Director of Public Prosecutions v Mitchell

[2021] VCC 643

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 20-00358

DIRECTOR OF PUBLIC PROSECUTIONS

v

WILLIAM MITCHELL

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JUDGE:	HER HONOUR JUDGE GWYNN
WHERE HELD:	Melbourne
DATE OF HEARING:	2 March 2021
DATE OF SENTENCE:	18 May 2021
CASE MAY BE CITED AS:	DPP v Mitchell
MEDIUM NEUTRAL CITATION:	[2021] VCC 643

REASONS FOR SENTENCE

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Subject:  Criminal law

Catchwords:  Aggravated burglary; theft of motor vehicle; burglary; possess cannabis

Legislation Cited:  Sentencing Act 1991

Cases Cited:DPP v Bowden [2016] VSCA 283; DPP v  Hogarth [2012] VSCA 302; DPP v Meyers [2014] 44 VR 486.

Sentence:281 days imprisonment in combination with 2 year Community Corrections Order

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Plummer	Office of Public Prosecutions
For the Accused	Mr M. Sturges	Victoria Legal Aid

HER HONOUR:

1William Mitchell, you have pleaded guilty on indictment to charges of aggravated burglary, theft of motor vehicle, burglary and possession of cannabis. 

2In sentencing you for these crimes I must have regard to the maximum penalty for each of the offences to which you have pleaded guilty. The maximum penalty for aggravated burglary is 25 years imprisonment, for burglary and theft it is ten years imprisonment, and in your circumstances the maximum penalty for possession of cannabis is one of five penalty units. The maximum penalties reflect the seriousness with which Parliament regards the offences. 

OFFENDING

3The circumstances of your offending were set out in a “Prosecution Plea Opening” dated 26 February 2021.  It is what we call an agreed document and confirms your acceptance of all the elements of the offences to which you have entered your pleas of guilty, as well as the factual basis on which I am to sentence.

4Apart from the cannabis offence your offending all took place between 16 and 18 July 2019 in the Mildura area and involved two separate events. 

First incident

5The first incident occurred at the premises of Akin Ciftki in San Mateo Avenue in Mildura.

6On 16 July 2019 he was at home with his partner, Kathy Wighton, and an associate, Jessie Oakley. 

7You attended those premises at approximately 12.30 am in the company of Darcy House and knocked on the door.  You and Ciftki were known to each other, and it was he that responded to your knock.

8You spoke to Ciftki about him having drugs at the premises, the presence of which he denied.  He was then invited outside to fight, which he declined, before closing the door. That should have been the end of the matter.

9Instead a few minutes later a brick was thrown through the window panel adjacent to the front door and you reached through the broken glass to unlock the front door.  The Crown suggest that act was a premeditated one.  I see it was a spur of the moment response to the events which had just unfolded.

10You and Darcy House then ran into the premises, forming the basis for Charge 1, aggravated burglary, which is particularised as entering as a trespasser with intent to steal whilst being aware of reckless as to a person's presence.

11Ms Oakley went into the laundry to hide.  Mr Ciftki went to the rear of the premises and armed himself with a metal pole.  He was then approached by Darcy House who demanded money and drugs.  Ciftki raised the pole in defence of himself and threatened to hit House, who picked up a guitar and threw it at him.

12Around that time you located a set of car keys in the kitchen and motioned towards your pants, saying, 'I'll shoot you cunts’ and ‘I've got a gun here'.  You and Darcy House then left the premises with one of you shouting, 'Take the car, take the car'. The car referred to was a 2003 Hyundai Accent belonging to Ms Oakley.  You entered the car and drove it from the premises, forming the basis for Charge 2, theft of motor vehicle. 

13Police saw you driving the car later that day but you were able to get away from them when they approached.

Second incident

14The second incident occurred two days later on 18 July 2019 at around
4 o'clock in the afternoon.  This time you were with Tyson Mitchell, your nephew.  You both attended at residential premises at 145 Gibb Street, Merbein.

