Director of Public Prosecutions v Nelson

[2017] VCC 2050

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-01512

DIRECTOR OF PUBLIC PROSECUTIONS

v

JACK NELSON

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JUDGE:	HIS HONOUR JUDGE HIGHAM
WHERE HELD:	Melbourne
DATE OF HEARING:	6 November 2017
DATE OF SENTENCE:	17 November 2017
CASE MAY BE CITED AS:	DPP v Nelson
MEDIUM NEUTRAL CITATION:	[2017] VCC 2050

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Sentence – plea of guilty – two charges of theft – one charge of aggravated burglary with an offensive weapon – three co-accused – youthful offender – no prior convictions – positive prospects of rehabilitation – strong family support

Legislation Cited:     Crimes Act 1958; Sentencing Act 1991
Cases Cited:

Sentence:Total effective sentence of 7 months’ imprisonment with a Community Correction Order of 24 months’ duration with treatment and rehabilitation, supervision, judicial monitoring and unpaid community work hours attached

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Perry	Office of Public Prosecutions
For the Accused	Ms S. Parsons (Plea) Mr S. Fuller (Sentence)	Doogue + George Criminal Lawyers

HIS HONOUR: 

1Jack Nelson, you have pleaded guilty to two charges of theft of a motor vehicle, Charges 2 and 5, and one charge of aggravated burglary, Charge 3 on Indictment 10981861.

2You have also pleaded guilty to five summary charges; unlicensed driving, fraudulently using registration plates, committing an indictable offence whilst on bail, driving in a manner dangerous, and using a drug of dependence.

3The maximum penalty for your offending is as follows:

Theft of a motor vehicle, ten years' imprisonment;

Aggravated burglary, 25 years' imprisonment;

Unlicensed driving, 25 penalty units or three months' imprisonment;

Fraudulently use registration plates, 60 penalty units or six months' imprisonment;

Committing an indictable offence whilst on bail, 30 penalty units or three months' imprisonment;

Driving in a manner dangerous, 240 penalty units or two years' imprisonment, or both;

Using a drug of dependence, 30 penalty units or one year's imprisonment.

4The circumstances of your offending are as follows.

5On the morning of 7 April 2017, you were driving in a black Mercedes Benz.  In the vehicle with you were Anthony Coombe, Bradon Sabell and Elsa Murdolo.  Whilst it is not alleged that you were involved in the actual theft of the vehicle, you knew that the vehicle was stolen when you were travelling in it.  These facts underpin Charge 2, theft of a motor vehicle.  Further, you were aware that the Mercedes bore stolen registration plate 1BJ 7JX, underpinning Summary Charge 9.  At the time, you were not licensed to drive, underpinning Summary Charge 8.

6At approximately 9 am, you were driving down Gillwell Road in Lalor.  Mr Coombe noticed an open garage door with a white Mercedes parked inside.  This Mercedes belonged to Mr Tek Lay.  All four of you got out of the black Mercedes.  Mr Coombe entered the garage of the property and confronted the occupant, Mr Lay, who at that time was 75 years of age.  Mr Coombe had with him a knife, and was pointing the knife in the direction of Mr Lay.  Inside the garage, Mr Coombe spoke to Mr Lay, demanding his car keys whilst holding the knife pointing towards him.  He made it clear that he wanted the keys to the white Mercedes.  This occurred in your full view, whilst you, Ms Murdolo and Mr Sabell remained standing in the driveway to the property.  

7Mr Lay told Mr Coombe that the Mercedes was his wife's car and he did not know where the keys were.  As he was saying this, Mr Coombe walked past him through an internal door and into the living room of the property.  Mr Lay followed him inside and gave Mr Coombe keys to his Nissan vehicle, which was parked in front of the house.  As a result of the commotion Mr Lay's 18-year-old grandson, Nathan, came downstairs and saw Mr Coombe standing in the doorway holding a knife.  Mr Coombe went back into the garage towards the white Mercedes, and at this point Mr Lay managed to close and lock the internal door leading from the garage into the residential part of the property. 

