Director of Public Prosecutions v Naggs

[2021] VCC 1278

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case Nos. CR-20-01836
CR-21-00585

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOSHUA NAGGS

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JUDGE:	HER HONOUR JUDGE DAWES
WHERE HELD:	Melbourne
DATE OF HEARING:	23 July, 9 and 26 August 2021
DATE OF SENTENCE:	3 September 2021
CASE MAY BE CITED AS:	DPP v Naggs
MEDIUM NEUTRAL CITATION:	[2021] VCC 1278

REASONS FOR SENTENCE
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Subject:Criminal law – sentence

Catchwords:              Burglary, theft, attempted theft, obtaining property by deception, resisting an emergency worker on duty, damaging an emergency service vehicle, trespass, driving while disqualified

Legislation Cited:      Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic)

Cases Cited:Worboyes v R [2021] VSCA 169

Sentence:                  TES: 1 year 7 months; NPP: 1 year 1 month

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr C. McConaghy	Solicitor for the Director of Public Prosecutions
For the Accused	Mr S. Tovey	Emma Turnbull Lawyers

HER HONOUR:

1Joshua Naggs, you have pleaded guilty to the following charges, that were committed between 15 and 23 August 2019: 

Indictment K12294480.1
Charges	Offence	Maximum penalty
2 charges	Burglary	10 years
10 charges	Theft (including 2x theft of motor vehicle)	10 years
11 charges	Attempted theft	5 years
2 charges	Obtaining property by deception	10 years
Indictment K12294480.2
Charges	Offence	Maximum penalty
1 charge	Resisting an emergency worker on duty	5 years
1 charge	Damaging an emergency service vehicle	5 years
Related summary charges
Charges	Offence	Maximum penalty
1 charge	Trespass	25 penalty units or 6 months
1 charge	Driving whilst disqualified	240 penalty units or 2 years

Indictment No K12294480.1

2At approximately 5:32pm on 15 August 2019, you and Ben WOCEICH-HIGGS were passengers in a vehicle, driven by Joshua GRIFFITH.  You attended a carpark in an apartment complex in Doncaster, gaining entry after a resident activated the secure roller door.  You and your co-offenders then left the car and forced entry into 17 different vehicles in the carpark, using various tools.  You stole or attempted to steal a number of items that are outlined in Charges 2 to 18.  You remained in the carpark for approximately 30 minutes.

3On 18-19 August 2019, unknown offenders gained access to a vehicle in Ferntree Gully, stealing property including a Mastercard.  On 19 August at around 2:00am, you used the stolen Mastercard to purchase items from a BP Service Station and a Coles Express Service Station in Croydon.

4At approximately 7:50am on the same day, you attended a residential premises in Yallambie.  You approached the front door, rang the doorbell and knocked a number of times.  You walked away and then returned to the premises.  You forced the front security door open by using a screwdriver, which you then used to try and open the wooden front door.  You kicked the front door open and entered the premises.  A resident of the property was inside at the time.  She heard glass smash and the door being opened, but did not see you enter her home.  You left a few minutes later and did not steal any property.

5Approximately one hour later, you and unknown co‑offenders attended a residential premises in Templestowe.  You approached the front door and knocked a number of times.  You and a co‑offender then walked around the premises before returning to your car and removing a sledgehammer.  You both returned to the premises and were walking around, looking in through the windows.  A resident of the property was inside.  She observed you and your co‑offender in her backyard.  Upon seeing the victim, you both left the premises.

6On Thursday, 22 August 2019, you and an unknown co‑offender stole a Honda CRV wagon that was parked outside the victim’s address in Bulleen.  You also stole a black jacket from the boot of another vehicle located nearby.  The stolen vehicle was located by police approximately two weeks later.

7On Friday, 23 August 2019, you attended a service station in Ringwood where you stole a tub of ice-cream and a meat pie.  You then walked towards a fenced-off area, at the rear of the premises.  You climbed over the fence and gained access to a vehicle, a 2012 Subaru Impreza sedan.  You entered the vehicle and reversed it, smashing through the fence gates and drove away.

