Director of Public Prosecutions v Mitchell
[2022] VCC 1112
•13 July 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
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: | 23 June 2022 | |
DATE OF SENTENCE: | 13 July 2021 | |
CASE MAY BE CITED AS: | DPP v Mitchell | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1112 | |
REASONS FOR SENTENCE
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Subject:Criminal law
Catchwords: Contravention of Community Corrections Order (aggravated burglary; theft of motor vehicle; burglary)
Legislation Cited: Sentencing Act 1991
Cases Cited:Bugmy v The Queen [2013] HCA 37
Sentence:Community Corrections Order confirmed
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr P. Atkinson | Office of Public Prosecutions |
| For the Accused | Mr T. Battersby | Victoria Legal Aid |
HER HONOUR:
1William Mitchell, in March of 2021, you pleaded guilty on indictment to charges of aggravated burglary, theft of motor vehicle, burglary and possession of cannabis.
2
After I received relevant reports you were sentenced on 18 May 2021 to 281 days imprisonment, in combination with a Community Corrections Order of
two years duration which required that you be supervised by the Office of Corrections, receive assessment and treatment including testing for drug use and abuse, a mental health assessment and treatment and compliance with a Justice Plan. You were also subjected to judicial monitoring.
3You are now in contravention of a Community Corrections Order and admit that contravention which has occurred by way of non-compliance with conditions of the order and further offending whilst the corrections order was in place.
4The circumstances of your original offending was set out in a Prosecution Plea Opening dated 26 February 2021. It is a document of record and will not be repeated here. Apart from the cannabis offence your offending all took place between 16th and 18 July 2019 in the Mildura area and involved two separate events.
5I am told that your offending was primarily drug-related, that is either to obtain drugs or items or moneys from which drugs could then be purchased. At the time of the offending you were a regular user of both cannabis and methylamphetamine.
6I have reviewed my reasons for sentence dated 18 May 2021. Otherwise, a number of relevant matters were raised on your behalf at the time of your initial plea hearing. These included the circumstances of the offending, your criminal history, your personal circumstances, your plea of guilty and your significant intellectual disability recognised when you were 11 years of age.
7As a direct consequence of your offending you spent some 281 days on remand. You had not been involved in any further offending for some 12 months at the time of your sentencing.
8Two reports authored by Dr Linda Borg were tendered at your original plea. Importantly in Dr Borg's opinion your presentation was considered a likely contributor to your offending behaviour. Your level of cognitive function suggest that you 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 which would of course be compounded when you were substance affected.
9In Dr Borg's opinion the biggest barrier to your rehabilitation were your cognitive limitations, drug abuse as well as the presence of an emerging psychotic condition and maladaptive personality characteristics. At the time of sentencing two of these factors were being addressed, as you did have mental health support and you had stopped using methamphetamine.
10In her report dated 16 June 2018, Dr Borg confirmed your mild intellectual disability with associated learning difficulties and also that you were likely to suffer foetal alcohol spectrum disorder. This impairment meant that you experienced difficulties with reasoning judgement as well as being able to learn from experience.
11You do 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 Intelligence Quotient was identified at 56, essentially meaning some 98 per cent of the population would perform better. You in fact require support and assistance to function in the community.
12In her later report of 5 April 2021, Dr Borg remained of a 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.
13I was satisfied that the contents of Dr Borg's unchallenged reports reduced your moral culpability for your offending and lessened the weight that should attach to both general and specific deterrence, as it does to denunciation.
14Appropriate concessions were made by the Crown. The same factors Dr Borg identifies however do raise concerns about, firstly, your prospect for rehabilitation and, secondly, the need to protect the community from you.
15The application of the Bugmy principles were also, and remain, relevant. Those principles refer to the fact that because of the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending it is right to speak of giving full weight to an offender's deprived background in every sentencing decision.
16In fact, all of the matters to which I have referred still carry weight in sentencing you for contravening the order which I imposed on 18 May 2021.
17In terms of that contravention you admit the contravention. The order on which you were placed I am told expires on 23 May 2023.
18Section 83AS of the Sentencing Act, provides that a judge who is dealing with a contravention of a corrections order can deal with the offender for the original offences with respect to which the order was made, as if the court had just found him guilty of that offence. In other words, an offender can be resentenced entirely afresh. In effect you can be sentenced for the contravention of the corrections order and your original offending which saw you placed on that order.
19It is that course which the Office of Corrections seek I undertake and that is supported by the Office of Public Prosecutions.
20Section 83AS(2) of the Sentencing Act requires me to take into account the extent to which you have complied with the order made.
21
You were initially judicially monitored. A judicial monitoring report dated
7 July 2021 was very positive. By the time of the next judicial monitoring report dated 15 November 2021 your situation was described as having changed substantially and you had been taken into custody.
22
I have had recourse to the contravention package filed and the Contravention of Community Corrections Order by Conditions and Further Offences report dated
5 May 2022.
23You failed to undergo treatment and rehabilitation on two occasions and failed to be supervised, monitored and managed as directed on 10 occasions. The report tells me you initially attended as required but quickly deteriorated in terms of your compliance. Many of the intended supports barely had the opportunity to assist given a combination of events which saw you in and out of custody. After a lengthy period of abstinence it would appear that you did return to drug use.
