Director of Public Prosecutions v Nelson
[2014] VCC 1178
•22 July 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-13-01428
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RUSSELL BRIAN NELSON |
---
JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Melbourne | |
DATE OF PLEA: | 18 July 2014 | |
DATE OF SENTENCE: | 22 July 2014 | |
CASE MAY BE CITED AS: | DPP v Nelson | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1178 | |
REASONS FOR SENTENCE
---
Subject: CRMINAL LAW
Catchwords: Sentence – 4 charges of theft – lengthy criminal history for offences of dishonesty, violence and possession of drugs
Legislation Cited: Sentencing Act
Sentence: Total effective sentence 14 months’ imprisonment. Ordered to serve 340 days’ imprisonment and the balance of the sentence suspended for 18 months. Pre-sentence detention of 337 days reckoned as time already served under the sentence imposed.
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr K McKay | Solicitor for Office Public Prosecutions |
| For the Accused | Mr R Thyssen | Kurnai Legal |
HER HONOUR:
1 Russell Brian Nelson, you have pleaded guilty to four charges of theft, each of which carries a maximum penalty of 10 years' imprisonment.
2 Your offending occurred on 28 April 2013 at a house at which you were apparently living at 125 Albert Street, Preston. The complainant, who was unknown to you, attended that house and you left that house with, amongst other things, the complainant’s Commonwealth Bank access card. This and other items were the subject of one charge of armed robbery upon which you stood trial before myself and a jury. The complainant had alleged that you had stolen his key card, amongst other things, whilst holding a knife to him. It was put to the complainant on your behalf that that did not occur but, rather, the complainant had given you his key card so that you could withdraw money to purchase drugs for him. He also alleged that you forced him to write down his PIN number on a piece of paper. You were acquitted on the charge of armed robbery.
3 In the course of the plea hearing your counsel, Mr Thyssen, stated that you had been given the card and had the “inspiration” to use it only for your own purposes after you left the house. There was no evidence of this on the trial or at the plea hearing and, as an alleged mitigating factor, I am not satisfied of it on the balance of probabilities. Clearly, the jury were not satisfied beyond reasonable doubt of the facts alleged as a basis for the armed robbery. However, I sentence you on the basis that I cannot be satisfied as to the circumstances whereby you came by the complainant’s access card.
4 A short time after leaving your house, you were captured on CCTV footage between 7.09am and 7.13am on the day of the offending using an automatic teller machine (“ATM”) at a Caltex service station at the end of your street. You are seen consulting a piece of paper whilst you used the keypad at the ATM on a number of occasions. A withdrawal of $50 from the complainant’s account constitutes your offending on Charge 1. This was followed soon after with a withdrawal of $500 at the same ATM which constitutes your offending on Charge 3. The evidence on the CCTV footage is that you then left the service station at 7.13am. At 7.21am, you were captured on CCTV footage at the outdoor eating area of a nearby KFC outlet counting the $50 notes which you had just withdrawn. You then hailed a taxi at the intersection of Albert and Bell Streets and paid the taxi driver $50 in advance. You were driven to the Heidelberg Mall. There you used the complainant’s card to withdraw another $200 at an ATM. This comprises Charge 4. You directed the taxi driver to drive you to a couple of other places and, ultimately, left the taxi and attended at the Housing Commission flats at 95 Napier Street, Fitzroy, where you were again captured on CCTV footage at about 8.20am. Some time later, at 9.36am, you attended an ATM at St Vincent’s Hospital in Fitzroy and withdrew another $50 from the complainant’s account using his access card. This comprises Charge 5.
5 Additional evidence against you was CCTV footage from inside the taxi cab and a fingerprint of yours from the outside of the front passenger door. In addition, both the complainant and the taxi driver made positive identifications of you when police showed them photo boards on 30 April 2013.
6 On 29 April 2013, police located you hiding in a cupboard at a unit at the Housing Commission flats at 95 Napier Street, Fitzroy. You were wearing the same clothing as you had been wearing when you committed the offences. You were arrested and made a “no comment” record of interview. You pleaded guilty to these offences at the very last opportunity, namely on the morning that they and the other charge of armed robbery was listed for trial.
7 You are presently aged thirty years, having been born on 4 June 1984. You come before the Court with an extensive criminal history, which you have admitted. Between 4 October 2001 and 22 March 2012, you have been convicted of a host of dishonesty offences which include armed robbery, two robberies, many thefts and burglaries and other summary offences of dishonesty, a variety of offences of violence, possession of heroin and cannabis, failing to answer bail and escape from a Youth Training Centre. On two previous occasions, you have been given Community Based Orders, which you breached, and a suspended sentence, which you breached. You have served various terms of imprisonment, the two longest of which were of 18 months duration, with non-parole periods of 8 months and 12 months respectively.
8 In a plea on your behalf, Mr Thyssen stated that you had a disadvantaged background. You are Aboriginal and your parents separated shortly after you were born. Apparently your mother had some unspecified psychological problems and difficulties with relationships, and this resulted in you moving between both parents. You spent some time living in Morwell with your mother and some time living in Narrandera in New South Wales with your father. You attended school to only the end of Year 7 or early Year 8 and, apparently, have very limited literacy.
