Director of Public Prosecutions v Nicoll
[2023] VCC 1416
•17 August 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-01073
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRADLEY WILLIAM NICOLL |
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JUDGE: | HIS HONOUR JUDGE GEORGIOU | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 April 2023, 15 June 2023 | |
DATE OF SENTENCE: | 17 August 2023 | |
CASE MAY BE CITED AS: | DPP v Nicoll | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1416 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Jury verdict – carjacking – robbery – Uber driver - serious offending – guarded prospects of rehabilitation – mental ill health – drug use – drive while suspended
Legislation Cited: Crimes Act 1985 (Vic); Sentencing Act1991 (Vic)
Cases Cited:DPP v Zhuang [2015] VSCA 96;
Sentence: 3 years and 3 months imprisonment, 23 months non-parole
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | N Sheridan-Smith | Office of Public Prosecutions |
| For the Accused | A Cannon | Leanne Warren & Associates |
| S Suman (for sentence) |
HIS HONOUR:
1Bradley William Nicoll, in March this year you were tried before a jury on the following charges:
·Charge 1, that at Lyndhurst on 20 November 2021, you stole a vehicle belonging to Scott McEwan and at the time of doing so, and in order to do so, you sought to put Scott McEwan in fear that he would then and there be subject to force, and at the time you had with you a firearm.
·Charge 2, that at Lyndhurst on 20 November 2021 you robbed Scott McEwan of a Samsung Galaxy mobile phone, and at the time of doing so had with you a firearm.
2The jury found you not guilty of aggravated carjacking and armed robbery. You were found guilty, however, of the alternative charges of carjacking and robbery.
3At the plea hearing, you consented to my hearing a related summary charge of you driving whilst your authorisation was suspended, to which you pleaded guilty.
Circumstances of offending
4At approximately 3.20am on Saturday, 20 November 2021, you requested an Uber ride. The Uber request was made under an account bearing your details, and in the name “Bradley Junior”.
5The victim of your offending, Scott McEwan, was working that morning as an Uber driver, and accepted the request.
6He arrived at an address in Inglis Avenue, Seaford. You approached Mr McEwan’s car and showed him your mobile phone, on which the Uber request was displayed on the screen. You got into the car, sitting in the left rear passenger seat.
7Mr McEwan began driving towards the destination you had given him. During the trip you asked him questions about his name and what he did for work. A few minutes into the journey you asked whether you could drive the car, your request being denied. You asked this on several occasions and were refused each time.
8During the journey you asked Mr McEwan to pull over so you could go to the toilet. Mr McEwan turned right into Thompsons Road, Lyndhurst, and stopped some 100 metres from the intersection.
9When the car stopped, you said to Mr McEwan, “You really need to get out of the vehicle”. Mr McEwan gave evidence at trial that he turned around and saw you holding what he thought was a silver gun next to his shoulder, pointed at him. You then said “You really need to get out of the vehicle or I’ll shoot you in the head”. Mr McEwan understandably complied with your direction. As he was getting out of his car, he reached to grab his mobile phone from its holder on the dashboard. You said, “Don’t take the phone, leave the phone”. Mr McEwan got out of his car, leaving his phone, and walked away. He crossed Thompsons Road and you drove off. Mr McEwan was able to flag down a passing taxi and was taken to the Cranbourne Police Station where he reported the incident at approximately 4.15am.
10At the police station, Mr McEwan was able to log into the GPS tracking function on his phone. The tracking data showed that the car was driving away from Melbourne along the Hume Freeway towards New South Wales.
11At approximately 10.00am, the New South Wales Police Air Wing was tracking the movements of the car, and by 12.00pm police had intercepted the car and arrested you near Leppington, New South Wales. Upon your arrest, a black satchel that you had been carrying was found. Within it were the victim’s telephone, your telephone, and a silver folding knife.
12Investigation of the contents of your phone show that you had sent a number of text messages on 19 and 20 November 2021. Included in those messages were references to you needing “wheels” and “planning to go Sydney”. You had also conducted a Google search on your phone for “Sydney border” and “directions to Sydney Harbour Bridge”.
