Director of Public Prosecutions v Owens

[2018] VCC 215

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-17-01927

DIRECTOR OF PUBLIC PROSECUTIONS

v

CHRISTOPHER OWENS

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JUDGE:	HIS HONOUR JUDGE MONTGOMERY
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	19 February 2018
CASE MAY BE CITED AS:	DPP v Owens
MEDIUM NEUTRAL CITATION:	[2018] VCC 215

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Mr S. Lee
For the Accused	Mr M. McGrath

HIS HONOUR:

1Christopher Owens, you have pleaded guilty to one charge of conduct endangering life, one charge of burglary, one charge of theft and two summary charges of Charge 4, deal with property suspected of being proceeds of crime, Charge 6, deal with property suspected of proceeds of crime.  You have admitted an extensive criminal history that involves multiple offences of dishonesty, which is in the order of forty convictions for theft, four for attempted theft, sixteen for burglary and four for attempted burglary, some violence and some drug convictions and a conviction for drive in a manner dangerous in 2005, which is of course relevant to Charge 1.

2The facts of the matter are set out in the prosecution opening. Any reader of these reasons can refer to that exhibit, to place the sentences in their factual context.  The facts are not disagreed, apart from the matter mentioned this morning, as set out in paragraph 23 of the summary.  I am not in a position to make a finding as to the value of the items that were recovered and those that were not recovered.  No victim impact statements were made.  The prosecution submission on sentence was that a combined custodial and community corrections order was not within the range.  You committed the burglary and theft offences whilst on bail for the driving matter and I am told your offending has also breached a suspended sentence.

3In mitigation on your behalf, your counsel filed written submissions, tendered various medical reports and two drug urine screens which were randomly taken at the prison on 8 October 2017 and 3 January 2018 and they were negative.  During the making of oral submissions, he also called, as witnesses, yourself and your step-father.  In your evidence, you gave the history of your attempts at drug rehabilitation with Professor Currie.  Your mother and step-father had been paying for that and you have been seeing him once a fortnight, for some one to two hours.  You gave evidence about your previous employment history and the medications that you have been on.

4You told me of your relationship with Alayna Howard, who visits you once a week.  You have contact with your family also once a fortnight.  In relation to the motor car incident, you said you were using drugs then because you were proud of your advances in stopping the use of drugs.  As I commented during the plea, that sort of logic could only be obvious to a drug addict.  It certainly is not obvious to anyone else.  On bail, you continued to see Professor Currie and Ms Abadee.  You told me of the circumstances of the passing of your brother in 2013 and your struggle with bail conditions.  In relation to your drug addiction, you said "I want to leave this crap life behind me".  You told me of your conditions in Port Phillip where you had been in lockdown in MRC and also at Port Phillip.  You had been working in horticulture, you do gym work and you have begun to read, even though you left school at 14 and are dyslexic.  You intend to find employment upon release and live with your partner. 

5You have put on a considerable amount of weight in gaol you tell me.  In relation to the motor car accident, you said you were very sorry for what occurred and recognise that you could have killed either of the two passengers, yourself and other road users.  Your step-father, John Fiori, also gave evidence.  He has been visiting you and speaking to you on the phone.  He said that when you do not take drugs, you are a different person.  When you are on illegal drugs, you suffer mood swings.  His view was that when you are in employment, you are much better off.  You actively sought help and were on medication.  He knows Ms Howard and she often comes over to the family house for dinner.

6Upon release, he said that, your mother and himself would continue to support you, not only emotionally and financially, but also in relation to your drug rehabilitation, which they have been paying for.  I accept that at this stage, you are sorry for what happened and that you do have good intentions in relation to your drug addiction.  However, the problem is, whether those good intentions, when you are released, can continue.

7I certainly encourage you whilst you are in custody to remain drug free, no matter what temptations are placed in front of you, particularly, if you react in an adverse way to the sentence I am about to impose.  Your counsel outlined in his written submissions your personal history.  I will not go through it in any detail.  You were raised in Frankston.  You went to school to Year 10.  You had a learning disability and left school at the age of 15.