8But this was not the end of Mr Lay's ordeal, for when Mr Coombe realised that the car keys he had been given were not for the white Mercedes, he turned back towards the internal door and forced entry into the living area of the house.  On entry he was confronted by Nathan.  Mr Coombe then pointed the knife at Nathan and demanded his car keys.  Mr Coombe then seized a set of keys which were on the dining room table, and, returning to the garage, got into the driver's seat of the white Mercedes and reversed out of the driveway at speed.  You drove the black Mercedes at a similar speed, following Mr Coombe in the stolen vehicle.  These are the facts of Charge 3, aggravated burglary with an offensive weapon, and Charge 5, theft of a motor vehicle.

9The police were notified about the aggravated burglary and were on the lookout for two vehicles.  At 9.25 am, Detective Senior Constable Hall was on the Metropolitan Ring Road in Bundoora when he saw the black Mercedes being driven by you.  When you were stationary in traffic at a set of traffic lights, police approached your vehicle.  You then reversed the black Mercedes to the right, collided with trailers, before attempting to drive off.  Police tried to open the doors of the vehicle, but it was locked.  In order to arrest you, Detective Hall had to use his baton to smash the window and used OC spray upon you, but you continued to manoeuvre the vehicle back and forth.  Eventually, police officers managed to lean in and grab the keys out of the ignition to immobilise the vehicle, and they were finally able to arrest you.  This was the drive in a manner dangerous, subject matter of Summary Charge 12.  You had also used the drug GHB on this day, underpinning Summary Charge 15.

10Following your arrest, you participated in a record of interview.  In the course of that interview you stated that you had stayed in the car whilst Mr Coombe got out, that you knew what Mr Coombe was going to do, that it looked like there were people home, and that you knew what they (I take it to be a reference to Mr Coombe and others) had done.

11On 12 April 2017, there was a filing hearing at the Melbourne Magistrates' Court.  On 15 June 2017 a bail application was listed for you, but in the event that application was not proceeded with.  On 6 July 2017 at the first committal mention, the matter resolved and it was observed for a summary jurisdiction application whilst you remained in custody.  On 31 July 2017 summary jurisdiction was refused, and the matter was then booked in for a plea hearing at this court, which took place on 6 November 2017.  Your plea of guilty was therefore entered at the earliest opportunity.  I regard that plea as having not only the utilitarian benefit of saving time and cost and serving the public interest, but in addition as evidence of your remorse for your offending, which I take to be genuine and heartfelt.

12I turn now to your personal circumstances. 

13Your date of birth is 25 May 1993, so you are now 24 years of age, and you were 23 at the time of the offending.  You were the second child born to your parents, and you have an older sister, Hollie.  You grew up in the family home in Rosanna. 

14When you were five years of age your mother left your family.  I am told she has mental health issues and is regularly hospitalised.  Since her departure from the family home, you have had limited contact with her.  Thus your father Greg cared for you and your sister as a single parent whilst working fulltime.  Later, your father began a relationship with Ms Bernadine Kennett, who had two children, Tegan and Joel, from a previous relationship.  When you were in your secondary school, you and your father moved in to live permanently with Ms Kennett and her children at her home in Reservoir, and thus your adolescence and your early adulthood was spent in the close and loving environment of this blended family. 

15You finished your year 12 schooling at Macleod Secondary College, doing well at practical subjects such as metalwork and woodwork, and you worked part time at your local IGA.  You also played football and joined a boxing club.  You then successfully applied for a plumbing apprenticeship with Master Plumbers.  At this stage of your young life, although marked by the early loss of your mother, had been unremarkable.

16However, in the first year of your apprenticeship, tragically your sister Tegan suicided.  Your response to that grief was to withdraw from your family.  Coincidentally, your father and Ms Kennett's relationship began to experience difficulties. 

17You did however complete three years of your apprenticeship.  On the outside, apparently, you were working hard and saving hard.  You were able to buy yourself a new car, and you were saving for a deposit for a home of your own.  However, you did not complete your apprenticeship.

18Sometime after Tegan's suicide you began to use recreational drugs.  In your case, Mr Nelson, your use quickly escalated to regular use of methamphetamine and to dependence.  Not surprisingly, your life began to unravel.  You spent more and more of your time out in the city, and increasingly associating with a negative peer group, with whom your only shared interest was your love of drugs.  In short order you began to withdraw from your family.  You abandoned your previous friends, and you spent more time with your so-called new friends.  You ended your apprenticeship after a falling out with the boss, due to your ‘drug hangover’ absences from work.  You went through your hard-earned savings.

