Director of Public Prosecutions v Kingsley (a pseudonym)
[2021] VCC 1789
•10 November 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE KOORI COURT DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TIMOTHY KINGSLEY (PSEUDONYM) |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 October 2021 | |
DATE OF DECISION: | 10 November 2021 | |
CASE MAY BE CITED AS: | DPP v Kingsley (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1789 | |
SENTENCE
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Catchwords: Criminal law – sentencing – burglary, theft of firearms, theft and related summary charges – early plea of guilty –Bugmy v The Queen (2013) CLR 571 considerations – impact of covid on prison conditions – good prospects of rehabilitation – genuine participation in the Sentencing Conversation - combination sentence imposed
Legislation Cited: Crimes Act 1958; Sentencing Act 1991
Cases Cited:Bugmy v The Queen (2013) CLR 571; Worboyes v The Queen [2021] VSCA 169; R v McKee (2003) 138 A Crim R 88, 94
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D. Cordy | Abbey Hogan Solicitor for Public Prosecutions |
| For the Accused | Mr A. Waters | MMO Lawyers |
HER HONOUR:
1Timothy Kingsley[1], you have pleaded guilty to three offences on the Indictment, one charge of burglary, one charge of theft of a firearm and one charge of theft.
[1] A pseudonym.
2In addition, you consented to three summary charges being dealt with by the court and pleaded guilty to Summary Charge 4, possess cartridge ammunition without a licence, Summary Charge 5, fail to stop when required by a police officer and Summary Charge 6, committing an indictable offence of theft of firearm whilst on bail.
3The offences are serious and that is reflected in the maximum penalties that are prescribed by Parliament.
Charge Offence Provision Maximum Penalties 1 Burglary s 76
Crimes Act 195810 years maximum 2 Theft of firearm s 75AA
Crimes Act 195815 years maximum 3 Theft s 74
Crimes Act 195810 years maximum
Charge Offence Maximum Penalties Summary charge 4 Possess cartridge ammunition without firearms licence 40 penalty units Summary charge 5 Fail to stop on police request 60 PU, 6m IMP or both Summary charge 6 Commit indictable offence whilst on bail 30 PU or 3m IMP
4You admitted your criminal history. That history spans a period from 27 March 2013 to 29 July 2020. Relevantly, you have been dealt with by the courts for similar offences, namely theft and burglary (2013). You have drug related convictions (2014) and convictions recorded for crimes of violence (2015 and 2020).
5I note that there was a period of almost five years between November 2015 and July 2020, where you remained out of trouble.
6I will now proceed to outline the circumstances of the offending, the subject of the indictment, and the summary charges.
7The offending involves you and an unknown co-offender.
8On Monday 16 November 2020, you both attended a workshop shed located on a farming property operated by your former employer, in the area of Wemen.
9Wemen is a small rural hamlet located on the Murray River approximately 40 kms south of Robinvale.
10You were driving a car that had been rented by you and your sister, Jasmine Kingsley[2] on 12 November 2020.
[2] A pseudonym.
11You entered the workshop area at approximately 3.52am and gained entry to a locked storage room by keying in the code to unlock the door. You stole the items that are the subject of Charges 2 and 3.
12On the same day, at approximately 9.45pm, the car with the same registration as that rented by your sister was clocked by a speed radar gun driving at 106 kilometres per hour in a 60 kilometre per hour speed zone on Riverview Drive, Kialla, a suburb of Shepparton. Police caught up with the vehicle on McLellan Street, Mooroopna, activating their lights and sirens. The offending vehicle took off at a fast rate of speed and police abandoned the attempted intercept due to driver behaviour.
13On the following day, Tuesday, 17 November 2020, police made enquiries with Avis Rental, the registered owner of the car. They were informed that the car had been hired Sophia Kingsley, your sister. When they contacted her, she told them that Avis had been informed by her that you had taken the car on Saturday, 14 November 2020.
14On Wednesday, 18 November 2020, at about 10.50am, police attended your grandmother’s home in Mildura to arrest you. There they spoke to your grandmother, who consented to a search of the property. During the search they located a jacket in your bedroom with two white stripes down the arms, a rifle scope on the bedside table, and a bag containing shotgun shells. Also found were a number of tools namely, cable cutters, a Milwaukee cordless drill and a Milwaukee die grinder that had been stolen from your former employer.