15You waited at the front whilst Tyson Mitchell entered through an unlocked back door and rummaged through various items forming the basis for Charge 3, burglary.  He stole a number of items of property. You are not charged with theft and will not be punished for such. At the time of Tyson Mitchell's entry to Gibb Street a Ms Jemil and her three-year-old daughter were asleep in the front bedroom of the home, although it could not be said that this fact was known to you.

16Tyson Mitchell then left the address and took a motor vehicle parked in the driveway.  He drove from the premises with you as passenger until the vehicle was abandoned five kilometres later as it ran out of petrol.

17On 25 July 2019 you were extradited to Victoria and upon being searched by police in Mildura were found to be in possession of a small quantity of cannabis.  That is the subject of Charge 4 on the indictment, possession of a drug of dependence.

Gravity of offending

18In terms of the aggravated burglary, it is trite to say that it is a serious offence.  I am assisted by the defence referring me to the decisions of the Victorian Court of Appeal, including that of DPP v Bowden [2016] VSCA 283, DPP v Hogarth [2012] VSCA 302, and DPP v Meyers [2014] 44 VR 486. I have recourse to each of those decisions and the others to which I have been referred.

19In the decision of Meyers, the Court of Appeal referred to determining the appropriate sentence for an offence of aggravated burglary through an assessment of the seriousness of the offence, and it included a number of non-exhaustive considerations as being relevant to the assessment process.

20In your case the aggravated burglary involved forced entry to the home of
Mr Ciftki in circumstances where you were well aware that you and Mr House were not welcome, and that at least Mr Ciftki was present.  Your entry was in the early hours of the morning, albeit it would appear the household was still up and awake. Aggravated burglary is an offence complete on entry, but I accept the submission that you would have at least appreciated the prospect for some confrontation once the premises were entered.  When you entered the premises, it was in circumstances where at least one of the occupants knew you and you did so without disguise or weapons and the intention was to steal drugs. There is no reported history of previous animosity and it is most fortunate, particularly in the circumstances that unfolded, that no one was hurt. 

21Whilst no victim impact statement has been filed, your entry was to a private residence, an environment in which the occupants are entitled to feel both safe and secure.

22I do accept the submission made on your behalf that your offending on that occasion was relatively spontaneous, unsophisticated and relatively low level for an offence of its type.  The theft of motor car appears to be particularly spontaneous. 

23Your offending of 18 July 2019 was also relatively minor for the offence of burglary, with you playing the role of lookout. However, this was also offending which again involved entry to a private residence and again you were in company.  As already stated, you are not charged with the theft which then occurred.

24I am told that your offending was primarily drug related that is, either to obtain drugs or items or monies from which drugs could then be purchased.  At the time of the offending you were a regular user of both cannabis and methylamphetamine.

Plea of guilty

25I do accept that your plea of guilty has occurred at a relatively early stage which is in your favour.  You did run contested committal proceedings, but the charges resolved through the case conference process in October of 2020 as part of the court's response to the COVID-19 pandemic. Until the resolution the proposed trial indictment contained some nine offences some of which were more serious in nature than those on the plea indictment. 

26In those circumstances your plea is at an early opportunity and represents you taking responsibility for your wrongdoing.

27Your plea also has utilitarian benefit as it has saved the court the time and expense of contested proceedings and the witnesses the need to have to relive events from July of 2019.  During the court's response to the COVID-19 pandemic your plea has additional utilitarian benefit in the certainty it has given to proceedings, witnesses and to yourself, bearing in mind the considerable backlog and that trials are only just recommencing on circuit.

Prior history

28You do have a relevant prior history. 

29At only 29 years of age you have some 16 court appearances, commencing in 2011 when you would have been around 18/19 years of age. 

30Your offending history includes dishonesty, violence, driving offences and breaches of court orders. To date neither short terms of imprisonment nor supervisory court orders appear to have either deterred or assisted you. 

