Director of Public Prosecutions v North
[2021] VCC 2200
•19 October 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 20-00070
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| NATHAN NORTH |
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JUDGE: | HER HONOUR JUDGE GAYNOR |
WHERE HELD: | Melbourne |
DATE OF HEARING: | |
DATE OF SENTENCE: | 19 October 2021 |
CASE MAY BE CITED AS: | DPP v North |
MEDIUM NEUTRAL CITATION: | [2021] VCC 2200 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | MS H. BAXTER | Office of the Director of Public Prosecutions |
For the Offender | MS A. ADDAMO | Leanne Warren & Associates |
1HER HONOUR: Nathan North, you have pleaded guilty before me to one charge of burglary, one charge of theft, one charge of theft of a firearm. You also pleaded guilty to three summary charges which were uplifted for hearing in this plea pursuant to s145 of the Criminal Procedure Act. That is a charge of assault with a weapon, possessing an unregistered long arm and dealing with property suspected of being the proceeds of crime, being a box of pre-packaged Youfoodz.
2The facts underlying your offending are as follows. At about 11.30 am on Sunday 3 February 2019, you and your cousin, Luke Quinn-Sheeb, attended an address at Troups Road South, Mount Cottrell. You drove there in a 2005 Holden Berlina station wagon. At the time, you were 23 years old and your co-offender, Mr Quinn-Sheeb, was 22. The owner of the property that you drove to was Alexander Rollo, but he did not live there.
3The two of you parked the car out the front of the house and went into the property, forcing entry there. Whilst inside, a neighbour, Brendan Cassar, drove past and saw your car parked out front. Knowing no one was supposed to be there, he stopped to investigate. He saw the side door was open and he concluded there was someone inside.
4He called his friend and the caretaker of the property, Graham Hall, and told him to come over immediately, then went back to his car, which was a blue Mitsubishi Triton, which he positioned in front of your car, effectively blocking it.
5Mr Cassar then got out of the car, armed himself with a metal pole and went into the house yelling, 'Come out.' A short time later, Mr Hall arrived in his car and positioned it behind your car, blocking it from the rear, and contacted police. Mr Cassar could hear footsteps inside the house and called on the two of you to come out.
6While Mr Hall was dialling Triple 0, the two of you came out of the premises, returned to your car and tried to leave. In the meantime, you had stolen a .22 calibre long arm rifle, a flick knife and various coins from the house. These underly the charges of theft and theft of a firearm.
7Mr Quinn-Sheeb got into the front driver's seat whilst you got into the front passenger seat armed with the rifle, and the two of you tried to drive away but were blocked by the two cars that had been parked there. Mr Quinn-Sheeb accelerated his car backwards and forwards many times to make more room for himself to get away, and in doing this, collided with the cars belonging to Mr Cassar and Mr Hall.
8Mr Cassar then smashed the driver's side window of your car with a metal bat in an attempt to stop you from driving away, reached into the front driver window and took the keys from the ignition. You then pointed the rifle at Mr Cassar which caused him to retreat allowing enough time for you and Mr Quinn-Sheeb to get out of the car and flee on foot. Those actions underly the summary charge of assault with a weapon.
9Mr Hall had a mounted Dash Cam operating at the front of his car which captured the whole incident. The two of you ran through various rural properties in an attempt to get away, running into a property at Kennings Road in Tarneit where the owner, Daryl Nelson, was at home. He saw the two of you getting inside one of his trucks and saw that you were armed with the long arm rifle.
10Mr Nelson called Triple 0 and police told him to stay inside the house and not intervene because of the gun. By this time, the two of you knew police were near and went to a neighbouring property at 140 Kennings Road and disposed of the .22 rifle under the house. These actions underly the summary charge of a non-prohibited person in possession of an unregistered firearm.
11The two of you continued to attempt to avoid arrest, running through various properties until you reached 60 Kennings Road. There, special operations group officers had been deployed and they came into the property and arrested the two of you without further incident. After your arrest, you led the investigators to where the rifle had been stashed. It was unloaded.
12The car you were driving was searched and found to contain a package of pre‑prepared meals by Youfoodz, which was revealed to have been stolen from a Point Cook address earlier in that day. The possession of that item underlies the charge of dealing with property suspecting of being the proceeds of crime, which is a summary offence.
13You were interviewed and made the following admissions that you had found the gun in the house and left the property with it, and that you had run when the car window was smashed. You said that when you saw police you said, 'That was enough.', and you would have stayed where you were but you weren't sure where the man with the pole was, so you kept running.
