Director of Public Prosecutions v Mitchell

[2016] VCC 1233

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

AT MILDURA
CRIMINAL JURISDICTION

CR 15-01484

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOHNATON MITCHELL

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Mildura
DATE OF HEARING:
DATE OF SENTENCE:	23 August 2016
CASE MAY BE CITED AS:	DPP v Mitchell
MEDIUM NEUTRAL CITATION:	[2016] VCC 1233

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

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J. Taylor
For the Accused	Mr N. Goodfellow

HIS HONOUR: 

1Johnaton James Mitchell, you have pleaded guilty to one charge of aggravated burglary and one charge of theft.  Those crimes have a maximum penalties of 25 years and ten years respectively.  You are now 24 years of age, and you were 21 years of age at the time of the offending, and clearly therefore, a youthful offender. 

2The offending is now some three and a half years old and I take that into account, it having been an extensive delay, particularly in the case of one so young.  I attribute no blame for the causes of that delay other than to say that is what has occurred and it is a - in your particular situation - a very cogent matter.

3You ultimately pleaded guilty to a settled indictment and I give you the benefit of that.  You must also of course get the utilitarian benefit of that plea of guilty in terms of furthering the interests of justice and avoiding what would have been an interesting - I daresay - trial. 

4Those matters go very much in your favour.  You do have a prior criminal history that is clearly not as bad as it sometimes is in the case of somebody who has a background such as yours. 

5The Crown very properly pointed out to me that you have one subsequent matter of significance other than some driving matters which was dealt with the Magistrates' Koori Court back in January.  You were placed on a non-conviction adjournment.  That adjournment had with it certain conditions which I intend to impose on a similar disposition that I will be imposing very shortly. 

6In your situation, I am satisfied that you have suffered - or suffer and have suffered now for some significant time from a condition of schizophrenia for which you are on a disability pension. 

7Clearly, in the circumstances of this offending where you were heavily drug affected and you had that already by then that diagnosis that gives rise to the application of the principles of Verdins in both relation to the moral culpability, in my view, general deterrence and potentially in your case at least, specific deterrence.

8Having had the benefit of speaking to you and listening to you speak to the elders during the course of the Koori Court sentencing conversation, it is clear to me that you are indeed somewhat child-like.  I think that for you to be placed in an adult custodial environment would be a terrifying and have very, very detrimental consequences for you.  I bear that very much in mind despite the disposition I am to impose.

9In Koori Court, you showed appropriate respect for the elders and those around you, and whilst shy and guarded at first, opened up and told them a number of things about yourself.  It is those things that you were able to able to explain to them and the medical material has been provided from the Tristar Langtree Avenue Psychiatric Clinic that gives me confidence that your prospects for rehabilitation should be pretty good and the risk of you offending - if you can stay on the track you are on - should be relatively limited.  I take all those matters into account. 

10However, a summary of the offending is that you have been with a number of other young people who I understand to be Kooris as well and each and every one of you would appear to be drug and/or alcohol affected over a significant period of time.  The amended Crown opening has been tendered in this matter and I don't need to go into the great detail other than to describe in very simple terms what occurred in a house on that day in January 2013. 

11At approximately 7 pm in the evening, a Mr Cower went to the door and someone asked to see Sam.  I am not going to go into the names of all these people other than a man called Yates - sorry - a man called Yates and another, Ecert.  Mr Yates has been sentenced for this already.  Ecert, as I understand it, is in gaol in New South Wales and will ultimately be extradited. 

12When one of the occupants of the house went to the door, there were three men and two women.  They wanted a jug of water because the car had been overheating, he was told, and he was then asked if two cigarettes could be supplied. He went inside to get two cigarettes and told your group to wait outside - about five of you. 

13When he came out of the room with the cigarettes, he saw the three men - which included you - I accept, Mr Mitchell - in his lounge room.  One was holding wire cutters that did not belong to the victim. Another one picked up an old fire extinguisher.  I accept that neither of those two was you. 

14The Crown say that Yates had the fire extinguisher and that Ecert had the wire cutters.  There is no dispute with that.  They told the victims to come and sit nearby while you, Mr Mitchell, ran around the house apparently saying, "Where's the money?"  You were told there was not any money but you located two money tins in the house and took them. 

15The two men then - or at some stage - directed the two victims to lie face down on the ground and they could hear searching while this was going on. 

16You searched while Yates apparently stood guard.  In the end, three phones, two money tins containing approximately $100, a laptop computer, a GPS unit, a home phone, a Sony camera and a Dick Smith television were all taken.

17You all then got back into a white Commodore and the two females that were there got into the vehicle and drove the three of you men away. 

18There was then a series of investigations and a somewhat chequered history of the matter until you ultimately pleaded guilty to the offending. 

19Your co-accused, Yates, who had some prior convictions was sentenced to be imprisoned for three years.  He in fact was sentenced for two armed robberies and that is a very different situation to yourself. 

20I take into account the references from the victim impact statements that are included in the sentencing remarks of Judge Harbison and I accept for these sentencing purposes that the invasion of a home for the purposes of stealing is a very frightening experience indeed, and I have no doubt that each of the victims suffered from that fear. 

21Your situation is different in that there is no evidence to establish that you were aware that the weapons were being used and that is indicative of the fact that the armed robbery charges relate to the others but the Crown have accepted a lesser charge - certainly in terms of moral culpability in my view – for you. 

22Accordingly, I have to be careful to simply sentence you for entry into the premises - where you know somebody was - for the purpose of stealing and that you did in fact then steal. 