13The sole issue at trial was whether you had with you a firearm at the time you stole the victim’s car and robbed him of his mobile phone. The verdicts of the jury in finding you not guilty of aggravated carjacking and armed robbery, a particular of each charge being that you had with you a firearm, mean that they could not be satisfied beyond reasonable doubt that you had with you a firearm.
14At trial, your counsel, Ms Cannon, argued that the jury could not be satisfied beyond reasonable doubt that you were armed with a firearm. She invited them to find you guilty of the alternative offences of carjacking and robbery, which they did.
Victim Impact Statement
15Tendered at the plea hearing was an impact statement from Mr McEwan. It is clear that your offending has had a significant impact upon him. Mr McEwan states that since the incident he feels emotionally cut off, joyless, hurt, frustrated, and angry. Since the incident, he has also suffered from stress and anxiety. He has become concerned about his personal safety. Your conduct has also impacted upon his relationship with his family members. He has suffered significant economic loss as a result of your conduct.
Background and personal circumstances
16You were born in Melbourne in 1999, and you are now 24 years of age. You were 22 years of age when you committed these offences.
17Your father works as a fencing sub-contractor, and your mother managed a supermarket. You have three older sisters. I was informed that you grew up in a happy, supportive, family environment.
18You completed Year 9 at secondary school, at the conclusion of which you were asked to leave. You then completed one year at a TAFE college.
19It is reported that your developmental trajectory shifted in your early teens when your family moved from Dandenong to the Cranbourne area. This resulted in you moving away from a stable friendship group and a change in your secondary schooling.
20You have an unfortunate history of drug abuse. You commenced to use cannabis at the age of 13 or 14, and you promptly progressed to regular use of methylamphetamine and ecstasy, as well as episodic alcohol misuse. You have also used hallucinogens. Your drug use contributed to family and school issues. A violent incident in the family home resulted in an intervention order being taken out against you. Your drug abuse not only impacted your relationship with your family and your schooling, it also impacted upon your ability to hold employment. Notwithstanding the problems caused by your drug-taking and behaviour, your family remain strongly supportive of you.
21You have admitted your criminal record. On 7 September 2017 you appeared before the Dandenong Magistrates’ Court on a number of charges, including intentionally damaging property, persistent contravention of a Family Violence Intervention Order, four charges of unlawful assault, two charges of making a threat to kill, burglary, criminal damage, and theft. You were then placed on an 18‑month adjourned undertaking, with conviction. It was a condition of the undertaking that you continue to receive treatment from the Recovery and Prevention of Psychosis team and abide by the directions of its staff.
22On 19 May 2018, again in respect of a number of charges, including possession of methylamphetamine, you were placed on a 12‑month Community Correction Order.
23On 13 December 2019, you appeared at the County Court at Melbourne on three charges of theft, a charge of attempted aggravated burglary, a charge of attempted aggravated carjacking with an offensive weapon, a charge of aggravated carjacking with an offensive weapon, burglary, and other offences, for which you were sentenced to an aggregate term of detention at a Youth Justice Centre for a period of three years. A period of 555 days was declared as having already been served by you by way of pre-sentence detention.
24On 30 January 2020, you appeared at the Melbourne Magistrates’ Court on charges of burglary, theft, and committing an indictable offence while on bail, and you were sentenced to two months’ detention in a youth training centre.
25On 17 November 2021, for offences of intentionally damaging property, and persistently contravening a Family Violence Intervention Order, you were convicted and placed on a 12‑month Community Correction Order.
26You also have convictions in New South Wales for offending that followed the offences before this Court, and which resulted in a three-month term of imprisonment.
Psychiatric History
27Exhibit D1 is a report of Dr Adam Deacon, consultant psychiatrist, dated 16 September 2019. A second report from Dr Deacon, dated 18 May 2023, was tendered, and marked Exhibit D7.