14You said you tried to fire the gun when you were inside the house, but it wouldn't fire. You said the two of you had gone to the house because it looked empty. You admitted to taking a pocketknife when you were inside the house. You denied pointing the gun at Mr Cassar and when you were asked about the property that was located in the car, you replied, 'No comment.', and said that the car was not yours.
15The maximum penalty for burglary is 10 years' imprisonment. The maximum penalty for theft is 10 years' imprisonment. The maximum penalty for theft of a firearm is 15 years' imprisonment. The maximum penalty for being a non-prohibited person in possession of an unregistered long arm is 120 penalty units, or two years' imprisonment for a first offence.
16The maximum penalty for unlawful assault is three months' imprisonment, and the maximum penalty for dealing with property suspected of being the proceeds of crime is two years' imprisonment. You were placed in custody on 3 February 2019 and released on 19 February 2019 on bail. So you have 17 days of pre-sentence detention. You pleaded guilty at a committal mention on 22 January 2020.
17I now turn to your personal circumstances.
18You are now 24-years-of age. Your history was outlined specifically in a report by psychologist Carla Lechner dated May 7 2020. You are the youngest of three children born to your parents who separated when you were young. You had a good relationship with both your parents, but your father died when you were nine and your mother died in 2017. From the ages of 15 to 17, you were effectively her carer.
19You struggled with learning and only attended secondary college for one day, and then after that, wagged. You have had a limited work history. You have worked in labouring, bricklaying, and in a tyre store, and only for a couple of months at a time. You told Ms Lechner when you saw her 2020 that you could not recall when you last worked. You suffer from a mild intellectual disability and have been on a disability support pension for many years.
20You have some prior criminal history, but it is mostly confined to Children's Court matters. In 2014, you were dealt with by way of a non-conviction undertaking to be of good behaviour on charges of unlicenced driving using an unregistered motor vehicle on a highway and other driving offences. In the same year, the Sunshine Children's Court placed you on a good behaviour bond for the charge of possessing cannabis.
21You told Ms Lechner that at the time of this offending, you were with your cousin, Luke, as I have outlined. You said the two of you had been using MDMA, or ecstasy. You both believed that the house was empty and you described what you did on that occasion to Ms Lechner as a series of mistake decisions that you made as a result of the influence of drugs you had taken.
22Going directly to the report, you also said that you also had been drinking with your cousin, and that the two of you came upon the old house by chance. Ms Lechner described your offending as impulsive and opportunistic in nature. You told Ms Lechner that you had no idea why you took the gun, you did not even know if it worked.
23You told her you deeply regretted your actions and you had very much disliked the two weeks that you spent in gaol. For about the last seven years, you have resided with your sister, with whom you enjoy a good relationship, her husband, and their children.
24This matter first came before this court on 19 June 2020. At that time, I ordered an assessment for a justice plan. On 28 January 2020, the matter returned before me and I adjourned the matter further to allow assessment for the National Disability Insurance Scheme to assess you and become involved, and you have since been accepted onto the NDIS.
25The matter came back again on 28 July 2021 where I adjourned the matter further to ensure that more supports were in place to enable you to comply with a CCO. On 30 September 2021 at a mention, it was confirmed that the NDIS was involved and that you were receiving assistance from them.
26I also note that after your release on bail, you undertook the Court Integrated Services Program which you attended, and it appears that your main drug problem has been using cannabis and that that continues to this day. At the time, it was noted your sister was a significant support, that she accompanied you to the CISP appointments and demonstrated enthusiasm and commitment towards you. It was said that you engaged well.
27You have suffered a number of traumas. During the course of this case, your older brother, Brandon, to whom you were very close has died. You also, at the age of 15, lost your best friend in a motorcycle accident. In a letter written to this court by your sister on 18 June 2020, you were described by her as a caring, family-oriented young man with a huge heart.
28She said, quote, 'He has an intellectual disability and suffers from anxiety. Nathan sometimes suffers panic attacks when doing simple daily activities such as attending the doctors.' She said that she was very proud to see you bettering your life since getting into trouble and she said you had a stable home, accommodation, and her support.
29She concluded, quote, 'Nathan helps me care for my children daily. They love and adore their Uncle Nathan very much. Myself and my husband have attended all previous court cases for Nathan.', close quotes. There has been some offending since this matter, for which you were dealt with in the Magistrates' Court and placed on a community corrections order which you appear to have completed without particular difficulties, and it is noted that your co-accused, Luke, was dealt with in the Magistrates' Court for these offences.
30Your difficulty lay in the fact that you had offences involving the possession and use of a firearm. The prosecution, in a very fair submission by prosecutor Holly Baxter, noted that whilst as a matter of principle, burglary and theft are considered serious offences, there are mitigating features in this case, and I agree.