31Your criminal history would also indicate that you have only just been released from a prison sentence at the time of this offending. On 26 June 2019 you appeared at the Mildura County Court appealing a decision of the Mildura Magistrates' Court from 19 March 2019 in relation to various charges of dishonesty, unlicensed driving, damaging property and violence. The County Court allowed the appeal and you were effectively sentenced to 118 days imprisonment which was reckoned as having already been served.  This would have made you eligible for release around 26 June 2019, only weeks prior to the offending before this court.

32In addition, you appeared in the Melbourne County Court on 27 September 2018 in relation to charges of attempted aggravated carjacking and committing an indictable offence whilst on bail.  At that time, you were convicted and sentenced to 240 days imprisonment in combination with a community corrections order for a period of two years. You would have been subject to that community corrections order at the time of the offending before this court, which is an aggravating feature to your offending of July of 2019.

33To some degree your prior history is explained by your personal circumstances to which I will now turn. 

Personal circumstances

34]You are a 29-year old Barkindji man born in March of 1992 to parents, Laurence and Alison, who have supported you in your last two court appearances.

35You have a brother, Trevor, and two sisters, Lauralee and Nancy.  At least two of your siblings have also had difficulty with the criminal justice system. 

36Your parents remain together and, importantly, remain supportive of you.

37Your family moved from Dareton, New South Wales, to Mildura in 2001.  Whilst born in Mildura you were initially raised on an Aboriginal settlement on the outskirts of Dareton, north of Mildura.  You returned to Mildura as a family in an effort to avoid exposure to violence on the settlement.

38At age 11 you were identified as having an intellectual disability.  You were referred to disability services within the then Department of Health and Human Services for assessment for eligibility for services. You were provided with disability specific case management services who liaised with the Education Department to facilitate your return to school after approximately a two-year break.

39You did manage to attend school until Year 10 but were the subject of bullying and were also described as a disruptive student who struggled in the classroom.  You were frequently suspended or expelled.  This may well be related to your disability, as well as to the simple fact that you were and unable to read and write. School would have been a very challenging environment for you on a number of levels. 

40You have not had employment but do receive a disability support pension.  Your illiteracy has meant that you have been unable to obtain a driver's licence.

41I understand that you have two children of your own, sons, Nahla and Nikala, who you have not seen for some seven years.  I am told you are interested in starting to make efforts to recommence a relationship with each of them.

42You were introduced at a young age to drugs by other family members.  Cannabis use commenced at around the age of 11 and alcohol use at around the age of 15.  In more recent times your drug use has been focussed on cannabis and the drug ice.

43On your behalf, a report authored by Dr Linda Borg, clinical neuropsychologist, dated 16 June 2018 was tendered.  This confirmed your mild intellectual disability with associated learning difficulties, and that you were likely to also suffer foetal alcohol spectrum disorder. Your impairment is one which will characteristically lead you to experience difficulties with reasoning, judgment, as well as with learning from experience.  You struggle to think through consequences for your actions and predict outcomes from your behaviour. Your ability to make calmly informed choices is compromised and you have a demonstrated lack of capacity to consider situations from a perspective other than your own.  In that report your full-scale intelligent quotient was identified at 56, essentially meaning 98 per cent of the population would perform better.

44You require support and assistance to function in the community. 

45A report, also authored by Dr Linda Borg, dated 5 April 2021 has also been tendered on your behalf. 

46In that updated report she expressed concern that you were not putting forth your best effort to tasks allocated to you in order for her to complete her assessment. Be that as it may, she remained of the view that your cognitive difficulties exist and are secondary to foetal alcohol spectrum disorder.  This particular neurodevelopmental disorder she considered to be permanent in nature. She did not identify any appreciable deterioration in your cognitive function from her previous assessment.  She did identify an improvement in your capacity to monitor and regulate your own behaviour albeit ongoing deficits remain.

