Director of Public Prosecutions v Martin

[2019] VCC 1782

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-01126

DIRECTOR OF PUBLIC PROSECUTIONS

v

NATHAN MARTIN

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:	15-23 July 2019, 30 October 2019
DATE OF SENTENCE:	30 October 2019
CASE MAY BE CITED AS:	DPP v Martin
MEDIUM NEUTRAL CITATION:	[2019] VCC 1782

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Glynn
For the Accused	Mr D. Sala

HER HONOUR: 

1Nathan Martin, a jury has found you guilty of one charge of attempted aggravated burglary and one charge of threat to kill.  You were charged with aggravated burglary, the charge of attempted aggravated burglary going to the jury as an alternative. You were found not guilty of aggravated burglary. 

2The facts underlying your offending are as follows: 

3At the time of the offending, which occurred on 21 November 2017, you were residing at Unit 11, one of a block of flats at 1218 Dandenong Road, Murrumbeena. 

4On the evening of 20 November 2017, Bryce Archer, who was a friend of yours, visited his uncle, Robin, and ended up staying the night at his house in Carnegie.  Robin brought Bryce to the block of flats at 1218 Dandenong Road, Murrumbeena, where he lived at Unit 3, on the early-afternoon of 21 November.

5At about 8am that day, you telephoned Caulfield police station, reporting that your apartment had been burgled and property had been stolen, including some prescription medication.  You told police that you thought your neighbour, Hussein Abdi, was involved in the burglary.  Mr Abdi lived in Unit 10 in the same block of flats with his nephew, Ali Abdigali.

6When the Archers arrived back at the block of flats, they saw you kicking at the security door of Mr Abdi's flat, the landing being visible from the car park.  They spoke to you and went with you to your unit, where you told them that your neighbours had broken into your flat and stolen your medication.  The three of you then went out onto the balcony of Unit 10. 

7One of the three of you knocked on the balcony door, at which stage Mr Abdigali was home alone in Unit 10.  The three of you went in and Mr Abdigali was accused of entering your flat and stealing your medication, he denied this. 
A fight then broke out and after it finished, you took a number of items that were in the living room of the flat, including a phone, wallet, laptop, portable speaker, phone charger and USB cable. 

8Robin Archer then invited you back to his house for a meal in order to get you away from the units, in the hope that the situation would be diffused.  You went back to his home in Carnegie, where you fell asleep.  The Archers used the opportunity while you were asleep to gather up the items you had taken from Mr Abdigali's apartment and take them back to Unit 10.  There they spoke to Mr Abdi, who had returned home and showed the items to him and then they went back to Carnegie.  It appears that when they were gathering up those items, they mistakenly also gathered up your mobile phone and took it with the other items to Mr Abdi's apartment.  Mr Abdigali reported the first incident to police that day and police attended.

9Later in the evening, the Archers took you back to your flat and were with you there, when at about 10.30, you realised that your phone was in fact missing and became enraged.  You armed yourself with a knife and went out onto the balcony to the balcony door of Unit 10.  At this time, both Mr Abdi and
Mr Abdigali were at home.  You banged on the balcony door, screaming out to the occupants and asked where your phone was.  Mr Abdi went to the door while Mr Abdigali stood behind him.  The door opened and you were seen to be standing in the doorway. 

10It was the prosecution case that you in fact stepped into the apartment, but it seems clear that the jury were not satisfied beyond reasonable doubt that that had occurred and so the situation before the court, in terms of the scenario for which I must sentence you, is one that the door was opened but you did not step inside the flat.  Once the door was opened, Mr Abdi wrestled you for control of the knife and you were grabbed from behind by Mr Robin Archer to restrain you.

11So the basis of the jury verdict clearly, in my view, is that although you were prevented from entering the flat, you had the intention of entering the apartment and assaulting a person on the premises and it is on that basis that you have been found guilty of attempted armed robbery.

12You also, at the time, loudly threatened to kill both Mr Abdigali and Mr Abdi. 

13Originally there were two charges of threat to kill laid, one in relation to Mr Abdi and one in relation to Mr Abdigali, but ultimately only one charge of threat to kill in relation to Mr Abdi was laid.

14You were found guilty of threatening to kill Mr Abdi. 

15Eventually the Archers managed to get you back to your flat and the knife was hidden under a couch.  The matter was reported to police whilst the incident was ongoing and police attended at about 10.42pm, at which time you were arrested and taken to Moorabbin police station. 