Indictment No K12294480.2

8At approximately 10:05am on 23 August 2019, members of the Special Operations Group (“SOG”) located the stolen Subaru, parked at a bus stop on Wellington Road, Mulgrave.  You were observed to be sitting in the driver’s seat of the vehicle with your head slumped down on the steering wheel, seemingly asleep.  SOG operatives parked unmarked police vehicles to the front, rear and to the driver’s side of the Subaru.

9One SOG member deployed CS gas into the Subaru via the rear driver’s side window, which caused you to immediately sit upright.  You started the vehicle’s engine and the Subaru moved forward, making impact with the rear passenger side door of the police vehicle parked in front of you, close to where a police officer was seated.  The SOG member that was in the vehicle parked behind you then moved forward, to prevent you from reversing away.  You continued to rev the Subaru’s engine for around 15 seconds.  A police member yelled at you that you needed to show your hands and turn off the vehicle.  You failed to do so.  Police then deployed another round of CS gas into the Subaru.  This appeared to have no effect on you, as you continued to rev the engine, attempting to drive away.

10An SOG operative then deployed a taser, the probes hitting you on the upper right side of your back.  This appeared to have no effect on you.  A second SOG operative also deployed a taser, the probes hitting you in the area of your right shoulder.  You were again told to turn off the Subaru.  You stopped revving the engine for a short time before starting again.  A police tactical dog was then let into the Subaru.  The dog bit you in the left axilla/shoulder region.  You were removed from the vehicle.  SOG operatives performed first aid on you as a result of the injuries you sustained, until an ambulance arrived.

11Photographs contained in the depositions show the relatively limited damage that you caused to the police vehicle, and the significant blood loss that you sustained as a result of your injuries.

12At the time, you did not have a valid driver’s licence.  Your licence had been cancelled and you were disqualified from driving, at the Broadmeadows Magistrates’ Court on 21 June 2019.

13You were transported to the Alfred Hospital where you underwent surgery.

14On 2 September 2019, you were released from the Alfred Hospital and remanded to the Melbourne Custody Centre.  You remained in custody until August 2021, until after your plea was heard.  Your sentence was then deferred and you were released on bail.  You were remanded back into custody after 10 days.

15Victim Impact Statements have not been provided to the court in relation to the first indictment, and there is no information about the residual effect of your conduct.  To discover that someone has smashed or damaged property, when stealing or attempting to steal items, or for stolen property to be used in further dishonest conduct, must be at least, extremely concerning and frustrating.  For the owner of a home to hear someone smashing into their premises or to see them invading their personal space must be frightening and confronting.

16You concede that the overall offending on the first indictment is serious, although it was not sophisticated.  You persistently committed these offences, sometimes in the company of other offenders, over a nine-day period.

17Joshua GRIFFITH has pleaded guilty in the County Court to the offending that occurred in the car park at Doncaster on 15 August 2019, as part of a large consolidated plea of guilty.  I have obtained and read the sentencing remarks of Judge Quin.  A total sentence of four months’ imprisonment in conjunction with a Corrections Order was imposed for the charges where you are a co-offender, being charges 1-18.  I have considered the principal of parity of sentence in relation to these offences.  You both have relevant criminal histories and come from dysfunctional backgrounds.  However, Mr Griffith was within the age range for a youthful offender, being 21 years old at the time of offending and 23 when sentenced.  You are five years older than him.  This fact, coupled with your personal circumstances, will result in a disparity of sentence.

18Ben WOCEICH-HIGGS' matters have not yet been dealt with.

19On the second indictment, you have pleaded guilty to offences of resisting an emergency worker and damaging an emergency service vehicle.  When you were first observed, you were slumped over the steering wheel in the car.  The police fired projectiles into the rear window which startled you, and you attempted to drive away.  You did not comply with the directions given by police and eventually a police dog was released into your car.