47You can apparently manage the prison setting, benefitting from the routine of that environment, but I have some concerns about its undesirable influences.  Dr Borg confirmed your capacity to reflect on your own behaviour and express remorse is somewhat limited by your degree of cognitive immaturity and tendency for egocentric thought processes.

48Importantly in Dr Borg's opinion, your current condition is considered a likely contributing factor to your offending behaviour.  Your level of cognitive function suggests that you will tend to be driven by emotions, impulses and your immediate needs, rather than rational thought. You are likely to engage in opportunistic offending behaviour without thought to the consequences.  This would of course be compounded when you were substance affected, hence the importance in your remaining drug free.

49In Dr Borg's opinion the biggest barrier to your rehabilitation are your cognitive limitations, drug abuse, as well as the presence of emerging psychotic features and maladaptive personality characteristics.  At this stage at least, two of these factors appear to be being addressed, as will be outlined by me at a later stage.

50I am satisfied that the contents of her unchallenged reports reduces the moral culpability for your offending and lessens the weight that should attach to both general and specific deterrence as it does to denunciation.  Appropriate concessions were made by the Crown. The same factors she identifies, however, do raise concerns about, firstly, your prospects for rehabilitation, and secondly, the need to protect the community from you. 

Prospects for rehabilitation

51In terms of those prospects for rehabilitation, your prior history, offending shortly after release from custody, and whilst subject to a community corrections order, coupled with your difficulty in managing your own behaviour, which is at least partly, if not mostly, related to your intellectual functioning would at first blush see your future prospects being assessed as bleak.

52Yet on the materials before me there is reason for some optimism. 

53Firstly, as a direct consequence of your offending you spent some 281 days on remand.  I am told you were granted bail on 29 April 2020 and I do not understand that you are alleged to have been involved in any further offending since that time, a period in excess of 12 months. Having regard to your prior history and your personal challenges this is a significant matter very much in your favour. 

54In addition, there have been delays in finalising this matter as you have had one hospitalisation and suffered two deaths within your family which have meant you have been unable to attend court on three separate occasions, such that your case is being finalised today, some 22 months after you were charged. The tragic circumstances of recent family loss are likely to have amounted to high stress situations, yet you have not resorted to drug use, you have not resorted to criminal behaviour.

55You were linked in with Northern Mallee Mental Health Services after being diagnosed with your first episode of psychosis - as best that I can place it - in September of 2020. You now take monthly depot injections which have assisted you with stability in your mental health.  This you use as a motivator to avoid drug use.  You are described in documents tendered as being compliant with treatment and are therefore a voluntary patient. Your treatment would appear to be ongoing an, importantly, effective. 

56You resided at home with each of your parents, who as I say, remain supportive of you.  They are able to assist you to get to appointments and with transport needs. They also assist with daily care needs, which include meal preparation, cleaning, laundry and your financial management. 

57You have been abstinent from ice use for a period in excess of 18 months and have significantly reduced cannabis usage. You ultimately want to give up using cannabis as well.  Not using drugs reduces your risk of reoffending, as well as the motivations for it.  You have not used alcohol for in excess of five years.

58Your Counsel submits that a proper consideration of all relevant sentencing considerations could be reflected in what is described as a combination sentence, that is, a period of imprisonment in combination with a community corrections order.

59The Prosecution submit that I should fix a head sentence with a non-parole period. 

60In order to be better informed I had you assessed as to your current suitability for a Community Corrections Order with a Justice Plan attached.  A Justice Plan can only attach to somebody recognised as being intellectually disabled, as you are.

61An Extended Pre-Sentence Outcome report dated 8 April 2021 has now been provided.  You have a poor history of compliance with court orders, including those in both the Children's Court and the adult system.  You have in fact never completed an order supervised by adult correctional services, and you were assessed by them as presenting with a high risk of reoffending.