31They are that the offending was not sophisticated. There was no evidence of pre-planning. The burglary and assault occurred in daylight at a home on a rural property where it was clear there was no one occupying the house. You were unarmed when you went in. The value of the property stolen was low, and the most serious charge involved pointing the gun at Mr Cassar.
32The prosecution also accept that your plea of guilty was entered at the earliest stage and that there had been delay from the filing of additional charges relating to the firearm and uplifting the matter to the indictable stream. You were also cooperative with police and you made admissions which the prosecution accepted were demonstrative of remorse. That is, it was clear that you were sorry.
33You also have a very limited prior criminal history. The prosecution accept you have reasonable prospects of rehabilitation and ultimately it was accepted that, 'Having regard to the low-level nature of the offending, parity, and the offender's intellectual disability, time served as a result of the offender's PSD and a justice plan is an appropriate sentencing disposition.
34The important thing, Mr North, is that you have now got a lot of supports in place that you did not have at the time you committed this offending. Also at the time of this offending, a 10-year relationship you had been involved in had also broken down. You have not had an easy life, Mr North, and in the circumstances it is my opinion that you have managed pretty well.
35I accept that this was a sudden decision that you made while you were drinking and using ecstasy, that you went into a house that was empty and that, as far as burglary and theft is concerned, this is a low-level example of it. As I have already said, the most dangerous and serious offending you engaged in on that day was pointing the gun at Mr Cassar.
36This matter has been adjourned on a number of occasions, and during that time you have continued to live in the stable environment with your sister. The NDIS has become involved. Intellectual disability services are involved. I received a report in relation to the justice plan, which is that you should have counselling both for your losses, for grief, particularly regarding your parents and your brother, and that you should also have counselling for drugs.
37It is not my view that you are a person who is a danger to the community, and in all the circumstances, I am going to deal with you by way of a community corrections order and you have been found suitable for that order. Although it was suggested by the prosecution that I should deal with you by sentencing you to some gaol, but saying you had already served it, I am not going to take that step at the moment, at this point in time.
38It is not my view that gaol is necessary. The offending, although it involved offences which are always seen as serious, falls into a category which puts them at the lower end of seriousness in the range available for that offending, and also there are a number of mitigating factors. By mitigating factors, I mean things that are in your favour.
39That is, that you were sorry, that you were cooperative police. I have already spoken about how this was just – this was a stupid piece of offending by you, and a great deal of that offending, it seems to me, was a result of panic by you. The gun was not loaded. You all kept running because of the police, and you were also scared of Mr Cassar because he had a pole.
40Hopefully, you have learned a lesson from it and I accept that going – being kept in gaol was something you did not enjoy and that you certainly do not want to go to gaol. Further, you have got the support of your sister and her husband and children. You have got stable accommodation and you have now got the supports of intellectual disability and the NDIS.
41I note that you have been found suitable for placement on the order, and I am going to put you on the order, but I am going to – there is going to be some conditions in the order, and they are that you do some community work. You are to get some treatment for drug use, which is cannabis, and for drinking, and also some mental health. That is, I want you to go and see a psychologist.
42And that is going to be important, because you have had a lot of loss in your life, Mr North. You have lost your parents. You have lost your brother, and in my view, it is important you get some support for that as well, and I am going to place you on a justice plan.
43All right. Are you prepared to enter the order, Mr North? Because I cannot put you on the order unless you agree to me doing it. So, I have to ask, do you agree to being put on the order?
44OFFENDER: Yes.
45HER HONOUR: All right. I have to explain to you what the conditions of the order are, Mr North, okay? And your solicitor will talk to you about this afterwards. They are that you have to report to the Corrections Office within two working days of the making of this order. That is, you have to report to them by Thursday this week. All right?
46OFFENDER: Yes.
47HER HONOUR: The order is going to last for 14 months. While you are on the order, you cannot commit any other offence that you could go to gaol for. That does not mean you have to be sent to gaol. But if you do something like, I do not know, steal a box of matches from Woolworths, you could go to gaol for it, and that is enough to breach the order.
48And by breach the order, what that means is, if you commit an offence like that while you are on the order, you have to come back before the court and I can sentence you again for what happened at the house that day. Does that make sense to you?
49OFFENDER: Yes.
50HER HONOUR: Thanks, Mr North. All right. You have to tell Corrections about any change of employment or where you are living within 48 hours of making that change. You cannot leave Victoria while you are on the order unless you have got the permission of the Community Corrections Office. You have to report to and receive visits from the Community Corrections Office.