28In his first report, Dr Deacon noted that your psychiatric history included extensive treatment with the Monash Health Recovery and Prevention of Psychosis Team. You were first referred to that team in September 2015 and treated for psychosis in the context of polysubstance use. You required inpatient admission on two occasions in 2017. From August 2017 until your arrest in approximately June 2018, you were treated with monthly injections of antipsychotic medication. You were not consistent in taking your medication or attending for reviews. You had a provisional diagnosis of recurrent drug induced psychosis but, as time progressed, a diagnosis of schizophrenia was considered more likely.
29Dr Deacon reported that when he saw you on 13 September 2019 you appeared motivated to change and abstain from using illicit drugs. He also stated that your ability to regulate your behaviour has mostly been impacted by your illicit drug use.
30Dr Deacon assessed you again on 4 May 2023.
31He noted that you had completed 15 months of a Youth Parole Order between 2 March 2020 and 7 June 2021. While on parole, you were living with your parents and working with your father in his fencing business. You continued working with your father after completing your parole and you largely remained abstinent from illicit drugs. You were, it would seem, trying to lead a good life, including working, and joining a local football team.
32You told Dr Deacon that you used methylamphetamine and GHB on one occasion with a friend. You thereafter remained abstinent from illicit drugs for three to four months. You said you used again on another occasion but reported that feeling you maintained your self-control. You were later involved in a car accident and your car was written off. Without a car, you were not able to continue working. You said you felt depressed as a result and relapsed into using illicit drugs.
33With regard to the current offences, you told Dr Deacon that you had been using cannabis, methylamphetamine and ecstasy pills with a friend in Seaford. You said you booked an Uber to return home so you could rest. You told Dr Deacon you did not know what came over you, and you could not explain why you told the Uber driver to get out of the car or you would shoot him in the head. You did not have a gun. You said you then drove to New South Wales “to get away a bit … get away from drugs”.
34This offending, you said, occurred about one to two days after you were released from custody, having served some 12 days for breaching a Family Violence Intervention Order.
35Dr Deacon, considered that this current offending, and your history of offending, is inextricably linked to your drug use and its impact on your mental state.
36You were remanded in custody following the commission of the current offences. You reported to Dr Deacon that you felt “traumatised” and “unsafe” during your time on remand. You told him that you have been involved in a number of incidents with other prisoners resulting in you being moved between different prisons on some ten occasions.
37Dr Deacon considers your developmental history is consistent with a social anxiety disorder, and your underlying anxious disposition likely contributes to you feeling vulnerable in custody.
38Dr Deacon states that your primary need is intervention to address your substance use problem. He said you do not currently present with signs of an enduring psychotic disorder. Provided you remain abstinent from illicit drugs, disassociate from negative peer influences, and engage in employment and prosocial activities then, in Dr Deacon’s opinion, your prospects may be considered “reasonably favourable.”
References and Certificates
39A number of other documents and references were tendered on your behalf.
40Exhibit D2 is a letter from Nicole Tempany, Team Manager, Youth Justice South-East Metropolitan Region. Ms Tempany states that you were released onto a Youth Parole Order on 2 March 2020. Following your release, you attended all 49 of your Youth Justice appointments without fail. You are reported to have engaged respectfully, showing a positive attitude and motivation. As part of the supervision sessions, you engaged in discussions regarding potential high-risk situations, warning signs, and strategies to mitigate risk. You also participated in the Adolescent Violence Intervention Program; a program designed to assist young persons develop an understanding of their violence and establish skills to assist them to refrain from using violence. You only managed to attend 10 of the 28 scheduled sessions. In the sessions that you did attend, it was noted you became defensive when discussing your offending behaviour, although there were occasions when you engaged meaningfully and appeared motivated. Due to your non-attendance, your treatment episode was closed without you completing the program.
41You were on a Youth Parole Order for approximately 15 months. Ms Cannon submitted that you had done “exceptionally well” in attending all 49 appointments. In relation to the Adolescent Violence Intervention Program, Ms Cannon submitted that the program was disrupted by reason of the COVID-19 pandemic. Furthermore, the program involved challenging conversations with offenders, and this caused you difficulty.