20Your vehicle was effectively boxed in by the police officers, reducing any realistic opportunity for you to escape.  The police vehicle in front of your car was a very short distance away, significantly limiting any momentum you could gain when you drove forward and made contact with that vehicle.  In those circumstances, your capacity to cause any significant damage to the police car was limited.  I accept that your contact with the police was unexpected, and that the circumstances quickly developed into a chaotic scene.

21You have a number of relevant prior convictions for failing to comply with police directions.  It appears that your criminal history was known to police when your arrest was orchestrated.

22No Victim Impact Statements have been provided by the SOG operatives.  You have not provided an explanation for your offending.  I accept that your conduct was impulsive and spontaneous.  You admit that you were affected by drugs of dependence at the time of this incident.  It is accepted that the damage to the police vehicle was minor.

23The only person that was physically injured as a result of this incident was you, as you sustained significant injuries when you were bitten by the dog.  The Alfred Health discharge summary, dated 30 August 2019, documents that you suffered severe blood loss requiring transfusion, a left axillary artery puncture, shredding of the axillary vein and avulsion (separation) of the median nerve.  You have undergone complex reconstructive surgery, requiring nerve and vein grafts and ongoing medical treatment.  You have been hospitalised twice while in custody, as a result of the injuries.

24You continue to experience neuropathic pain of varying intensity, which is sometimes severe.  You have significant scarring, diminished sensation down your left side and you are unable to extend fingers on your left hand.  You have suffered ongoing vascular and nerve damage.

25In a letter prepared on 10 November 2020, from the Department of Clinical Neurophysiology at St Vincent’s Hospital, it confirms that you have a poor prognosis in relation to your injuries.  It is likely that you have sustained permanent damage.

26I accept the submission that these injuries have resulted in significant extra-curial punishment.  I have taken them into account for the related offences as they are relevant when considering the assessment of just punishment and deterrence.  They are also relevant as they have resulted in an increasing burden of imprisonment for you on an ongoing basis.

27

Upon your arrest on 23 August 2019, you were charged with your offending.  On 2 September 2019, you were remanded into custody.  A filing hearing was conducted on 25 September 2019 and adjourned for a contested committal, in relation to Indictment K12294480.2, on 1 June 2020.  That hearing was vacated due to the COVID‑19 pandemic and eventually proceeded in December 2020.  After extensive negotiations between the parties, your matters resolved on

15 February 2021.

28You are entitled to a benefit for your guilty plea, notwithstanding its timing.  It has a significant utilitarian benefit.  You have saved the court and the community the time and expense of running a trial.  In those circumstances you have facilitated the efficient administration of justice and are entitled to a benefit for that.  This is particularly relevant given the delay in jury trials that has resulted from the COVID‑19 pandemic.  I consider the utilitarian benefit of your plea to be enhanced by the fact that it was entered during the pandemic.

29The Court of Appeal has recently acknowledged in Worboyes v R[1] that a plea of guilty entered during the pandemic should be accepted as augmenting the utilitarian value of the plea, saying:

“… it is worthy of greater weight in mitigation than a similar plea entered at a time when the community and the courts are not afflicted by the pandemic’s effects.  A plea of guilty during the pandemic ordinarily should attract a more pronounced amelioration of sentence than at another time.”

[1][2021] VSCA 169.

30Your plea of guilty also demonstrates an acceptance of responsibility for your offending.

31Your first contact with the criminal justice system was at the age of 16 when you appeared in the Children’s Court.  You have an extensive and relevant history for matters of dishonesty, reckless conduct and driving offences.  From the age of 18 you have regularly appeared before the Magistrates’ Court, pleading guilty to consolidated hearings.  Of particular relevance, you have eight prior convictions for burglary, 44 prior convictions for theft, 34 prior convictions for theft of motor vehicle, 26 prior convictions for drive while disqualified, one prior conviction for resisting an emergency worker on duty, three prior convictions for failing to stop on police direction and one prior conviction for failing to stop motor vehicle on request.

32Your most recent sentence, prior to this incident, was imposed at the Broadmeadows Magistrates’ Court on 21 June 2019.  After serving a gaol term of 240 days, you were released into the community on a Corrections Order.  The offences that are now before the court occurred within weeks of your release from custody.  Your offending is aggravated by being subject to the Corrections Order at the time.