19I am told there came a time when your father and Ms Kennett separated, and you moved with your father back to Rosanna.  It was at this point that your father became aware of the extent of your substance abuse issues, and he tried to support you at home.  He of course was not able to solve your problems.

20Mr Nelson, aggravated burglary is a serious offence, as can be seen by the maximum penalty of 25 years.  You were party to offending which will have a lasting impact upon your victim.  Mr Lay has written a victim impact statement, which was tendered on the plea, and in that statement, Mr Lay spoke of his sense of loss.  He describes feeling less safe at home.  He describes being fearful whenever he opens the garage door.  That garage door was his window on his world, and now he closes the door because he is so fearful.  He feels he has lost that connection with his neighbourhood, where he has lived for almost 35 years, without ever having to worry about the people around him.  Your offending has triggered anxiety, for which he receives counselling.  His sleep has been affected, and he becomes more agitated by little things.  He feels less independent and less sociable, and he does not know if he will ever be able to live the carefree life that he had prior to being the victim of your offending.  So Mr Nelson, you and your associates have taken part of his life away.

21I do of course accept that your role was far less than that of your co-accused Mr Coombe.  Nonetheless, you stood there whilst Mr Coombe terrorised his victim, brandishing a knife.  As you candidly admitted in your record of interview, you knew what Mr Coombe was about to do, yet you did not have the moral courage or the integrity to say, "No, I don't want a bar of this".  Instead you stood there silent and provided your support to Mr Coombe in his actions by your presence.  That is something that should shame you, and I am sure that it does shame you, Mr Nelson.

22On the plea your counsel, Ms Parsons, submitted that you should be distinguished from your co-accused.  In support of this submission Ms Parsons identified:

(i) Your role in the aggravated burglary;

(ii) The admissions that you made in your record of interview;

(iii) Your personal antecedents and history;

(iv) Your prospects for rehabilitation, in this regard, she emphasised that you had no criminal history apart from some driving matters;

(v) This was your first experience of custody, at 23;

(vi) The support of which you undoubtedly have the benefit. 

23On your plea there were handed up various references from family friends, family members, and your pastor.  Every one of them spoke of your character and of their hope that you could rebuild your life and become a hardworking, contributing member of the community once again.

24Of particular note was a letter from your father, Greg.  He spoke of the trauma that you experienced at the age of five when your mother left, and how you internalised those feelings and went into yourself.  He spoke of the child you were, and of the pride that he had in you as you have grown up into a self-motivated and decent young man.  He also spoke very tellingly in his letter to me of the tragedy of Tegan's suicide, and how after that event you withdrew again.  He said, "In hindsight, he was the same as when his mother left him".  He speaks of his agony, and indeed of any parent's agony, when he first became aware of your drug problem in 2015, and then of your downward spiral, which he was compelled to watch, and yet was helpless to do anything about.  He talked of his shock that you have ended up in custody, and has asked himself as any parent would, "How did this happen?  How did my loving, responsible son turn into a drug-affected person that I do now know".  In other words, "How has my son become a stranger to me?"

25It is not your father's fault, it is yours, because you have made choices, and those choices that you made have led you directly to where you are this morning, having to sit there in the dock listening to me.  However, your father tells me that he will do anything possible to support you, and everything within his power to help you fulfil your prospects and become again that responsible and decent young man, son, brother, and respected member of society.  No one can read your father's letter and not be moved.  You are fortunate to have that love and support, because many people who come before me do not.

26I should also note that you are single, without dependents, and it is your intention to live with your father once back in the community.  You also seek to re-establish yourself, that is to say to regain your sense of your self-worth and to gain employment, and to reconnect with those friends who are engaged in productive lifestyles whom you undoubtedly abandoned when you got caught up in the drugs and the world that goes with it.