24Concerns were raised as to your mental health. As of 22 April 2022, the Mildura Community Correctional Services directed that you were not to be seen if you did attend. Your presentation was described as unusual and erratic, this is in the background of you experiencing your first identified psychosis in late 2020 and you becoming linked in with the Mildura Base Hospital at that time and mental health treatment which saw you prescribed injectable anti-psychotics. It was apparent at the time of sentencing that treatment had been effective.
25In terms of your further offending, you have been sentenced by the Mildura Magistrates' Court on the following occasions.
(a) On 21 February 2022 you received a sentence of six months and 14 days imprisonment with a 113 days reckoned as having been served, in relation to charges of aggravated burglary, trespass, property damage, handling stolen goods, recklessly cause serious injury and three charges of assaulting a police officer;
(b) On 27 April 2022, you received a sentence of three days imprisonment for intentionally damaging property; and
(c) On 20 June 2022 you received a sentence of 30 days imprisonment.
26Obviously the Magistrates' Court has punished you for the further offending, but it is still a factor to be taken into account in assessing your compliance with the corrections order I made.
27Having been sentenced on a number of occasions since the corrections order has been in place also gives rise to the principle of totality. In your case this requires at least an assessment of the overall criminality and a consideration of what sentence would have been just and proper if all offences had fallen for sentencing on the same occasion.
28The contravention before me was initially listed on 24 May 2022 but adjourned. You were in custody.
29At the time of your next hearing date of 23 June 2022 you had only been out of custody for a period of some three days. I was told that you had returned home to live with your parents and had re-engaged with the Mallee District Aboriginal Service.
30The hearing was adjourned until 13 July 2022 to give you the opportunity to establish some supports in the community and to clarify the position of the Office of Corrections given their previous disinclination to have you attend upon their office.
31Your mental health and stable accommodation appeared to be the most immediate concerns. I accept the argument made on your behalf that your engagement with the corrections order was initially promising, as had your compliance in the community been until the point that you were placed on that order.
32You face significant barriers to success on a corrections order due to your cognitive functioning, poor mental health and what was ongoing drug use. I accept that given you have spent almost half the period of a corrections order in custody, that in some ways you have not received many of the intended therapeutic benefits.
33A letter authored by Rebecca Mannix, NDIS Support Coordinator, undated, advises that you can access a NDIS package which is active until 17 May 2023. She is apparently liaising with your family, your drug and alcohol counsellor and Mallee District Aboriginal Services with the intention of getting you assistance with mental health supports and community outing supports.
34In addition I have now received a letter authored by Aroha Shuttleworth, Clinical Practice Leader, Health and Clinical Services, SEWB Mildura, part of the Mallee District Aboriginal Services. This letter details that you have recently been supported to engage with mental health for ongoing counselling and support and have been seen by a mental health clinician.
35You were admitted to the Mildura Base Hospital on 25 June 2022 until 5 July 2022 for treatment of your mental illness and have had one subsequent recent overnight stay.
36You have now been placed on a community treatment order and you have been appointed a mental health case manager. You have commenced monthly anti-psychotic injections. This is a considerable development in obtaining and maintaining some stability, something you had managed to do in advance of being placed on the Community Corrections Order.
37Ms Shuttleworth's letter also reveals that their service will continue to provide you with support in terms of attending appointments and sharing care with the Mildura Base Public Hospital continuing care team in order to improve your mental health.
38The bottom line for you Mr Mitchell is you need to maintain all the supports in relation to your mental health. Stay away from drugs. And have a quieter lifestyle. I appreciate you will also have the advantage of being well-supported by your parents.
39In assessing all the material that is presently before me and the factors that were relevant at the time of your initial sentencing and now is that I do find the contravention proven. In my view and given the order remains in place until May of 2023 and you now have some supports in place which I have seen been effective on a previous occasion, my decision is to confirm the order originally made. I am however going to remove the judicial monitoring condition just because I am of the view that it may be overwhelming given the number of other orders in place and responsibilities upon you.
40So Mr Mitchell you are back on the order. You have heard what I've said. Quiet life, no drugs, get the help for your mental health because I do not want to see you back here, all right?
41OFFENDER: Yeah, all right, Your Honour.
42HER HONOUR: Mr Atkinson, anything I missed from your end.
43
MR ATKINSON: Just in relation to the contravention itself. I take it from
Your Honour's comments that there'll be no further order in relation to a penalty.
44HER HONOUR: Well what I'll do is convict and discharge given the circumstances overall. So thank you for bringing that to my attention because I had missed announcing that.
45MR ATKINSON: Thank you, Your Honour.
46HER HONOUR: Anything from your end Mr Battersby?
47MR BATTERSBY: No, Your Honour.
48HER HONOUR: I thank you very much for your assistance, particularly because it involved you travelling to Mildura on at least two occasions although from my experience it's quite a lovely city.
49MR BATTERSBY: It is Your Honour, thank you.
50HER HONOUR: All right, thank you very much. I'll stand down. I'll close the court until 9.30 tomorrow. Thank you.
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