33On 1 October 2020, you pleaded guilty at the Broadmeadows Magistrates’ Court to unrelated offending that occurred at around the same time as the current offences.  You were sentenced to an aggregate term of imprisonment of 364 days, as well as receiving a financial penalty.

34I turn now to your personal circumstances.  You were born on 25 January 1993 and are now 28 years of age.  You are the eldest of four children.  Your childhood was unhappy and unstable.  You did not have contact with your father as a child.  You are told that he had issues with substance use and imprisonment.  DHHS (Child Protection) became involved in your care at an early stage, due to your mother’s substance abuse issues and periods of incarceration.  You were removed from her care at the age of three years.  Your contact with your mother was infrequent and irregular from that time.  You maintained a relationship with your maternal grandmother and would periodically reside with her.  You developed a number of behavioural issues from an early age.  Long-term placement with your grandmother was not feasible, yet you maintained a close relationship with her.  She died when you were in custody in December 2019.

35From the age of four, you were raised predominantly in either residential or foster care.  You resided in up to 30 short-term foster and residential home placements prior to the age of 16.

36You attended a number of primary schools, being expelled twice.  You attended Broadmeadows High School until you were expelled.  You then attended a Community School, from which you were also expelled, and have not completed any formal schooling or any form of education since partway through Year 8.  You have no history of employment.

37You first started using alcohol and cannabis at the age of 13.  You began smoking methylamphetamine at the age of 14 and soon developed a daily habit of drug use.  From the age of 16 you commenced using heroin and GHB.  You have also dabbled in the use of MDMA, cocaine and Benzodiazepine.

38You report that at the time of your current offending you were using GHB and methylamphetamine daily.  The medical material that has been tendered confirms that when hospitalised for your recent injuries, you displayed symptoms of withdrawal that required treatment.

39Your childhood was difficult and dysfunctional.  It reflects a background of considerable social depravation and disadvantage.  Your early exposure to drug use and instability created a vicious cycle which has played out throughout your life.  Transience and isolation throughout your childhood has had an ongoing effect on your lifestyle which has not diminished.

40You have previously been involved in three relationships.  You do not have any children.

41At the request of your solicitor, clinical neuropsychologist, Ms Amy Dulzniak, has prepared a report for court dated 2 July 2021.  She has made the following findings:

·        You underwent a cognitive assessment in 2018, which determined that you do not have an intellectual disability.

·        You report using illicit substances to self-medicate feelings of anger, sadness and loneliness.

·        In relation to the current charges, you had been released from custody 20 days before these events commenced.  You were homeless at the time.  You had no source of income, were using methylamphetamine and GHB daily and had very little sleep.  This cycle of offending behaviour was to support yourself.

·        On current neuropsychological evaluation, you performed in the low-average range.  Overall, you are a man of low-average intellectual function.  You have a longstanding diagnosis of Attention Deficit Hyperactivity Disorder (“ADHD”).  It is possible that your early initiation of substance use during adolescence may have compromised your cognitive, social and emotional development to some degree, in addition to deficits associated with your ADHD.

·        You present with significant risk factors, including reported exposures to substances in utero and a history of adverse childhood experiences.  These factors are strongly associated with increased risk for cognitive, language, attention and visual problems later in life.

·        Your history of early adversity, including disrupted attachments, lack of familial support and reported childhood physical abuse, has had a considerable negative impact on you.

·        The adverse effects of substance use on your behavioural control and decision making is an additional contributing factor to your offending behaviour.

·        You are at risk of recidivism and a substance-related brain injury, should you return to heavy substance use.  It is therefore critical that you aim for abstinence.

42I accept that the disruption in your family life, and your developing addiction to drug use when you were very young, is likely to have impacted on your personal development.  These factors appear to continue to play a part in your lifestyle choices.  The relevance of social deprivation does not diminish over time, notwithstanding your criminal history.  It is submitted on your behalf that these are mitigating factors.  The prosecution agrees that this is a relevant consideration in your case.  I consider that your moral culpability in this regard is substantially reduced.

