Director of Public Prosecutions v Love
[2019] VCC 448
•4 April 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 18-02254
CR 18-02037
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| COCHISE LOVE TYSON PAGE |
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| JUDGE: | HIS HONOUR JUDGE SMITH |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 14 March 2019 |
| DATE OF SENTENCE: | 4 April 2019 |
| CASE MAY BE CITED AS: | DPP v Love |
| MEDIUM NEUTRAL CITATION: | [2019] VCC 488 |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Sentence – Attempted Theft.
Legislation Cited: Sentencing Act 1991, Crimes Act 1958
Sentences: Each offender convicted and sentenced to a two year CCO with conditions including community work (200 hours), supervision and assessment for treatment & rehabilitation.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr P. Triandos | Solicitor for the Office of Public Prosecutions |
| For the Accused Love For the Accused Page | Mr A Marshall (Plea) Mr M. Vaccaro (Solicitor) (Plea and Sentence) | Mario Vaccaro, Lawyer Mario Vaccaro, Lawyer |
HIS HONOUR:
1Conchise Love and Tyson Page, you have both pleaded guilty to one count of attempting to steal a boom lift contrary to s.74 of the Crimes Act 1958.
2The circumstances of the offending of each of you, were set out in the summary of prosecution opening which was tendered at your plea hearing. In summary, the circumstances of your offending are as follows.
3In the early hours of 6 March 2018 the two of you, together with other co-offenders, were walking in Wodonga, looking for a car to steal.
4At approximately 3.30 am you and others in your group observed an 85 foot boom lift at or near a park in Wodonga. It was a diesel operated machine.
5The two of you and others covered your hands with T-shirts so as not to leave fingerprints, shone your mobile phone torches to view the boom lift. You both attempted to start the boom lift by getting access to the control panel and attempting to start the machine by pushing a number of buttons it. Fortunately, you were unsuccessful - fortunately for you and fortunately for the community.
6That conduct constitutes the offence of attempted theft, Charge 2 on the indictment.
7Two of your co-offenders proceeded to light diesel petrol after cutting the fuel line and set the boom lift alight. Neither of you are charged with that offence. You and the others in your group then ran from the area. You did not call the fire brigade or call for any help to extinguish the fire. Shortly afterwards you returned to the park to watch the fire burn.
8Mr Love, you participated in a record of interview on 23 March 2018 during which you admitted to attempting to steal the boom lift. You told police that it was your intention to start it and drive it.
9Mr Page, you participated in a record of interview on the same date during which you also admitted to attempting to start and drive the boom lift.
10The maximum penalty for attempted theft if five years' imprisonment.
11I have taken into account the provisions of s.5 of the Sentencing Act which set out the purposes for which sentences may be imposed and matters to be taken into account in sentencing the two of you. I consider that the important principles applicable to sentencing of each of you are:
·To denounce your offending conduct.
·To punish you in a matter that is just in all of the circumstances
·To deter you and others in the community from committing offences of the same or similar character to establish conditions within which it is considered by the court that rehabilitation may be facilitated.
·To protect the community from you.
12I take into account:
·The maximum penalty, which I just referred to you.
·Your culpability and responsibility for the offence, which I regard as high with no one else to blame.
·Your pleas of guilty are to be taken into account and the effective absence of any criminal record.
·Your personal circumstances and in particular your ages. You are both considered to be youthful offenders, either under the common law or in your case, Mr Page, pursuant to s.3 of the Sentencing Act. It follows that your youth is a primary consideration in sentencing you both. Further, your rehabilitation as a sentencing purpose is important and far more so than other considerations.
13I will now address you individually.
14Tyson Page, you are currently aged 20. At the time of the offending behaviour you were aged 19.
15You are a single child. Your parents separated when you were aged 11. You lived with your father and stepmother until they separated and after that you were brought up by your stepmother. You later experienced some difficulties with her and you moved to Queensland with your father after finishing Year 11 in Wodonga. You later moved back to Wodonga.
16You appear to have lost contact with your father for some years before resuming some contact in 2015. You had limited contact with your mother but resumed that relationship nine months or so ago.
17You participated in air force cadets for a couple of years when you were aged 13 to 14. This was apparently a weekly event in which you participated until you lost interest in that activity.