15Later that morning, police attend your partner’s home in Mildura where you were arrested, and your Samsung Galaxy mobile phone was seized.
16You were formally interviewed and charged. During the interview you denied the offending. You were remanded into custody.
17The impact of your offending is set out clearly in the Victim Impact Statement that was read by the Prosecutor at the plea hearing.
18The offending has impacted upon the victim and his wife. They felt violated and shocked by the crime and they were upset about what occurred. The victim has been required to increase the security on his property and needed to replace tools and other items that went missing from his shed. Sadly, this crime has impacted on his level of trust towards other people.
19I did note, however, in the sentencing conversation that you acknowledged what you did was wrong and that it involved a breach of trust on your part and that your actions would have upset the victim who had been good to you by providing you with employment.
20Timothy Kingsley your behaviour on this occasion must be condemned.
21Deterrence, denunciation, and community protection are all very important sentencing conversations.
22The burglary I consider to be a premeditated, planned act and did represent a breach of trust by you against your previous employer. The theft of a firearm is a serious offence particularly as the firearm has not been recovered.
You showed little regard for authority by failing to stop when directed by police.
Procedural history and totality
23I will turn now to the procedural history because the principle of totality plays a large role in your sentence.
24At the time of the offending, you were subject to Magistrates’ Court bail in the matter where Senior Constable Litchfield was the informant in relation to driving whilst disqualified and dangerous or negligent driving whilst being pursued by police. Those offences were committed on 10 October 2020.
25You were remanded on the Litchfield charges and then released on bail on
13 October 2020.26There were also some previous matters which resolved after your current offences were committed.
27On the 30 November 2020 you were sentenced by the Mildura Magistrates' Court to 4 months' imprisonment for the Litchfield charges as well as some other firearms charges.
28On the 3 February 2021 you successfully appealed that sentence at the County Court and you were re-sentenced to 80 days’ imprisonment to be followed by a 12-month Community Correction Order (79 days Pre-Sentence Detention was declared).
29On the 25 March 2021 you were granted bail for the indictable offences and summary charges by his Honour Judge Georgiou with the condition you reside at a residential rehabilitation program run by Dardi Munwurro.
30You were exited from that program on the 5 April after failing to return to the Dardi Munwurro property following permitted leave.
31During the time following your exit from Dardi Munwurro program, there was subsequent offending involving contraventions of conduct conditions of bail, driving whilst disqualified, reckless exposure of police officer to risk by driving, dangerous driving whilst pursued by police, theft of motor vehicle, dishonestly undertake in the realisation of stolen goods, being a prohibited person possessing an imitation firearm, fraudulently using a registration label and possession of cannabis. Those offences have also been dealt with prior to this matter proceeding.
32The County Court bail was revoked by His Honour Judge Georgiou on 27 April 2021 and a remand warrant was issued.
33On the 9 May 2021 you were charged with theft of a motor vehicle and drive whilst disqualified.
34On the 10 May 2021 you were charged with dishonestly undertaking in the realisation of stolen goods and being a prohibited person in possession of a firearm, possess cannabis and fraudulently use registration label and were remanded in custody.
35On the 30 June 2021 at the Mildura Magistrates' Court you were sentenced to a Total Effective Sentence of 3 months’ imprisonment for the subsequent offences with 51 days' pre-sentence detention declared.
36That sentence lapsed on the 22 July 2021.
37In formulating the appropriate sentence for you in respect of these offences, I have had regard to the principle of totality. Since the offending you have been in custody for a total of 311 days, being 127 days from remand on 18 November 2020 to release on 25 March 2021 and 184 days from remand on 10 May to 10 November 2021.
38This is the longest period of time that that you have experienced being held in custody.
39I now proceed to your background and personal circumstances.
40You are a young Aboriginal man who has connections to the Kalkadoon (Kalkatungu) people through your maternal line. You have a strong connection to Mildura and the Latje Latje peoples.
41You have expressed a desire to return to live in Mildura upon your eventual release so that you may re-establish your relationship with your children. Your ultimate goal is to relocate to Queensland so that you can seek work in the mining industry.