62In that report it is suggested that if a corrections order is made, the assessor indicates that you would be referred to the men's case management service at Mallee District Aboriginal Services in order to link you in with prosocial supports. I am told that this service would offer you cultural camps and outings supported by staff at the service.  This would appear to be a positive intervention. 

63You told the assessor that you were disappointed in yourself for your offending, and the impact your actions have on others, particularly your parents. Hopefully this will stay with you into the future as you will not want to disappoint your parents again. 

64Whilst expressing reservation, the assessor notes recent changes in your situation and your engagement with the Mildura Base Hospital as a positive one. Effectively you are assessed as being suitable for a corrections order. 

65I have also received a disability overview report dated 7 April 2021, authored by Robyn Guransky.  You are described as presenting as cooperative, respectful and that you participated in the assessment process. You expressed a willingness to engage with Disability Justice Coordination and to participate in any recommended services.  You are familiar with disability services as well as the author of that report. 

66I was told that disability services can assist you to access the NDIS scheme for assistance to build your independence, and your competence with daily living skills. Today I am told that a plan has been approved as of yesterday, being 17 May 2021. 

67A Justice Plan also authored by Robyn Guransky and also dated 7 April 2021, has been received and recommends that you engage with a disability justice coordinator to attend appointments and undergo assessments as requested. It recommends that you participate in any forensic disability supports and/or treatment that are identified by the disability justice coordinator, and that you participate in the referral and assessment process for clinical services and programs and participation in offending behaviour programs as recommended. These appear to be sensible recommendations capable of providing you with additional assistance to manage in the community and more importantly to avoid further offending. 

68Your response to bail, mental health services and lack of reoffending in high pressure situations in the face of your cognitive limitations would indicate that there is presently less need to protect the community from you. This position can be reinforced by appropriate therapeutic interventions. 

69In terms of the sentencing process, the basic purposes for which a court may impose a sentence include punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community. In sentencing you I am required to have regard to a range of matters such as the seriousness of the offending, your culpability for it, your personal circumstances and those of your victims.

70I must also balance the interest of the community in denouncing criminal conduct with the interests of the community clearly has in seeking to ensure, as far as possible, that offenders are rehabilitated and are reintegrated into society.

71In the sentencing process I have taken into account the relevant sentencing guidelines referred to in s.5 of the Sentencing Act 1991 where relevant to your case. I have also taken into account current sentencing practices for the offences to which you have pleaded guilty, and the principles of both totality and proportionality.

72In relation to Charge 4, which is the possess cannabis charge, you are convicted and discharged, bearing in mind the principles of proportionality and totality to which I have just referred and your obviously limited income.

73For the remaining three charges of aggravated burglary, theft of motor car and burglary, I propose to impose an aggregate sentence as I am satisfied that the offences are effectively founded on the same facts, or form, or are part of, a series of offences of same or similar character.

74Courts now have more discretion in terms of choosing a sentencing disposition which does enable all of the purposes of punishment to be served simultaneously in a coherent and balanced way in preference for the option of imprisonment which is skewed towards both retribution and deterrence, factors which have less weight in the overall sentencing mix for you.

75Whilst the path to rehabilitation may be a difficult one for you, it seems your ability to access appropriate services now has a role to play.  A Community Corrections Order can be punitive, achieve deterrence, and may be suitable even in cases of relatively serious offences which might have otherwise attracted an immediate term of imprisonment.

76There seems little merit given your extended period of compliance with community's expectation in reversing the efforts you have made and further entrenching you into the criminal justice system.  Overall, in my view, it would be a retrograde step to return you to the custodial setting.

77Accordingly, in relation to Charges 1, 2 and 3, you will be convicted and sentenced to 281 days imprisonment of which 281 days are reckoned as having already been served.  This term of imprisonment is in combination with being convicted and placed on a Community Corrections Order for a period of two years.

78Subject to your consent, the corrections order will have you supervised by the Office of Corrections, receive assessment and treatment including testing for drug use and abuse, mental health assessment and treatment, and compliance with the Justice Plan.