18You have had only limited employment. Your counsel informed me that you had worked as a labourer in Albury on the nightshift for eight or nine months before quitting that job. You then worked at a steel business for about two weeks before stopping because you did not enjoy the long hours involved.
19This is an interesting aspect to consider. The facts and timing of your offending conduct for which you come before this court indicate your ability and preparedness to move around the streets of Wodonga in the early hours of the morning, on one view in the middle of the night, searching for a motor vehicle to steal. Long hours of socialising and late nights appear to have been no problem to you. One wonders why the long hours of work concerned you.
20I have been informed by your counsel that you had not consumed alcohol for some period of time and that you have got no drug or alcohol issues.
21I was informed at your plea hearing that you have been searching for work and I have been told this morning that you have recently started a job with a concreting company, working five days per week and that you are currently on trial.
22I accept that your plea of guilty to this offence was made at an early time and may indicate some remorse on your part for your offending. It also has utilitarian value in that witnesses are not be required to give evidence at a trial and court resources have not been unnecessarily wasted.
23A report from Carla Lechner, a clinical psychologist, dated 17 November 2018 was tendered on your behalf. She considered that you did not present with symptoms of any underlying mental health problem. Nevertheless she noted your difficult upbringing and she considered that you were cognitively capable of reflecting on the impact of your behaviour on yourself and on others but that you were vulnerable to social and emotional factors which might undermine your judgment and decision making ability. She did not consider that you had any underlying psychological or psychiatric disorder.
24She thought you were likely to benefit in the future from counselling and I consider that your upbringing and vulnerability to which she referred have not been shown to be a contributary factor to your offending.
25Your counsel submitted, and I accept, that a sentence which emphasises the importance of personal rehabilitation was important.
26In all the circumstances I have come to the conclusion that the sentencing principles to which I referred earlier can be satisfied by the imposition upon you of a community correction order of a term of two years, subject to a number of conditions.
27The report I have received from Corrections Victoria dated 27 March 2019 indicates that you are considered suitable for a community correction order.
28Before I am able to impose such an order the Sentencing Act requires that you consent to such order. Before asking you whether you do consent, in fairness I should tell you what conditions I intend to impose.
29Firstly there are mandatory conditions subject to s.45 of the Sentencing Act. They are:
·During the term of the order, that is that is the two year term, you must not commit, whether in or out of Victoria, an offence punishable by imprisonment. If you do that is a breach of this order as well.
·You must comply with any obligation or requirement prescribed by regulations.
·You must report to and receive visits from the Secretary, read for that Corrections Victoria, during the period of the order.
·You must report to the Community Corrections Centre at 9 Watson Street, Wodonga, within two clear working days of this order commencing. It commences today so you would have to report there by 4 pm on Wednesday of this week. If that means you have got to take some time off work, you will have to do so, and you can explain to your employer that it is part of an order of the court.
·In addition, you must notify Corrections Victoria within two clear working days of any change of address or any change of employment that occasions, so within two clear working days if you lose your job, if you change your job, get a new job, whatever it might be, you must tell Corrections Victoria.
·Likewise, if you change your address for any reason.
·You, importantly, must not leave Victoria except with the permission, either generally or in relation to a specific case of the Secretary, and again read for that Corrections Victoria. If you go across the river to Albury you will have left Victoria and you would be in breach of this community correction order that I am proposing. If you have a need to go interstate, whether it is to New South Wales or South Australia or wherever, then you should approach your case manager at Corrections Victoria and tell them about the situation and I suspect in most cases any such reasonable application for variation for permission to go interstate will be granted, but do not just go. If you do, having left Victoria, you are in breach, and you must comply with any direction given by Corrections Victoria that is necessary to give effect to this order.
30In addition to those mandatory orders I intend to impose a requirement that you perform 200 hours of unpaid community work during the course of the two year order, pursuant to s.48C of the Sentencing Act. If you are working Monday to Friday then, as I understand it, those hours of community work can be performed over a weekend.
31I also intend to impose a condition that you be supervised, monitored and managed as directed by Corrections Victoria pursuant to s.48E of the Act. That means, in practice, that you will have to attend, on times to be determined that are suitable for you and suitable for Corrections Victoria, at Watson Street and be interviewed by your case manager, who will keep an eye on what you are up to and how things are going with you. Hopefully what you will be reporting to your case manager on such occasions is that you are travelling well.