42Your matter proceeded in the Koori Court Division. You consented to the matter being heard and Uncle Peter Peterson and Auntie Sandra Stewart, Elders and Respected Persons, participated in a sentencing conversation with you and the plea hearing proceeded on 27 October 2021.
43It has been recognised by the Court of Appeal in Victoria that “the sentencing conversation” is designed to further the reformation of an Aboriginal offender.[3]
[3]The Queen v Steelie Morgan [2010] VSCA 14 at [11].
44I have had regard to your participation in the sentencing conversation and consider that to be genuine. You opened up and listened appropriately to both the Elders and freely acknowledged that your conduct was not acceptable.
45You frankly discussed your past history with the Elders and acknowledged that you need to address the drivers of your offending and that you do understand the connection between drug use and offending and the need for you to address your complex trauma history.
46I have taken into account your genuine participation in the conversation in mitigation of penalty.[4]
[4]The Queen v Steelie Morgan confirmed in Honeysett v The Queen (2018) 56 VR 375 and
DPP v Heyfron [2019] VSCA 130.
47Dr Mirabel McConchie, in her psychological report dated 19 November 2020 sets out in extensive detail your history and background and I do not propose to repeat in detail that information.
48At age 27 you are still relatively young.
49I accept that you have experienced a tragic background with a traumatic history of abuse. At a very young age you experienced parental abandonment. Your father left your mother when you were a baby. Your mother initially cared for you but due to her own substance abuse issues you were then cared for by your maternal grandparents from the age of seven. You have one sister. Your grandparents experienced difficulties managing your behaviours over the years so that at age seven you were sent to live with a family friend to be cared for by him.
50Unfortunately, whilst in his care over seven years he systematically physically and sexually abused you. He was subsequently charged, convicted and sentenced. Following a successful Appeal his sentence was reduced to a total effective term of 11 years to serve 8 years.[5] The full particulars of the offending are set out in the Court of Appeal decision involved with respect to that matter to which I have had regard.
[5] Davy v The Queen [2011] VSCA 98.
51Following the abuse coming to light at age 13, you were returned to live with your grandparents.
52You have a history of disrupted schooling, attending primary school in Mildura, Bordertown and Naracoorte. You had difficulty making friends and trust has always been an issue. You attended two Secondary Colleges but were expelled in Year 8. You have had little by way of formal education.
53When you were 19 you met, your former partner Abby[6] and there are two children born of that relationship. The eldest is four and the youngest was born in 2020. You were living with Abby in Shepparton and then travelled around Australia. You ran a caravan park for some time and then returned to live in Mildura where you were working, including farm work with the victim in this matter.
[6] A pseudonym.
54Whilst there has been some offending that occurred prior to 2020 you were able to live a relatively stable life in Mildura up until the time you saw the perpetrator of your sexual abuse, following which you had difficulties coping and I will refer to that later.
55You have a long history of drug and alcohol abuse, commencing using cannabis at aged of 12 and amphetamine and MDMA from the age of 13. By the age of 15, you were using methylamphetamine intravenously.
56When Dr McConchie assessed you, you admitted to her you were withdrawing from methylamphetamine, cannabis, MDMA and nicotine.
57She expressed the opinion that you showed the symptoms of Post-Traumatic Stress Disorder as a result of your childhood sexual abuse and that you turned to extreme levels of substance abuse in an attempt to cope with those symptoms.
58She said that you have never had an opportunity to learn to trust, have faced abandonment, physical, sexual and psychological abuse, with there being no consistent caregiver in your early years.
59She states that you show strong traits associated with an antisocial personality disorder and meet the DSM-V criteria for stimulant use disorder, cannabis use disorder, and alcohol use disorder and she highlights that you would be at high risk of re-offending should you continue to use illicit substances.
60In the sentencing conversation you acknowledged to the Elders that speaking with Dr McConchie was the first time that you had an opportunity to open up and tell your story about your history and you felt a weight shift from your shoulders and you now understand that you do need to continue to have counselling to address the deep trauma and trust issues that you have associated with that early history of childhood abuse.
61In the past you unfortunately have not had any counselling for post-traumatic stress disorder and both elders encouraged you to accept and seek out complex trauma counselling to aid your healing.