23The offending has to be regarded as serious.  It is not trivial.  You were clearly suffering from mental illness at the stage and severe difficulties with drugs.  This sort of offending cannot be allowed to be seen as inconsequential and a significant - or what appears to be a significant sentence should be imposed.  As I have indicated, I have taken into account the reference at least to the victim impact statements contained in the sentencing remarks of Judge Harbison. 

24You have an unfortunately similar background to many of the young people that are sentenced both in this court and in the mainstream courts and in the Koori Magistrates' Court.  You were - from a young age - brought up in very difficult circumstances.  You have done your best, I anticipate.  You are one of a dozen children.  As you told us, your father died when you were young and the family has had serious difficulties since then. 

25On the way that the conversation took place and the way Uncle Pete and Uncle Mark spoke to you during the sentencing conversation, I am prepared to accept that you are child-like and whatever Judge Harbison may have thought about all of this in sentencing just one person, it will be my view that you are a follower and will be talked into these things by others. 

26It is to be hoped that as you indicated during the course of the sentencing conversation, that you are going to try and stick to yourself, stay away from the others.  You said that sometimes you will leave the mission where you live in and go with them and do "stupid things".

27I am going to give you a suspended sentence Johnaton, so please do not do anything stupid in the future all right?  If you are brought back, I have to do something ugly, all right?  And you understand what I am saying to you?

28All right.  Clearly, the matters referred to the decision of Bugmey apply here.  The principles in Verdins apply here.  You are a young offender and you can call those matters into account.  The delay as I have already indicated is of significance here and you have probably spent a relatively long period of time worried about the potential consequences of all this, and having had it hang over your head. 

29You have a partner.  You have accommodation and you have a small child living with you who you clearly love and clearly do your best to look after. 

30It is the duty of the courts from the community's point of view to try and further assay the situation so that you are not a danger to yourself and you are not a danger to others.

31I make an order pursuant to s.464Z of the Crimes Act that you provide a saliva sample for DNA purposes.  I must advise you that if you refuse to provide such a sample, police may use reasonable force to take it from you. 

32Can I suggest that while you are here, it might not be a bad idea to just go next door with this and do it straightaway, Mr Goodfellow, if that can be organised? 

33MR GOODFELLOW:  Yes, Your Honour.

34HIS HONOUR:  Just so it does not get forgotten and we do not have any later problems. 

35MR GOODFELLOW:  As Your Honour pleases.

36HIS HONOUR:  I think he can do it on the spot at this police station. 

37All right.  There are no - I do not know if I have asked you - there are no disposal orders any, were there?

38MS SUGARS:  No.

39HIS HONOUR:  All right.  Well, accordingly, taking all those matters into account and the general sentencing principles within s.5 of the Act, on the charge of aggravated burglary, I sentence you to be imprisoned for a period of three months.  I direct that that sentence be wholly suspended for a period of six months. 

40On the charge of theft, I order - and if you agree - that you be placed on a "with conviction adjourned disposition" to 23 August 2017 to be of good behaviour.  The only condition being to engage in treatment through Mallee Family Care and Tristar and follow their treatment and advice. 

41That will be the only condition, all right?  I do not want to put them in the position of police officers but he is clearly going there already.  The Magistrates' Court's one that is in existence has got to produce - my understanding is that that has been done.  And I am satisfied from the letter that has been tendered on his behalf that in fact he still attends and I think that is a very, very good idea. 

42All right.  So if we can produce the adjourned ‑ ‑ ‑ 

43VOICE (from body of court):  (Indistinct words.)

44HIS HONOUR:  I cannot hear you. 

45VOICE:  (Indistinct words.)

46HIS HONOUR:  No.  No.  To engage in treatment through Mallee Family Care and Tristar and follow their treatment and advice.  All right?  And with conviction to that date. 

47Just stand up for a second, Johnaton.  I am going to get you to sign and Nick will come down there but - to sign a same sort of adjournment as it is in the Magistrates' Court - to be of good behaviour and stick with the people of Tristar.  All right?

48I hear what you say about - concerns about the co-op and those things and I am not going to put you on a Corrections order where you are away from home and you know, not on the mission stuff, so we will try and do all that. 

49What you have to understand is that with a suspended sentence, if you commit any offence that is punishable by imprisonment all right?  Or if you get - another way, get caught committing any offence that is punishable by imprisonment and you get brought back before a court, they breach you and bring you back before me.  All right? 

50Now, that can include a lot of things like driving whilst disqualified all right?  Some of the driving offences can do it.  Using can do it.  All right? 

51Now, if you are brought back before me for one of those, you have got to show exceptional circumstances like really unusual circumstances for me not to make you do the three months.  Okie doke?

52So just remember that.  You have got to get through six months without offending and I am sure you can do that.  And you have got a lot of people who can assist you if you need it, if you want it.  All right?  I know Uncle Pete in particular thinks you should mind your own business and stay away from the cousins and the bros and that is probably a real good idea.  But if you do have difficulties, whatever you do, get help before it all goes wrong. 

53All right?  I do not want to have to sit here and have Nick telling me that, "Look, this happened and that happened and that happened," when you should have done something but he did not - we do not need that again.  All right?  You know you have got those things there to go to.  All right?

54OFFENDER:  Yes. 

55HIS HONOUR:  All right.  I will just get the - you can just sit down, John.  That is all right.  All right. 

56All right?  Nothing else?  No other orders I have to make?

57MR GOODFELLOW:  No, Your Honour. 

58HIS HONOUR:  No, all right.  Okie doke, thanks for that.  Yes, thanks, Mr Goodfellow.  Thanks, Johnaton, you can come out of there now. 

59MR GOODFELLOW:  Thank you, Your Honour. 

60HIS HONOUR:  You are excused.  Thanks for that.  Thanks for that, thanks for your help.

61MR GOODFELLOW:  Thank you, Your Honour. 

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