32In addition, there will be a condition that you undergo treatment and rehabilitation in respect of mental health problems that may include psychological, neuropsychological, psychiatric, treatment including in a hospital or residential facility pursuant to s48D
33Further, treatment and rehabilitation in relation to drug use and dependency pursuant to s.48D of the Act, which depending on how you are assessed, might require ongoing treatment or might not.
34In respect of this last condition, whilst your counsel at the plea hearing informed me that you had no drug or alcohol issues, the report from Corrections Victoria that I have referred to does indicate that you smoke cannabis socially and has indeed recommended that condition.
35I had considered the imposition of a curfew condition, but on the basis of what Mr Vaccaro has told me, I will not do so.
36I need to ask you at this point whether you agree or consent to such a community correction order with those conditions attached to it. I will give you a moment to discuss that with Mr Vaccaro if you like. Do you want to do so?
37ACCUSED PAGE: I agree.
38HIS HONOUR: Yes, thank you.
39I now turn to you, Mr Love. You are now aged 23. At the time of your offending you were aged 22. You are about a year older than Mr Page.
40I was told by your counsel at the plea hearing that he had found it difficult to obtain any meaningful instructions from you.
41It appears that your father died when you were very young and that you lived with your mother and three younger brothers.
42You left school when you were aged 16 and obtained employment from time to time after that, including in the concrete industry. Your employment record was described by your counsel as being “patchy” over the seven years or so since you left school.
43Your brothers are apparently employed at the local abattoirs and at the time of your plea hearing you were hoping to do likewise in the future. I now understand that you have since obtained employment on a full time basis at the abattoirs and you are still there. Is that correct?
44ACCUSED LOVE: Yes, it is.
45HIS HONOUR: It was submitted on your behalf that since your father's death you have had little parental guidance.
46You have no prior convictions of relevance and there is no suggestion that you have offended since the commission of the offence for which you are now before this court. You appear to have played a role of some significance in the attempt or attempted theft of the boom lift. In your record of interview you admitted to police that you had seen the lift and said to the people you were with and I quote you, "I just said to everyone, 'Let's go and check that out and see if we can get it started or whatever'".
47It appears that you attempted but were unsuccessful in starting the lift. When asked by police what you were trying to do by pushing the buttons to try and start the lift, you said, "I dunno. Just like ride it or drive it away somewhere".
48It should be said that the thought of you or Mr Page driving that boom lift around Wodonga or parts of the town seems to me to only emphasise the dangers involved in driving such a vehicle. Dangers to the residents at Wodonga, their vehicles and other property, and dangers to municipal property. The very thought of the damage that might have occurred had you somehow managed to get behind the wheel and start up the boom lift is simply frightening, in my view.
49You also admitted to police that you had use a T-shirt to cover your hands so as to not leave fingerprints on the machine.
50Nevertheless, I accept that you did cooperate with police and admitted your role in the attempted theft at the earliest opportunity. It is difficult to have great confidence in your prospects for rehabilitation in the future but your obtaining of employment is obviously a good start. It remains of concern to me that it has taken so long for you to have sought employment with the abattoirs notwithstanding that your younger brothers have been employed there for some time. Your attempts to seek employment appear to me to have been belated, to say the least. I am hopeful that your attempts to find employment were not merely made to create an impression to me for your appearance for sentencing today.
51Nevertheless, I am conscious of, and take account, of your relatively young age - both now and at the time of your offending.
52In your case, I have also come to the conclusion that the sentencing principles to which I referred to earlier can be satisfied by the imposition upon you of a two year community correction order subject to a number of conditions.
53Those conditions will include the mandatory conditions set out in s.45 of the Sentencing Act to which I referred earlier.
54In addition, I intend to impose a condition that you also perform 200 hours of unpaid community work during the course of the two year order, pursuant to s.48C of the Act.
55I shall also order that you be subject to supervision pursuant to s.48E of the Act and treatment and rehabilitation in respect of mental health issues pursuant to s.48D(3)(e).