62I accept that this offending occurred in the context of you reverting to heavy drug use. Whilst working in Mildura you unexpectedly saw the perpetrator of your abuse who had been released on parole. Seeing him triggered very deep and painful memories. You did not seek assistance and resorted to heavy use of methylamphetamines in order to cope with your pain.
63Your life quickly spiralled out of control and as a consequence you lost your employment and your relationship with Abby ended due to your drug use and destructive behaviours.
64You became homeless and you were continuing to use drugs and experiencing poor mental health. Whilst providing an explanation for your behaviour, it in no way excuses your behaviour.
65In formulating the appropriate sentence, I have taken into consideration all the mitigating factors highlighted by Mr Waters.
66I accept that you entered a plea of guilty at the earliest stage. The plea of guilty was entered at committal mention. You are entitled to a demonstrable discount on sentence, and that is particularly so considering the utility accorded to pleas of guilty in the context of the COVID-19 pandemic.[7]
[7]Worboyes v The Queen [2021] VSCA 169.
67Through your plea you have spared the State the expense and inconvenience of a trial and importantly the victim has been spared having to come to court and being cross-examined. You have facilitated justice so your sentence will be discounted accordingly.
68In your case I am satisfied that you show genuine remorse and the plea of guilty is evidence of that, but also importantly the conversation that you had with Auntie Sandra and Uncle Peter showed that you do have real insight into your offending behaviour, and you did express a high level of remorse for your actions.
69You showed that you do have the ability to reflect and have insight into your behaviour. You understand the difference between right and wrong, and you also understand the need to address your underlying offending behaviour and to address your complex past history of trauma.
70I have applied the Bugmy[8] principles. You suffered profound disadvantage and abuse during your formative years. Those impacts do not diminish with the passage of time and further offending. I have also applied the Verdins’ principles.
[8]Bugmy v The Queen (2013) 249 CLR 571 (“Bugmy”).
71The offending was fuelled in part by your reaction to unexpectedly seeing your abuser and you resorting to illicit drugs which reduced your reasoning skills and reduced your capacity for clear thinking.
72The genesis of your addiction to drugs or resorting to drugs is linked to that horrific abuse that you suffered as a young child and I am mindful of the authorities allowing for some mitigation of moral culpability where drug addiction commences at an early age and relates to mental health difficulties and criminal offending.[9]
[9]R v McKee (2003) 138 A Crim R 88, 94 [21] (Buchanan JA).
73I accept that by the application of the Bugmy principles and Verdins[10] principle that they are engaged and in particular limbs 1, 3 and 4. I have reduced your moral culpability and moderated the need for general and specific deterrence.
[10]R v Verdins & Ors (2007) 15 VR 269 (“Verdins”).
74Timothy Kingsley, overall, I consider that there is real cause for hope for you in the future in terms of your rehabilitation prospects and this is so notwithstanding that you were unable to complete the Dardi Munwarru program whilst on bail. I accept that when you went there that you were not ready to commence your rehabilitation.
75You have now shown that you do have the capacity to reflect and have real insight and that I consider at this stage you are remorseful and you are committed to wanting to change and to accept assistance for the future. You have indicated your willingness to engage with the Wulgunggo Ngalu Learning Program so that you may continue to focus on addressing your underlying offending behaviours.
76You understand the complexity of your situation and the need for ongoing professional support and counselling.
77You do have strong family support and whilst you have been in prison you have been able to regularly contact your extended family members and you speak to your former partner, Abby and the children regularly.
78On your eventual return to Mildura you do have the opportunity to return to live with Abby and the children and your sister and other members of your extended family live close by and they all supportive of you.
79All those factors mean that you do have real potential for reform, but you do need to follow up and accept the help and assistance that will be offered to you and the recommendation that you undertake complex trauma counselling is really important for you for the future.
80I consider overall that you do have good prospects for rehabilitation and your genuine commitment to the Wulgungu Ngalu Learning Program will provide you with a culturally supported positive start to enable that change in your behaviour.
81I have had regard to the difficult circumstances of your confinement in the prison and the fact that you have been held in custody on remand throughout the COVID-19 pandemic with the associated restrictions on personal visits and programs and the need for you to be in transit quarantine after appearing in the Koori Court.