42Ms Canon noted that during the time you were on Youth Parole, you actively engaged in sport and worked with your father in fencing. Upon your eventual release from custody, I was told that you will be able to return to live with your family and will have the opportunity of further work as a fencing contractor with your father. Your counsel properly submitted that your prospects depend upon your ability to abstain from illicit drug use.
43Exhibit D5 is a reference from your father. Your father states that as a result of your mental health and drug use issues, your parents have had to call police on several occasions because of your erratic and aggressive behaviour towards your family. Police took out an Intervention Order that resulted in you becoming homeless for a period of time. It was during that period of homelessness that you offended in mid-2018. Your father stated that following your release from detention following that 2018 offending, after some 22 months, your mental health had improved and you were doing well – working, playing football, and associating with pro-social friends. However, in about July 2021, your behaviour began to change, and you relapsed into illicit drug use. Your father stated that once again police had to be called because of your aggressive behaviour, and another Intervention Order was taken out by police. Your father noted that around the time you committed the current offences your mental health was at a very low point.
44Importantly, your father states that you have highly sought-after work skills in commercial and industrial security fencing; a positive support network from your immediate family; and a place to live in the family home upon your release. He states, however, that this is all conditional upon you refraining from drug use.
45Your mother also provided a letter to the court. She states that during this period of remand you have reflected on your past decision-making and have considered your future. She also states that you have worked, attended courses and meetings, and you are taking anti-anxiety medication. Your mother has daily contact with you by way of telephone and email and has also had numerous contact visits with you. In her opinion, you have learned from this experience of remand.
46A reference was also tendered from Michael Carlson who has known you since you were eight years of age. You are friends with his two sons, and Mr Carlson also coached you in junior football. He states that he is aware you have made bad choices of late and is hopeful that you can turn your life around and become a fine member of the community.
47Certificates showing your participation in Narcotics Anonymous and the program “AOD and Ice Effects,” were also tendered on your behalf. A single drug urine screen was also tendered. You did not test positive for any illicit substance. Ms Cannon informed me that you have only had that one random drug test.
Submissions
48Ms Sheridan-Smith, who appeared on behalf of the Director of Public Prosecutions, submitted that for the purpose of sentencing I should accept the victim’s evidence concerning the circumstances of your offending, with the exception of what was submitted to have been a “genuinely mistaken assertion that a gun was produced at the time.”
49Ms Sheridan-Smith submitted that it was an aggravating feature of your offending that you were put on a community correction order some three days earlier. This demonstrated, in her submission, a complete disregard for court orders and a lack of remorse for your offending.
50Ms Sheridan-Smith also submitted that despite your age, you have significant and relevant prior convictions. She pointed to the fact that soon after you completed your youth parole order, you quickly returned to the use of illicit substances, negative peer associations, and criminal offending.
51It was put that there was a degree of planning involved in your offending as evidenced by the text messages to your friends over the 24 to 30 hours before the offences were committed.
52Ms Sheridan-Smith submitted there was little to no evidence of your remorse and that it was only through your counsel’s opening address, that you indicated your guilt of the carjacking and robbery offences. Your character references, it was noted, do not mention any expressions of you being remorseful. Your prospects of rehabilitation, Ms Sheridan-Smith submitted, are “guarded” at best, and “poor” at worst.
53As for the gravity of your offending, it was submitted that you targeted a vulnerable Uber driver, in the early hours of the morning, and offended in a remote location. You threatened to shoot the victim in the head. Ms Sheridan-Smith submitted that the gravity of your offending falls within the mid to high range level of seriousness.
54Regarding the related summary offence, Ms Sheridan-Smith stated that the police tracking you were concerned about the speed at which you were driving. You were suspended from driving at the time and your speed in the Domain Tunnel was recorded at 150 km/h at 4:08 AM on 20 November 2021.
55Your counsel conceded that the victim of the carjacking was a soft target. She submitted, however, that the offending fell within the mid-range level of seriousness. Ms Cannon submitted that your offending was not planned but rather something that occurred spontaneously.
56Contrary to the prosecution submission, Ms Cannon submitted there is evidence of your remorse in your letter of apology addressed to Mr McEwan and your offer to resolve the charges with a plea to carjacking made in September last year. I shall return to that letter of apology, exhibit D6, later in these reasons.