43The principles of deterrence, denunciation and just punishment should also be moderated, although they are still relevant and should not be eliminated entirely.  This is counterbalanced, however, by the principle of community protection which remains a relevant sentencing consideration in your case.

44Your counsel has submitted that the current offences could have been dealt with in the Magistrates’ Court.  The charges were initiated in the indictable stream, in light of the nature of some charges that were eventually withdrawn.  I take that into account.

45You have spent approximately eight of the last 10 years in custody, serving terms of imprisonment.  At the age of 28, you are at risk of becoming institutionalised, if you are not already.  In the past you have been sentenced to a number of Community Correction Orders.  Each time you have been released into the community to commence the orders, you have generally been without any stable accommodation, ongoing family support or other long term supports in place.  You have breached each of these orders.  You had one opportunity to access parole in 2013.  This was cancelled after approximately one month.

46At the time of your current plea hearing, you had been incarcerated for almost two years.  The imposition of your sentence was deferred on 9 August 2021.  In an attempt to assist your transition from custody back into the community, you were released on bail with a condition that you comply with CISP, an intensive and comprehensive bail support program.

47You were assessed as being suitable for case management and for treatment to address your substance use, your mental and physical health and your ongoing homelessness.  Regrettably, your level of compliance with the program was poor, particularly in relation to accessing accommodation.  This resulted in you being homeless and created a significant barrier to your participation overall.  Your case manager writes that you experienced considerable difficulty in adhering to the program.  This was exacerbated by the stringent COVID-19 restrictions that were in place in the community upon your release.

48You were arrested by police on 19 August 2021, and charged with further offending which is listed for mention at the Melbourne Magistrates’ Court, on 15 September 2021.  Although it is alleged that these offences were committed while you were on bail for this matter, they are unrelated to the plea hearing.  I do not take them into account when determining the appropriate sentence here.

49Your prospects of rehabilitation present a complex picture.

50Ms Dulzniak is of the opinion that your successful reintegration into the community requires the involvement of a significant and intensive level of support.  I accept that professional intervention is a critical element in your rehabilitation, and is the best way to ensure protection of the community.  Clearly, your capacity to comply with substance rehabilitation and remain drug-free is a critical factor in your success.

51While you have been given the opportunity to access treatment through Corrections Orders in the past, you have not complied with them.  More recently, you had access to an intensive bail support program.  You failed to take advantage of this additional support.  The COVID-19 related restrictions, which resulted in an incapacity to access in-person engagement with treatment providers, may have contributed to this.  It is in your own interest to address your rehabilitation when you are released, as well as in the community’s interest.  I consider that your future prospects are likely to be bleak. This will remain so, until you accept that it is in your own long term interests to change your criminal lifestyle.

52I take into account that measures taken by Corrections to deal with the COVID‑19 pandemic have added to your hardship as a prisoner.  You have been in custody for the duration of the pandemic.  You have been subject to periods of lockdown throughout this time.  As I understand it, when this occurs you may receive sentence reductions as a result of the administrative decision of prison authorities.  As a result of your recent arrest, you have been required to spend 14 days in isolation, in quarantine.

53The emotional impact of being unable to have any personal visits for most of the time you have been in custody, and again for the foreseeable future, results in increasing the burden of imprisonment.  Your access to educational and vocational courses has been limited, particularly as you have been on remand for most of this time.  Overall, the hardships that have occurred as a result of the pandemic justify a sentencing benefit.  The prosecution concedes as much.

54It was initially submitted by the prosecution that a combination disposition, that included a Community Correction Order, was appropriate as it would adequately address all relevant sentencing considerations as well as being in the community’s interest. In light of your demonstrated non-compliance with your recent bail conditions, they do not maintain this submission.

55Your counsel acknowledges that the charges here are serious, in light of the number of offences, in the context of your criminal history and being subject to a Community Corrections Order at the time.  It was submitted that a sentence of imprisonment, being the time you have served on remand, is appropriate.