82I have also had regard to the fact that those circumstances, that is being held in prison during the pandemic, has caused additional stress and concern, not only for yourself but also your family, extended family and that is a matter I have taken into account.
83In formulating the appropriate sentence, I must impose just punishment. I have had regard to the gravity of your offending and the sentencing principles that I have earlier referred to including the totality principle.
84Mr Waters submitted in all the circumstances the offending is capable of being appropriately dealt with by way of a combination sentence incorporating the time that has already been served to be followed by community correction order.
85Mr Cordy the prosecutor agreed that such a disposition was available to the court in these circumstances. He expressed his view that you were genuine in your expressed desire to change notwithstanding the disappointment associated with your breach of bail and your failure to adhere to the Dardi Munwarru program.
86You have been assessed and deemed suitable for three-month placement at Wulgunggo Ngalu Learning Place and you have expressed your willingness to attend the program. You have also been assessed as being suitable for a community correction order.
87I have applied the guideline judgment of Boulton,[11] and the principles set out in that case and I consider that this is an appropriate case, where such an order is available and it represents appropriate punishment and also provides for your rehabilitation.
[11] Boulton v The Queen (2014) 46 VR 308.
88Ultimately I have formed the view that a combination sentence is appropriate and what that means is that you will be sentenced to the equivalent to time already served to be followed by a community correction in the terms that I have already discussed with you and you have given your verbal consent. Such a disposition can achieve all the purposes of sentencing in your case and provide the best opportunity for your rehabilitation in your future.
89The formal court orders are-:
90On charges 1,2 and 3 on the Indictment (burglary, theft of firearm and theft) you will be convicted and sentenced to 155 days' imprisonment to be followed by a two year community correction order with the additional conditions of supervision, treatment for drugs (including testing), mental health and other offence behaviour programs.
91Summary Charge 4 – possess cartridge ammunition without a firearms licence- you will be convicted and fined $200
92Summary Charge 5 – fail to stop on police request- and Charge 6 – commit indictable offence on bail - on both those charges you will be convicted and sentenced to one month imprisonment and those sentences will run concurrently with the sentence already imposed on the Indictment.
93The ancillary orders will be made. I make the Forfeiture order sought in relation to the firearm related items and the mobile phone
94In relation to your licence, there is a mandatory cancellation of licence required for Summary Charge 5 following a finding of guilt, the Court must cancel the person’s driver licence and disqualify the person for a minimum of 6 months. I therefore order that any licence by you is hereby cancelled and you are disqualified from holding a licence for a period of 6 months.
95I declare 155 days pre-sentence detention and pursuant to section 6AAA but for your plea of guilty I would have imposed a term of three years to serve 18 months.
96I believe that covers everything. We will make it clear on the certified orders that the proposed release date is 11 November 2021 to enable the transfer from the prison to Wulgunggo Ngalu Learning Place. I think that covers everything, gentlemen, but if I have omitted anything you had better tell me?
97MR WATERS: Nothing from me, Your Honour.
98MR CORDY: Nothing from the prosecution, Your Honour, that covers it all.
99HER HONOUR: Thank you and thank you for your assistance Mr Cordy and
Mr Waters. We finally got to the end of all of this so hopefully it will set Mr Kingsley up for a better future.100MR CORDY: Yes, Your Honour.
101HER HONOUR: Mr Kingsley, do you want to have the opportunity to speak to
Mr Waters before we leave the link? What we can do is I will adjourn the court and then we will just leave the link open so that you can have a quick discussion and I wish you all the best for the future.102OFFENDER: Thank you, Your Honour.
103HER HONOUR: I do hope that things work out for you and I really encourage you to try to do your best to fulfil all the program obligations that Wulgunggo Ngalu Learning Place. I know from my dealings with Shaun since 2008 that the program does offer a real opportunity for you to develop and change for better.
104OFFENDER: Thank you. I understand that and (indistinct).
105HER HONOUR: Yes, well it will be really good for Shaun Braybrook to see you succeed and also for the elders as well because they will be very keep to know what your progress is on the order so all the best.
106OFFENDER: Thank you very much.
107HER HONOUR: Thank you. We can adjourn.
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