16During a record of interview, you complained about the burglary that you believe had occurred in your own apartment, which you thought had happened via the balcony door.  You reported your medication had been stolen, that you believed your neighbours at unit 10 were responsible, that you had gone to them to ask for your property back, and you denied being in possession of a knife.  You denied making any threats and you denied entering the unit.

17I now turn to your personal circumstances.  You are now 36 years of age.  You are the older of two boys born to your parents who separated when you were seven to eight years old.  You remained living with your mother, although you reported to psychologist Carla Lechner, whose report dated 9 October 2019 was tendered at the plea, that you had a strained relationship with her.      Your counsel informed me that you chose to live with your mother even though you had a much closer relationship with your father, because particularly as a teenager, you realised there was very little supervision, because your mother was more interested in her own pursuits.  She re-partnered and apparently your step-father was violent towards you. 

18You told Ms Lechner that you had a relatively normal and happy time at school and made many friends, but that the academic side of schooling did not appeal to you in any way. 

19You have a particular love of jewellery making but did not obtain the marks to get into the sort of course that you would be required to do to undertake that profession. 

20You left school when you were 17 and met a man who organised the Big Day Out event, and for the next 10 years you worked in the organisation side, if I could put it that way, of the music industry, travelling on tour with various groups but being responsible initially for building stages, setting up the apparatus and equipment required to put on concerts. You rose through the ranks, as it were, to a more managerial position where you were in charge of payroll and generally attended to the organisation of the supporting apparatus, rather than putting it up yourself. 

21Your counsel told me that you worked in this industry for a decade, as I have said, but it was an extremely punishing and demanding routine that you had to follow and you told Ms Lechner that at time you were working up to 120 hours a week and you simply burnt out. 

22You then obtained a forklift licence and have worked as a forklift driver on an intermittent but steady basis ever since.  In other words, you have a good work history.  However, you worked as a young man in an industry where drugs and alcohol were rife and unsurprisingly, like so many in that industry, you developed problems in relation to both. 

23You began using marijuana in the normal way that many teenagers do, but progressed in the industry to using a whole array of drugs, including heroin, psychotropic drugs and most damagingly, amphetamine and
amphetamine-based drugs, they being useful in particular to somebody who worked the extraordinary hours that you had to.  Eventually you became a heavy ice user.  You told Ms Lechner that you have used ecstasy, cocaine, magic mushrooms and LSD heavily and a small amount of GHB.

24You have some prior criminal history, although the offending that has brought you before this court is by far the most serious offending you have been engaged in.  Your offending history goes back to 2004, where you were dealt with in New South Wales for summary matters such as driving offences and using offensive language.  In the Ringwood Children's Court you were dealt with for using indecent language.  In 2010 there was a drink-driving charge before a Magistrates’ Court.  You were dealt with for possession of heroin in 2011. 

25There are other fairly minor bouts of offending, such as failing to produce a valid ticket in a designated area.  You were dealt with in 2014 for possession of amphetamine and assaulting police.  In 2015, you were given a 12-month community corrections order for a charge of blackmail, which was dealt with in this court and I have read the judgment of Her Honour Judge Douglas in that case.  I will not bother going into the details, but it is quite clear Her Honour found that that form of blackmail fell at the lower end of the scale in the range of seriousness available for that type of offending and hence you were dealt with in that way.

26Your last appearance in court was in 2016 for charges of obtaining property by deception, dealing with the proceeds of crime and some minor cycling-type offences and again you were placed on a community corrections order for
18 months.  You were still on this order at the time of this offending. 

27Over the years it appears that whilst you have been able to keep working, drugs have, at times, got the better of you.  You were bailed several weeks after being charged with these offences and found yourself homeless.  Prior to that you had always managed private rental. 

28It was during that period of time of homelessness that most unfortunately, you witnessed a very nasty and violent murder of a homeless man and it would seem clear, according to investigations by Ms Lechner, you developed a
post-traumatic stress disorder in response.  That is a matter of importance to the court because it means that when sentencing you, I have to take into account the fact that you do suffer from a serious psychological condition which is likely to make service of a term of imprisonment for you more difficult than for the normal prisoner. Otherwise it would appear you have very much settled down in gaol.  I am not saying for one moment that you enjoy being there, but you were placed in custody at the end of the trial and since being in custody, you have refrained from using drugs. 

29Indeed you have undertaken a 24-hour drug and alcohol program.  You have undertaken an English and maths program and importantly, you are undertaking a computer design program because you have always regretted not exploring the more artistic side and expressive side of your capacities and the program you are undertaking is one which allows persons to work in the design industry, even as engineers.  You are hoping perhaps ultimately to qualify in this field and when you are released from custody to seek employment in that field. 