79I do not intend to impose community work as material tendered would indicate that you can be easily influenced by others and there is merit in helping you avoid poor associations, associations which you could be at risk of making on community work sites. More importantly it takes into account the simple fact that you have served 281 days in custody as a consequence of the offending and the fact that an order will be hanging over your head for some time.

80I do intend to have you judicially monitored.  This means you will have to regularly appear before me and I can keep track of your compliance with the corrections order, together with my intention to ensure that the Office of Corrections actually engage appropriate interventions in a timely manner and you are not left hanging.

81The judicial monitoring can take place remotely via video link from Mildura and will not require you to come down to Melbourne for their purpose.  In addition to the conditions that I have imposed there are standard conditions.

82The first condition is you cannot commit further offences punishable by imprisonment while the order is in place.  You must also report within two working days to your Corrections office in Mildura.  You are required to tell your Corrections office if you change address or change work and need to do so within two days. It is certainly a term of corrections orders that you submit to visits as directed and obey the instructions and directions of a corrections officer.  You cannot leave Victoria without their permission either, so if you need to do that you need to get that permission.

83In my view this order presents you with a chance to keep changing your life in a positive fashion should you choose to take up that opportunity, and the supports that should be made, and I intend to be made available.

84As I have said, this order can be breached if you do not comply with the conditions, or if you reoffend by an offence punishable by imprisonment whilst it is in place.  If you do you have to come back here for breaking the order and I may have to resentence you for the three charges for which you have just received the combination sentence.

85Section 6AAA of the Sentencing Act requires me to state the sentence I would have imposed if you had not pleaded guilty.  If not for your pleas of guilty, I would have sentenced you to two years and two months with a minimum of
14 months before being eligible for parole.

86Mr Mitchell, I am going to give you the chance to speak to Mr Sturges.  The upshot is you are not going back to gaol, but you are having a corrections order for two years and you are going to some and see me regularly.

87So once that is printed out I will get Mr Sturges to take you through it.

88MR STURGES:  Thank you, Your Honour.

89HER HONOUR:  I cannot put you on that order unless you agree to it so I will give you the time to speak to Mr Sturges.  We need a judicial monitoring date in about three months' time so things can kick off.  30 July will be the first time you will have to pop your head up and see me.

90As I said, we can do it over the screen.  You can do it from the Mildura Corrections Office if they will let you, which they probably will, given all the COVID restrictions have gone.  Mr Plummer, anything I have missed from your end at this stage?

91MR PLUMMER:  No, Your Honour.

92HER HONOUR:  Mr Sturges?

93MR STURGES:  No, thank you, Your Honour.

94HER HONOUR:  I am going to get that order printed out and I am going to ask you to take Mr Mitchell through it and you can let me know when I come back whether he is going to sign it or not.

95MR STURGES:  It should be pretty quick hopefully, Your Honour.

96HER HONOUR:  You take the time that you need.  I will stand down temporarily.

97MR STURGES:  Thank you, Your Honour.

(Short adjournment.)

98MR STURGES:  Thank you for that time, Your Honour.  I have gone through each of the conditions with Mr Mitchell.  He consents to the order.

99HER HONOUR:  That is good news.  I have signed it so you and I have both signed this, Mr Mitchell.  I am going to see you I think I said on 30 July at
10 o'clock.  I will have a report.  Office of Corrections will write me a report.  I only want to read good things.

100You have done it for so long now you can keep it up.  Remember you do not want to disappoint mum and dad.

101OFFENDER:  Yes, Your Honour.

102HER HONOUR:  I thank mum and dad for coming down the times that you have come down.  I wish you luck too.  Mr Plummer, thank you very much for your assistance.

103MR PLUMMER:  Thank you, Your Honour.

104HER HONOUR:  Mr Sturges, thank you for yours.  I will close the court.

105MR STURGES:  Thank you, Your Honour.

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