56I take into account the maximum penalty for these offences and current sentencing practices.  There is a presumption of cumulation for the offence of damaging an emergency services vehicle.[2]  The Sentencing Act [3] confirms that any sentence of imprisonment for this offence must be cumulative unless otherwise directed.

[2]s 317AG Crimes Act 1958 (Vic).

[3]s 16(3D) Sentencing Act1991 (Vic).

57The principle of totality is relevant when considering both your sentence imposed in October 2020 and your offending overall.  I have taken care not to doubly punish you for these offences, particularly in relation to Indictment K12294480.2.  I have endeavoured to tailor your sentence to ensure that it is proportionate to your overall criminal conduct.

58In light of your demonstrated non-compliance with Corrections Orders, I agree that a term of imprisonment is the only option available.  Whether you are likely to be released on parole is not a relevant consideration when imposing sentence.  In my view, the protection of the community is an important sentencing factor and this calls for release under some supervision.  Therefore, I intend to impose a period on parole.

59Balancing all these factors as best I can, I sentence you as follows:

60For Charges 1-18 (charges of burglary, theft and attempted theft): as these offences form part of one course of conduct, I intend to impose an aggregate sentence of 12 months;

61Charges 19 and 20 (obtaining property by deception): these offences also form part of one course of conduct.  I will impose an aggregate sentence of three months;

62Charge 21 (burglary): 12 months' imprisonment;

63Charge 22 (theft): two months' imprisonment;

64Charge 23 (theft of motor car): nine months' imprisonment;

65Charge 24 (theft): one month’s imprisonment;

66Charge 25 (theft of motor car): nine months' imprisonment;

67For the charge of resisting an emergency worker on duty, I intend to impose a sentence of six months' imprisonment;

68And for the charge of damaging an emergency service vehicle, a sentence of six months' imprisonment. This will be the base sentence.

69For the summary offences I will impose a sentence of two months' imprisonment for the offence of trespass, and six months' imprisonment for the offence of driving while disqualified.

70You licence is cancelled; you are disqualified from driving for a period of 6 months in relation to each charge of theft of a motor vehicle and driving while disqualified.  Those periods are to commence today and to run concurrently.

71The base sentence is six months for damaging an emergency service vehicle.  I direct that four months from the aggregate imposed on Charges 1-18, five months from the Charge 21, two months for Charge 23, and two months from Charge 25, be cumulative upon the base sentence and upon each other.  The balance of the sentences are to be concurrent.

72That is a total effective sentence of one year and seven months' imprisonment.

73I fix a non-parole period of one year and one month.

74I enter in the records of the court that you have served 369 days by way of pre-sentence detention.

75Pursuant to s 6AAA,[4] had the matter not proceeded as a plea of guilty, the sentence I would have imposed would be two years and six months, with a non-parole period of one year and 10 months' imprisonment.

[4] Sentencing Act 1991 (Vic).

76Mr McConaghy and Mr Tovey, would you like me to go through the sentence again?

77MR McCONAGHY:  No, Your Honour, I've taken down the sentence.  Just one matter, the PSD number we have is 369 days, Your Honour.

78HER HONOUR:  What did I say?  Three-six-nine.

79MR McCONAGHY:  I thought you said 365 but it just might have been - - -

80HER HONOUR:  No, 369 days.

81MR McCONAGHY:  Yes, thank you, Your Honour.

82HER HONOUR:  Mr Tovey, I will give you a chance to speak with your client when I excuse Mr McConaghy and I will leave the Bench.  My associate also has the sentence here if either of you would like to confirm the numbers.  There were no orders sought for forfeiture or disposal, were there?

83MR McCONAGHY:  No, that's correct, Your Honour.

84HER HONOUR:  All right, thank you.  I will leave the Bench.  Mr McConaghy, if you would like to be excused I will also excuse you and give Mr Tovey a chance to speak with his client.

85MR McCONAGHY:  Yes, Your Honour.  I will just stay on for a moment to speak to Mr Tovey, thank you, Your Honour.

86HER HONOUR:  All right, I will leave the Bench, thank you.

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