57Regarding your prospects for rehabilitation, your counsel submitted that they may be viewed as “good” if, upon your release, you obtain the support you need, remain abstinent from illicit drug use, and steer clear of your antisocial peers. Ms Cannon submitted that you are under no illusion that you will have to obey your parent’s rules if you are to live with them. It is also hoped that you will complete a 10 month “Youth You” program upon your release. This, I was told, is a requirement of your parents if you are to live with them. Your previous compliance with youth parole, it was submitted, demonstrates that you have capacity to do well.
58Both counsel agree that the only realistic sentencing option available in all the circumstances, is that you be sentenced to a term of imprisonment with a non-parole period. It was submitted by Ms Cannon that given your relatively young age, you and the community would benefit from a lengthy period of supervision on parole.
Sentencing considerations
59The offences of carjacking and robbery each have a maximum penalty of 15 years’ imprisonment. They are inherently serious offences. The related summary offence of driving whilst your authorisation to do so was suspended has a maximum penalty of two years’ imprisonment. In committing that offence, I note that you drove a significant distance and, at times, at a very fast speed.
60I accept the prosecution submission, which was not disputed, that I should sentence you on a factual basis consistent with the victim’s evidence at trial, save for his mistaken belief that you were armed with a gun. It was not disputed that you told the victim to get out of the car or he would be shot in the head.
61In my opinion, this was a serious instance of carjacking. You offended against a soft target, in the small hours of the morning, in a relatively isolated location. Moreover, Mr McEwan was in a vulnerable position with you seated behind him, believing that you had a firearm in your possession. You threatened to shoot him. I have no doubt that Mr McEwan was terrified as a result of your offending. The robbery charge, I consider, occurred spontaneously when you saw Mr McEwan reach for the phone mounted on his dashboard.
62Persons such as Mr McEwan, who are simply trying to earn a living by providing taxi services, particularly in the small hours of the morning, should not be subjected to the violent and terrifying behaviour of those who, under the influence of drugs, seek to rob them of their possessions. They deserve the full protection of the law. In assessing the gravity of your offending, I have full regard to the deep traumatic impact that your offending has had on Mr McEwan.
63Your offending was unsophisticated. Given you booked the Uber in your name, using your personal account details, detection, I suspect, was inevitable.
64I consider there was an element of premeditation in the commission of the carjacking. The text messages you sent to your friends in the preceding 24 to 30 hour period provide some background as to your state of mind at the time you offended. However, I am not able to find that you planned to rob the Uber driver of his car and phone at the time you booked the Uber, as opposed to deciding to commit the offences while in the car. You were drug affected at the time and as observed by Dr Deacon, your thinking was likely to have been significantly compromised by the methylamphetamine, leading to marked disinhibition and poor judgment. You should understand, however, that committing offences under the influence of illicit drugs provides no excuse whatsoever for your conduct. Your moral culpability for your offending is high. It was not submitted that your drug intoxication in any way mitigates your culpability. You have in the past committed serious offences under the influence of drugs.
65I accept the prosecution submission that your offending was aggravated by reason of the fact that three days earlier, you were placed on a Community Correction Order. It is a standard condition of such orders that you not commit any offence punishable by imprisonment. You blatantly disregarded that condition of your Order.
66It is also a matter of some concern that you have relevant prior convictions including for aggravated carjacking, attempted aggravated carjacking, attempted aggravated burglary, burglary and driving while suspended. I have had regard to the reasons for sentence of Judge Cannon who sentenced you on 13 December 2019 for those and other offences. It is clear that the sentence imposed by her Honour did not deter you from further offending.
67While you do not fall to be punished for your past offending, your criminal history is relevant to my assessment of your prospects for rehabilitation, the need to deter you from further offending, and the protection of the community.
68I note from her Honour’s sentencing remarks, that your parents were then highly supportive of you, as they are now. Her Honour considered the support you enjoy from a good, law-abiding, family, was a protective factor and was also a consideration relevant to your prospects of rehabilitation. Her Honour observed that it had been a very difficult time for your family watching a person they love behave in the way you did. I make the similar observation.