56I need to know whether you consent to a community correction order with such terms attached to it. By all means refer to Mr Vaccaro for advice, Mr Love.
57MR VACCARO: So you consent to that order?
58ACCUSED LOVE: Yes, I do.
59HIS HONOUR: Yes, thank you, Mr Love. On that basis I will make the community correction orders that I have indicated with the conditions as indicated in respect of you both.
60I need, however, before such an order can be proceeded with to get you both to sign the order form indicating that you consent to it being made. So because you are there and we are here I need your signatures and what we are going to do is scan and attach the two orders to emails to the registry at the Wodonga Court and that I am told by Mr Norris, my associate, that that will take a matter of minutes. It may take a little longer but what you will do when you leave here shortly is you will have to go down to registry. Mr Vaccaro will no doubt approach registry and you will be told when the scanned document has been received and you will need to sign it and hand it back to registry at that time.
61MR VACCARO: Yes, I will assist both accused, Your Honour, with that process.
62HIS HONOUR: Yes, good. I should also declare in relation to you both that had you not pleaded guilty to this offence and later been convicted by a jury of it, then I would have ordered that both of you be convicted and sentenced to a term of imprisonment of six months. Are there any ancillary orders sought?
63MR TRIANDOS: Yes, Your Honour. There was a forensic sample order sought in each case.
64HIS HONOUR: I am sure you right. Just let me - yes. Have you got a clean copy of such a draft there? I have got one here but - well, it does not matter, it has got a couple of holes on the side but I do not think that will invalidate it. Pursuant to s.464ZF of the Crimes Act, this applies to you both - just bear with me a moment if you would. Mr Triandos, I have one such order in relation to Mr Page. I do not appear to have an order prepared in relation to Mr Love.
65MR TRIANDOS: Yes, they have been emailed again to you by my instructor to Your Honour's associate just now.
66HIS HONOUR: Just now?
67MR TRIANDOS: Yes.
68HIS HONOUR: Good. Well, that will only take a minute to come through. Such an order, Mr Page and Mr Love, requires you to provide a sample. It is a minor scraping from the inside of your mouth inside of your cheek, which enables the authorities to obtain details of your DNA, which would then be registered on the database in Victoria. The reason why I make such an order is by reason of the seriousness of the circumstances of your offending. I consider they warrant such an order and also the fact that I have been advised that you consent to the order. In those circumstances notwithstanding I am obliged to tell you that if when the time comes for the obtaining of such a sample you do not consent, then Victoria Police are authorised to use reasonable force to obtain such a sample from each you. What it will mean is that your DNA will be registered on the data bank in Victoria.
69I will make those orders later today, Mr Triandos.
70MR TRIANDOS: As Your Honour pleases.
71MR VACCARO: Thank you, Your Honour.
72HIS HONOUR: And you will take the two gentlemen downstairs, as I understand it, to the registry?
73MR VACCARO: Yes.
74HIS HONOUR: Yes, thank you. Can I just give you this one warning, Mr Page and Mr Love? If you breach any of the conditions of the community correction orders that I have made in both your cases, that amounts to an offence in itself punishable by up to three months' imprisonment. It does not take a lot to breach a community correction order. A failure to turn up for a supervision appointment, a failure to turn up for unpaid community work, a failure to turn up for treatment and assessment for rehabilitation, those sorts of things. They can all amount to breaches.
75It is very much in your interests over the two year term of this community correction order that you adhere to the conditions attached to them. It is up to you. Obviously if you commit further offences during that two year period that in itself is a breach of this community correction order. If it came back to court then one of my options would be to re-sentence you in relation to the original offence of attempted theft. Really, you are both at an age now where you should know right from wrong and if you continue to behave as perhaps you have, walking around Wodonga, looking for a car to steal, that sort of thing, then the future is pretty grim for both of you. I suspect if you want to spend the rest of your time walking in and out of police stations and courtrooms and the like, walking in and out of gaol, that is entirely your decision but not a sound one, in my view. Up to you. Yes, thank you. Anything else, Mr Triandos?
76MR TRIANDOS: No, Your Honour.
77HIS HONOUR: Anything else, Mr Vaccaro?
78MR VACCARO: No. No, Your Honour, thank you.
79HIS HONOUR: Thank you.
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