Charge 9, six months.  On Charge 19, to be sentenced to be imprisoned for a period of six months.  On Charge 20, one month.  I direct that the sentence imposed on Charge 20 commence today.

46I direct that the sentence imposed on Charge 19 commence three months before the expiration of the sentence imposed upon Charge 9.  I direct that 134 days be reckoned as having been served under this sentence.  On my calculation that means there is an effective sentence of 9 months, with half of that served.  If you agree, on Charges 1 to 18 you will be placed on a three year community corrections order.  It will be with conviction.  There will be no work component, but the conditions will be of supervision, mental health and programs to reduce reoffending.

47We will just get you to sign that.  If you would not mind going down to the dock with my associate please.

48(Community-based order signed and acknowledged.)

49HIS HONOUR:  All right.  So that CCO is to be entered into upon your release, and I make it very clear to you if you breach that CCO by any offending like this there will be 18 very serious charges before me that I will resentence you for, and you will go to gaol for them.  Do you understand that?

50OFFENDER:  (Indistinct).

51HIS HONOUR:  Just so you understand the benefit of your having pleaded guilty in these circumstances, had you not pleaded guilty and tried to run a trial I would have sentenced to be imprisoned for a period of three years, with a minimum term of 18 months.  The 18 months minimum being because of your age.  All right.  There are no other orders I need to make?

52MR BROWN:  No, Your Honour.   The disposal order, Your Honour.

53HIS HONOUR:  I'll do that in chambers.

54MR BROWN:  Yes.

55HIS HONOUR:  I'm assuming that's agreed to?

56MS GILLAHAN:  Yes, Your Honour.

57HIS HONOUR:  Yes.  All right.  We'll just do that in chambers.  Yes.  Okay.  Thanks.  You can go now.  Thank you.  Yes.  All right.  Yes, 11 o'clock, thanks.

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