69In my opinion, your prospects of rehabilitation at this time must be considered no better than “guarded”. Ms Cannon’s submission concerning your prospects is heavily qualified. Having said that, you are still a very young man, and should you avail yourself of your family’s support and obtain the treatment you need to deal with your illicit drug use, then there is still hope that you will reform and become a responsible member of the community.
70Tendered on your behalf was a letter of apology to Mr McEwan. I note that you also provided a letter of apology to the court when sentenced by Judge Cannon. Her Honour, while recognising that such letters of apology are self-serving, was prepared to accept that you demonstrated appropriate remorse and showed insight into the seriousness of your offending and its connection to illicit drug abuse. Her Honour then warned you that if you commit further offences while affected by drugs, then your appreciation of that connection between drug abuse and offending, may well be regarded as an aggravating feature by the sentencing judge. You told her Honour that you understood that warning. It has not been submitted that I treat your drug use on this occasion as an aggravating feature of the offences before me, but again, I caution you that should you re-offend, you may not be so fortunate in any future sentencing. You offend when under the influence of drugs.
71I am not prepared to find that your letter of apology is a genuine indicator of your remorse. It may well be, but in view of the earlier letter of apology and your subsequent re-offending, I am not satisfied, on the balance of probabilities, that you are remorseful.
72I do, however, take into account in your favour that you did not contest these charges and that your offer to plead guilty, at least to carjacking, was made in about September last year.
73In sentencing you, I also have regard to the significant period of time you have spent on remand, and the added burden of your mental health issues and the difficulties caused by the COVID-19 restrictions on your experience of remand.
74In my opinion, the sentencing considerations of general and specific deterrence, denunciation, and protection of the community from you have a significant role to play in the sentence to be imposed. That is, the sentence to be imposed, must seek to deter you and others from similar offending. The sentence must also mark this Court’s denunciation of your conduct.
75In determining an appropriate sentence, I have had regard to current sentencing practice. Sentences passed in other cases are but one of a number of sentencing considerations. As was said in DPP v Zhuang,[1] sentences imposed in other similar cases are not “precedents that must be followed unless they are capable of being distinguished.” However, a general overview of sentences imposed for similar offending may help to inform the instinctive synthesis.
[1] [2015] VSCA 96 at [30]
76Having regard to the fact that there are three offences, each of which occurred as part of the one overall incident, it is appropriate that I also have regard to the principle of totality. This principle requires me to review the total effective sentence to ensure that the aggregate is just and appropriate.[2]
[2] See Mill v The Queen (1988) 166 CLR 59 at 62-63
77I have also taken into account, in a general way, that you served 3 months’ imprisonment in NSW as a result of your driving recklessly following your offending on the matters before me. You were then disqualified from driving for a period of two years.
Sentence
78Having regard to all the circumstances of your offending, your personal circumstances, and the sentencing principles I am required to apply, you are to be sentenced as follows:
·Charge 1 – Convicted and sentenced to 3 years and 2 months’ imprisonment.
·Charge 2 – Convicted and sentenced to 6 months’ imprisonment.
·Related summary offence – convicted and sentenced to 2 months’ imprisonment.
79I direct that one month of the sentence imposed on charge 2 be served cumulatively on the sentence imposed on charge 1. This makes a total effective sentence of 3 years and 3 months. Having regard to your age and your good performance when on youth parole, I direct that you serve a minimum period of 23 months’ imprisonment before becoming eligible for parole.
80I am also required by s 89 Sentencing Act 1991 to disqualify your from driving. I do not propose to disqualify you from driving beyond the 12 months minimum. I am taking this perhaps unusual course because I consider it important for your rehabilitation that you be able to work upon your release from prison. Having a license will facilitate that ability to work. Accordingly, all licenses held by you are cancelled and you are disqualified from driving for a period of 12 months from today’s date.
81Pursuant to s 18 Sentencing Act the period of 543 days is to be reckoned as already having been served under this sentence.
82Disposal orders sought by the prosecution will be made.
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