30It was conceded by your counsel from the outset that I should deal with you by way of a term of imprisonment.  An attempted aggravated burglary has a maximum penalty of 20 years' imprisonment.  The charge of threat to kill carries a maximum penalty of 10 years' imprisonment.  They are serious crimes.  I am not able to give you the benefit of a discount for remorse, as you pleaded not guilty to the charge, but I do bear in mind that indeed that challenge to the prosecution charge was, to some extent, successful, in that you were found not guilty of the more serious charge of aggravated burglary. 

31However, it is perfectly clear that persons who act in the way that you acted on this occasion, attempting to break into someone's house to assault them whilst armed with a knife and threatening to kill them is serious violent offending and the principle of general deterrence, that is sentencing which sends out a message to those in the community that if they behave in that same way, they can expect a gaol sentence and specific deterrence, that is, a sentence designed to, if I can put it that way, teach you a personal lesson, are important in this sentencing exercise.

32I note that it has been difficult for you; you continue not to accept that you were involved in this offending, but I am left with a scenario where a jury has found that you have, Mr Martin, and so I must sentence you accordingly. 

33You enjoy some good family support.  Your father, grandmother and partner of some years were present during the plea to support you.  Your partner was present at the trial.  So I am satisfied you have persons who will support you in the community. 

34In sentencing you, I also take into account your very good work history.  I note that at the time of this offending, you had suffered a serious injury and were very dependent on Oxycontin, which is in itself an addictive opiate-based drug, but it is clear you had been most dependent upon it and your discovery of it being missing, together with your other drug needs, it would seem underlay this offending, which I must say, appears to be out of character.  You do not have a long history of violent offending.  Again, as I have said, this offending is by far the most serious offending that, in my view, you have ever engaged in. 

35In all the circumstances, I do accept that a term of imprisonment is the most appropriate disposition that I should impose in this case, but in my view, mitigating factors such as your family support, your progress in gaol, your good work history and your limited and far less serious criminal history, mean that
I should moderate that sentence somewhat.  The sentence is also moderated by the fact that you are suffering a post-traumatic stress disorder. 

36I have also been impressed, as I have said, by your progress in gaol.  It is very difficult to say what your future is going to be, Mr Martin.  You are really getting to the age where, unless you make a real decision about drugs, things are not likely to get better for you.  You appear to be a man of some talents, so it is to be hoped that when you do come out of gaol, you can continue with the sort of future a man of your intelligence could carve out for himself. 

37I therefore sentence you as follows.  Sir, could you stand up please.

38On the charge of attempted aggravated burglary, you are sentenced to a term of imprisonment of two years and nine months.

39On the charge of threat to kill, you are sentenced to six months' imprisonment.

40I order that three months of that sentence be served cumulatively to the sentence imposed on Charge 1, giving a total effective sentence of three years.

41I order that you serve a minimum term of 18 months before becoming eligible for parole, sir.

42I declare that - how many days?

43MR SALA:  118, Your Honour.

44HER HONOUR:     118 days of that sentence have already been served by way of pre-sentence detention.  All right? 

45MR GLYNN:  If Your Honour pleases.

46MR SALA:  If it pleases the court.

47HER HONOUR:  Thank you very much. 

48MR GLYNN:  And did Your Honour make the disposal order?

49HER HONOUR:  Yes, I will make the disposal order.  Have I got a copy of it on file here?  Or have I ‑ ‑ ‑ 

50MR GLYNN:  I am being told it's been e-lodged.

51HER HONOUR:  Yes.

52MR GLYNN:  The dreaded e-lodging, Your Honour.

53HER HONOUR:  Have I managed to lose it?  Or has it not been printed out perhaps?  Have a seat, Mr Martin.  Here it is.  Thank you. 

54I wish you well, Mr Martin.  It is, you know, this is - you are unlike so many people who appear in front of me.  You are certainly a man with a future and
I really do hope you manage to come out of gaol, put this behind you, put the drugs and the alcohol behind you and really carve out something for you that is going to serve you well in the lon-term, sir.  You have got a good work history.  You have clearly got some brains and I am quite sure that that can happen.

55OFFENDER:  Thank you, Your Honour.

56HER HONOUR:  Thank you very much.  I thank counsel for their assistance.  We will adjourn to 9 o'clock tomorrow morning.  Thank you.

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