27In short, Ms Parsons relied upon your relative youth, your excellent prospects for rehabilitation, your plea of guilty and your remorse as all being factors which should inform my sentencing discretion.  She submitted that all the relevant sentencing purposes in your particular case, could be met by a sentence of imprisonment combined with a Community Correction Order.  She further submitted that your pre-sentence detention, which is now 224 days, was a sufficient custodial term, that is to say, you did not need to do any more time in prison before you could be released onto a Community Correction Order.

28Mr Perry, learned counsel for the prosecution, accepted the defence submission.

29In sentencing you, I must have regard to a range of different factors.  I must give effect to principles of both general deterrence and specific deterrence.  I must deter others from behaving like you did, and I must deter you from repeating such behaviour.  I must express the community's denunciation of your conduct and I should promote, if possible, your rehabilitation.  I take into account the effect your crime has had upon your victim, Mr Lay, and I must have regard to current sentencing practices.  I have to try and balance your personal circumstances with the circumstances of your offending. 

30Principles of general deterrence, specific deterrence and denunciation are important sentencing considerations in cases involving aggravated burglary.  The Court of Appeal has made it very clear that significant periods of imprisonment should be imposed for the offence of aggravated burglary.

31However, having regard to all the matters that have been urged upon me by your counsel, having regard in particular to the concession made by the learned prosecutor, and using my own judgment and my assessment of you and the support that you enjoy, I am persuaded that just punishment can be met by passing a sentence which enables you to leave custody today, subject to supervision.

32If you stand up please, Mr Nelson.

33On Charge 2, theft of a motor vehicle, you are sentenced to a term of two months' imprisonment.

34On Charge 3, aggravated burglary, six months' imprisonment and a Community Correction Order of two years' duration.

35On Charge 5, theft of a motor vehicle, three months' imprisonment.

36On Summary Charge 8, unlicensed driving, you are convicted and disqualified from obtaining a licence or permit for six months.

37On Summary Charge 9, fraudulently use registration plates, convicted and discharged.

38On Summary Charge 10, commit an indictable offence on bail, convicted and discharged.

39On Summary Charge 12, drive in a manner dangerous, convicted and disqualified from obtaining a licence or permit for 12 months, to run concurrently with the disqualification ordered on Summary Charge 8.

40On Summary Charge 15, use drug of dependence, convicted and discharged.

41I direct that one month of the term of imprisonment on Charge 5 run cumulative to the sentence imposed upon Charge 3.

42This makes a total effective sentence of a term of imprisonment of seven months, with a Community Correction Order of two years' duration.

43Pursuant to s.18 of the Sentencing Act 1991, I declare that you have served 224 days of the sentence that I have imposed upon you, and direct that this be entered into the records of the court.  By my calculations, 224 days is greater than seven months, and it is my intention that you should be released from custody today.

44Pursuant to s.6AAA of the Sentencing Act 1991, I indicate that but for your plea of guilty, you would have been sentenced to a total aggregate term of imprisonment of 21 months. 

45In addition to the core conditions that attach to the Community Correction Order, I am directing that you must perform 100 hours of unpaid community work over a period of 24 months.  If you fail to comply with that order, you may be given a direction to perform additional hours.

46Secondly, I attach a condition of supervision, so you will have a Community Corrections officer who you will visit, and they will be supervising your progress.

47Thirdly, a condition of treatment and rehabilitation.  You must undergo assessment and treatment, including testing, for drug abuse or drug dependency as directed.  You must also undergo mental health assessment and treatment, that may include psychological or neuropsychological or psychiatric treatment, as directed.

48I am also going to impose a condition of judicial monitoring, which means you will return to court, and I will have a report from Corrections as to how you have been progressing.  You can talk to me and I can talk to you about how things are going, so we can keep it on track.  The first judicial monitoring will be at 9.30 am on Wednesday 20 December 2017.

49Do you consent to being placed on a Community correction Order for two years?

50OFFENDER:  Yes.

51HIS HONOUR:  My associate will bring you a copy to be signed, and then copies will be made. 

52I make the various forfeiture orders in relation to Mr Coombe and Mr Nelson.

53I will also make the forensic order sought by the prosecution.  I am satisfied that the seriousness of your offending merits the making of the order.  I must tell you that if you do not consent to it, the police officers are entitled to use such force as is reasonably necessary in order to take the sample from you.

54Alright, Mr Nelson, I will see you on the 20th.

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