Director of Public Prosecutions v Nicoll

[2015] VCC 866

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-15-00674

DIRECTOR OF PUBLIC PROSECUTIONS

v

LAWRENCE GRAHAM NICOLL

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JUDGE:	HER HONOUR JUDGE DAVIS
WHERE HELD:	Melbourne
DATE OF HEARING:	22 June 2015
DATE OF SENTENCE:	22 June 2015
CASE MAY BE CITED AS:	DPP v Nicoll
MEDIUM NEUTRAL CITATION:	[2015] VCC 866

REASONS FOR SENTENCE
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Subject: Criminal – plea – sentence
Catchwords: Theft, four charges of obtaining property by deception
Sentence: Adjourned undertaking for 12 months; ordered to pay restitution of $1225.36.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr N. Hutton	OPP
For the Offender	Mr T. Strong	Ann Valos Criminal Law

HER HONOUR: 

1Lawrence Graham Nicoll, you have pleaded guilty to one charge of theft and four charges of obtaining property by deception.  The charges arise from incidents which occurred on 6 September 2013. 

2You had, between 1 am and 5 am on that day, been to a hotel with your girlfriend Melanie and others, and around 4.30 am you had an argument with another patron, the complainant, Shane Isbister, who then left the hotel.  You were unaware that after leaving the hotel the complainant was assaulted and robbed.  However, you ended up in possession of his NAB credit card, which you used shortly thereafter four times in Melton and Melton South to buy goods from Kmart Australia, Coles Supermarket, Coles Express and 7-Eleven for a total value, subject to confirmation, of $1,225.36.

3You were arrested on 17 October 2013 and were remanded in custody.  You spent 49 days in custody before obtaining bail.

4The matter was originally listed for trial commencing today, but the matter resolved this morning prior to the commencement of the trial.

5The prosecution conceded that a disposition by way of a community corrections order would be appropriate given the nature of the charges, your plea of guilty, your age and the fact that you have no prior convictions. 

6Your personal circumstances may be briefly summarised.

7You are one of 12 children from a close family in New Zealand.  You came to Australia in 1993 and spent most of your time in Queensland.  You have been married twice, once in New Zealand, and have six children from these relationships aged between 32 and 13 and you are close to them and their mothers.

8You have worked all your adult life, mainly as an interstate truck driver, but have not been employed since your arrest.  When these matters are resolved, you intend to return to Queensland, where you have an offer of driving work with Toll Holdings.

9You have no issues with drug or alcohol.  You are no longer in a relationship with Melanie.

10You had no prior convictions at the time of this offending, although you have some subsequent offending for which you received a community corrections order.  You completed the therapeutic component of that order but have yet to complete the community work components due to personal problems.

11Whilst indicating that you remain willing to comply with any orders made by the court on this plea, your counsel submitted that a sentence of immediate imprisonment would not ordinarily be imposed for your offending and that having regard to the seven weeks you spent in pre-sentence detention as well as the 18 month delay before resolution of the matter, the imposition of a community corrections order would be inappropriate.  In the circumstances, it was submitted an appropriate disposition would be one confined to time served plus restitution.

12I accept the matters put in mitigation on your behalf.  You have no prior convictions, pleaded guilty on the first day of trial as a result of resolution discussions with the prosecution, have a solid work history with an offer of future work in Queensland, no drug and alcohol issues and good prospects of rehabilitation.  The matters pleaded to are ones which would not ordinarily attract a sentence of immediate imprisonment.

13Given the seven weeks you have already spent in pre-sentence detention, I consider that the imposition of a community corrections order would also be excessive. 

14In all the circumstances, having regard to the 7 weeks pre-sentence detention already served, as well as the 18 months this matter has been waiting resolution, I propose to impose an aggregate sentence as follows:

15You are convicted, ordered to pay restitution in the sum of $1,225.36, subject to confirmation ‑ ‑ ‑

16MR HUTTON:  That's correct, Your Honour.

17HER HONOUR:  And I impose a requirement that you be of good behaviour for a period of 12 months from today's order.  Whilst not being in a position, therefore, to declare the time that you spent in custody as pre-sentence detention, I am proposing to record on the order that you spent 49 days in custody on these matters before obtaining bail. 

18I also propose to make the forensic sample order sought by the prosecution.

19Pursuant to s.6AAA of the Sentencing Act, I indicate that but for your plea of guilty, I would, as an aggregate disposition, have convicted and fined you the sum of $1,500 and ordered you to pay restitution in the terms already described, as well as imposing a 12 month good behaviour bond.

20That is what I am proposing.  Are there any difficulties?  We will prepare drafts of those orders and I will do the forensic sample order now if that is all right.

21MR HUTTON:  Your maths is correct, Your Honour.

22HER HONOUR:  All right.  Thank you.

23MR HUTTON:  And there's the draft 464 orders.

24HER HONOUR:  Thank you.  Mr Strong, I do not know if you want to be heard on that, but the reason that I have not clearly sentenced him to time served is because it is not an appropriate disposition and therefore I cannot record the pre-sentence detention.

25MR STRONG:  I understand that completely, Your Honour.

26HER HONOUR:  But I am content to record on the orders that he has in fact spent the 49 days in custody while awaiting bail, so that in the event that he wishes to rely on the record ‑ ‑ ‑

27MR STRONG:  Of course.

28HER HONOUR:  That he can be provided with a copy of the order to that effect.

29MR STRONG:  Yes, and we won't double count if something happened in the future and they wanted to (indistinct) Karpinski's case or something like that, so ‑ ‑ ‑

30HER HONOUR:  All right.

31MR STRONG:  Your Honour, could I just check with my client what the closest police station is for the purpose?

32HER HONOUR:  Absolutely.  The forensic order sought, that is not opposed; is that correct?

33MR STRONG:  No, Your Honour, it's simply a matter for Your Honour.  My client says Melton is the closest police station.

34HER HONOUR:  All right.  Excellent.  In that case, application was made by the prosecution for the provision of a forensic sample order by taking a scraping of the mouth or a blood sample.  Having regard to the circumstances of the offending, I find that the granting of the order is in the public interest and that you have not opposed the order.  I will make it and sign it shortly.

35I am required to warn you that if at the time that you are requested to supply a sample of your DNA by a scraping from the inside of the mouth under supervision by an authorised member of the police force, then the sample will be taken in that way, but if, when requested by the officer to provide the sample in that way, you either fail or refuse to provide the sample, the officer is authorised to take a blood sample and to use reasonable force to obtain that blood sample.  Do you understand?

36OFFENDER:  Yes.

37HER HONOUR:  Thank you.  It is just going to take a little while to prepare the order.  The restitution order is for a total sum, but the names of the beneficiaries have to be set out individually.

38MR HUTTON:  I understand, Your Honour, from the order that is the National Australia Bank.

39HER HONOUR:  Excellent.

40MR HUTTON:  That might make it simpler.

41HER HONOUR:  That makes it easier.  All right.  In that case it is the one amount.  Thank you.  I will give you a copy of those to sight before I sign them.  All right, thank you.

42(Short adjournment.)

43I will just have Mr Nicoll sign the undertaking.  Thank you.

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