51You must not go to the Community Corrections Office if you are under – if you are drunk or you have been – or you are under the influence of drugs. Okay? And you have to obey all the lawful directions. You have to do what Corrections tell you to do. Okay?
52OFFENDER: Yes.
53HER HONOUR: I am going to order that you do 100 hours of unpaid community work. You are to have treatment and rehabilitation for drugs and for alcohol. You are to attend on a psychologist for mental health difficulties. You are going to be on a justice plan, and that just means that – you have already spoken to people from the intellectual disability services, haven't you?
54OFFENDER: Yes. I have a little bit, yes.
55HER HONOUR: Yes. You know, they are ‑ ‑ ‑
56OFFENDER: I just (indistinct).
57HER HONOUR: Yes. They are supposed to – they have got services that they can give you.
58OFFENDER: Yes.
59HER HONOUR: And they are going to make sure that you get the right counselling for drugs and for the losses that you have had in your life. Am I making sense to you, Mr North? Are you understanding what I am saying?
60OFFENDER: Yes.
61HER HONOUR: Just because I have used a bit of legal language during this, which I am supposed to do, but it is important that you understand too, okay? Much more important that you understand.
62OFFENDER: Yes, I do, yes.
63HER HONOUR: All right. I am also going to order there be supervision, which means that Corrections will be getting in a bit of contact. Now, it is probably going to lift soon, but because of COVID, at the moment a lot of it is by phone. You have got a mobile phone, haven't you?
64OFFENDER: Yes. They called me the other day and she said she is going to come visit, maybe.
65HER HONOUR: Yes, okay, good.
66OFFENDER: Yes.
67HER HONOUR: That is probably from the Magistrates' Court Corrections Office that you – the order that you are already on. There is also going to be judicial monitoring. What that means is, every so often I am going to get a report from Corrections about how you are doing.
68OFFENDER: Yes.
69HER HONOUR: And you will need to come to court. We can do it through the video, the way we are now. It is just so I can check in that you are going okay on the order. All right?
70OFFENDER: Yes.
71HER HONOUR: So we will do the first one – I think we will do it in late January, I think. All right?
72OFFENDER: That will be (indistinct).
73HER HONOUR: That is all right. It just means that I can keep an eye on how things are going and have a chat to you about how you are going, and if we need to move things around, we will. I just want to make sure you are doing what you need to on the order. All right, Mr North?
74OFFENDER: Yes. Thanks.
75HER HONOUR: Good. Yes, thank you. 9.30 on 27 January. Okay. Corrections will remind you about that date. Everything going well at your sister's?
76OFFENDER: Yes, it is, yes. She just had a little boy.
77HER HONOUR: She had another baby.
78OFFENDER: Yes. She just had a little boy, yes.
79HER HONOUR: So is that number four now?
80OFFENDER: No, three.
81HER HONOUR: Three, okay. That is great.
82OFFENDER: My two nieces and then I have got a nephew, yes.
83HER HONOUR: That is terrific. All right. Look, that is all, and as I said, I am putting you on a justice plan. All you have to do is basically keep your nose clean, Mr North, and you just have to be a bit careful because obviously, you know, when you have had a bit much to drink, or you are using something harder than cannabis – not that I am saying it is necessarily fantastic that you are smoking as much cannabis as you are, and you are going to have to do some work on that too.
84But you know what happens when you get a bit high or you get a bit drunk. That is when the silly offending happens, all right?
85OFFENDER: Yes.
86HER HONOUR: Okay.
87OFFENDER: Thanks, Your Honour.
88HER HONOUR: No problem. I see there is a disposal order, and I will make those orders. Yes, I will sign those orders. That is for disposal of the guns. And that is all we need to attend to. Now, I do not think I have to do a s6AA declaration, Madam Prosecutor, because it is a community corrections order under two years.
89MS BAXTER: That's right, Your Honour.
90HER HONOUR: Thank you very much.
91MS BAXTER: That's correct, Your Honour.
92HER HONOUR: Yes. All right, thank you. Is there anything else I need to attend to?
93MS BAXTER: No, Your Honour.
94MS ADDAMO: No, Your Honour.
95HER HONOUR: Good luck, Mr North. You have done pretty well, okay, over a long time. I should add that there has been a considerable delay. Part of that has been because of the deferrals I have ordered, but all in all I am – that is another mitigating factor that I take into account and I acknowledge progress that has been made, both by Mr North and in ensuring he has more supports available to him. Thank you very much everyone. All right. Yes, thank you.
96OFFENDER: Thank you.
97MS BAXTER: As the court pleases.
98MS ADDAMO: May it please the court.
99HER HONOUR: We can adjourn to 9.30 tomorrow morning. Thank you very much.
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