9 Tendered on the plea was a report from Ms Izabela Walters, forensic neuropsychologist, dated 20 March 2012. This was prepared for an earlier Court hearing in the Magistrates’ Court. It noted a very lengthy history of alcohol and drug abuse and, at that time, you were heavily addicted to heroin and homeless. Ms Walters assessed you as having general cognitive ability in the borderline impaired range of functioning. In particular, it was noted that your abstract non-verbal reasoning was in the low average range and that you had great difficulty retaining and repeating verbal information, such that your working memory was in the impaired range and your ability to recall words, after a delay of 30 minutes, was in the low average range. She assessed your visuo-spatial ability as being in the average range, such that you would perform well in tasks such as carpentry, building or other trades-related occupations. Her opinion was that, apart from long term substance abuse, your risk factors for an acquired brain injury were mild. She considered that your working memory function was probably longstanding and had been present during your schooling. She considered that your ability to change your behaviour in response to feedback was in the low average range for your age, and education, and rehabilitation efforts would most likely succeed if they focussed upon modelling and behaviour modification, rather than verbal intervention such as counselling.
10 Mr Nelson, I accept that you have had a disadvantaged background, limited education and are in the borderline range of intelligence. However, it is plain that your persistent use of illicit drugs has made you a significant menace to society. Your criminal lifestyle shows you to have an entrenched trait of dishonesty and you have failed to take opportunities afforded by way of rehabilitative dispositions, such as Community-Based Orders.
11 I am told that you have a partner, Jacinta Austin, and a son, Russell aged nine years, with whom you are anxious to be reunited so that you can reside with them in Morwell. I can only wonder about how good a father you have been to your son, given your very poor role modelling to him by your appalling criminal lifestyle. Also, you have been a fairly absent father because of the periods that you have spent in custody.
12 Although I take account of your disrupted upbringing and borderline cognitive capacity, I consider that your addiction to drugs is the primary factor behind this offending for which I have to sentence you. By the time of reaching 30 years of age there should have been some greater attempt on your part to try to do something about your drug addiction and criminal lifestyle. I take into account your pleas of guilty, however, I do not regard them as remorseful. There was overwhelming evidence of your guilt of these thefts, yet you did not plead guilty until the morning of the trial. My assessment is that your prospects of rehabilitation are very poor. Not only have you done nothing, yourself, to try to rehabilitate yourself from using illicit drugs, but you have failed to comply with court orders endeavouring to assist you in this regard. Ms Walters comments upon your limited ability to change your behaviour in response to feedback reinforces my impression that your prospects of rehabilitation are poor. Apart from having helped your father make didgeridoos for a short period, you have never been employed or made any useful contribution to society. You have lead a feckless, self-indulgent existence consisting of funding your drug habit at the expense of others.. Although this offending may be described as opportunistic, in that you were not to have known that the complainant would come knocking on your door, in your case it demonstrates how dishonest, cunning behaviour has become second nature for you. I find no mitigating circumstances in relation to the offending behaviour itself.
13 You have been a drain on resources for crime investigation and upon the criminal justice system for many years. Offending like this, occasions distress and inconvenience to those whose cards are dishonestly utilised and losses to banks, which are, ultimately, passed on to consumers in higher fees. In my view, protection of society from your well-entrenched dishonest behaviour must receive emphasis in sentencing you for these offences. Although, I take into account the mitigating factor of your borderline intelligence mentioned in Ms Walters’ report, there still needs to be some emphasis upon general deterrence, specific deterrence, denunciation of your behaviour and just punishment.
14 I take into account the principle of totality, in that, in between periods of pre-sentence detention for these offences, namely 39 days (from 29 April to 7 June 2013) and 296 days (from 27 September 2013 to 21 July 2014), you have served another term of imprisonment imposed by the County Court in the Latrobe Valley on 27 September 2013. I am told by your counsel that you have remained drug-free during this period in custody and, where possible, have worked in prison jobs such as the laundry.
15 On Charge 2, theft, you are convicted and sentenced to four months’ imprisonment.
16 On Charge 3, theft, you are convicted and sentenced to ten months’ imprisonment.
17 On Charge 4, theft, you are convicted and sentenced to six months’ imprisonment.
18 On Charge 5, theft, you are convicted and sentenced to four months’ imprisonment.
19 The sentence of ten months imposed on Charge 3 is the base sentence. I direct that one month of the sentence imposed on Charge 2, two months of the sentence imposed on Charge 4, and one month of the sentence imposed on Charge 5, be served cumulatively upon the sentence imposed on Charge 3 and upon each other. Save for such accumulation, the sentences are to be served concurrently.
20 The total effective sentence is thus 14 months’ imprisonment. Your flouting of the law in the past leads me to conclude that you need a reminder that, if you offend again, then you will be brought back before the Court to be dealt with. Accordingly, I order that you serve 340 days’ imprisonment and that the balance of sentence be suspended for a period of 18 months.
21 I declare a period of 337 days pre-sentence detention to be reckoned as time already served under the sentences imposed this day.
22 You will be aware that if, during the period of 18 months, you commit another offence punishable by imprisonment whether inside or outside Victoria, then, you will have breached this order and will be brought back before me for re-sentencing. Should that occur, the high probability is that you would be ordered to serve the balance of the sentence unless you can demonstrate exceptional circumstances.
23 Pursuant to s6AAA of the Sentencing Act, I state that, had it not been for your pleas of guilty, the sentence imposed would have been two years’ imprisonment with a non-parole period of 18 months.
24 Pursuant to s78(1) of the Confiscation Act 1997, I order forfeiture to the State of a black handled kitchen knife, a serrated electric knife blade, and Myki card. I further direct that this property be placed in the custody of the Chief Commissioner of Police and be held by him until 28 days from this date or the conclusion of any appeal proceedings where it may be tested and or analysed and then destroyed.
0
0
0