8You began using cannabis from the age of 13 and from the age of 15, prescription drugs and heroin and at age 18, amphetamine use.  You have been through various rehabilitation centres.  You have had a variety of jobs, including forklift driving, plastering, spray painting, labouring, truck jockeying, scaffolding, concreting, demolition and tree lopping.  Prior to your remand here, you were working for Frankston Concrete Products.

9Your counsel tendered three medical reports.  One from Denise Abadee, dated 24 January 2017.  She is a drug clinician.  She set out in that the counselling and treatment that she has been able to provide to you.  You were at that stage attending weekly sessions, along with phone sessions on a regular basis.  She said you presented well and she was relatively optimistic about your prospects.

10Professor Currie who is a neurologist and an addiction medicine specialist, also in his report dated 9 March 2017, set out the treatment that he has been providing for you.  He was very impressed with the efforts you are making towards your own rehabilitation.  At the time of writing that report, you were able to abstain from all illicit drugs, including heroin and amphetamine.  He opined that with the treatment program, your prognosis for long term recovery is now improved.  There are also two reports from Dr Aaron Cunningham, a psychologist, one dated 11 May 2017 and 3 November 2014.

11He outlined that your major problem in life is your drug addiction.  I accept that your offending is centred on your drug addiction and you have made various attempts at drug rehabilitation.  Unfortunately, they have not succeeded.  Your mother and step-father have arranged and paid for your consultations with Denise Abadee, Professor Currie and Karen Walker, a clinical psychologist and they will continue to do so upon your release.

12You are indeed lucky to have people who are prepared to support you to that extent.  Many people with drug problems like yourself and with a criminal history like yours do not have anyone to support them and when released, they go back on the scrap heap of life and within a short period of time, are back in gaol.

13I recognise that overcoming a drug addiction is a long tortuous battle.  However, your offending here by relapsing into drug use, after extensive counselling, must be a considerable disappointment to your mother, step-father and no doubt yourself.  Your counsel, at p.7 of his written submissions, set out the mitigating matters that I should consider and I have taken them into account.

14He submitted that I could consider a combined custodial community corrections disposition and referred me to the case Younger, 2017, VSCA 199 as to how I could approach it.  The basic purposes for which a court may impose a sentence are punishment, general deterrence, both specific and general rehabilitation, denunciation and protection of the community. 

15In sentencing you, I must have regard to a range of matters, such as the seriousness of the offending, your culpability for it, your personal circumstances and those of the victim's.  I am required to balance the interest of the community in denouncing criminal conduct with the interest of the community, to seek to ensure as far as possible, offenders are rehabilitated into society.  I express my denunciation of your behaviour.

16I have decided that a combined custody community corrections order is not within my sentencing range, because of the frequency with which you have offended in a dishonest fashion, as I have outlined and also because of the seriousness of your driving here.  You were driving at about 5.30 am on
2 August 2016 along the Hastings Road.  The road surface was wet, it had been raining.  You had two passengers in the car, Alayna Howard in the front seat and Bridgette Morrison in the right rear passenger's seat.

17You were travelling at a speed of 80 kilometres per hour in a 60 kilometre zone.  You lost control of the vehicle, struck a curb, causing your vehicle to rotate 90 degrees and collided at high impact with a power pole.  All three of you were trapped in the vehicle and have to be extracted by attending County Fire Authority crews.

18Ms Howard suffered a fractured left foot, a sprained ankle, laceration to her head requiring seven stitches, a chipped tooth, cuts to her face and right eye and bruising and soreness to her body.  Ms Morrison was released from hospital with a broken right arm and multiple bruising.  Your blood was analysed and tested positive to methylamphetamine, amphetamine alprazolam and paracetamol.

19When you were taken to the Frankston Police Station, police observed that you were clearly substance effected and after examination by a forensic medical officer, you were deemed unfit for interview.  As I have already remarked, during the course of the plea, you are very fortunate that more serious injuries and indeed death, did not result from your driving on that particular morning.

20

1)I have taken into account your plea of guilty, which is an early plea.     It has the benefit of saving the court the cost of a trial and is an         expression of responsibility by you for your actions and it has been   given the appropriate discount.

2)      The family support that you have. 

3)      The efforts at rehabilitation you have been making.  It is submitted         by your counsel that you have some prospects of rehabilitation, on           guarded in coming to any assessment of your prospects of               rehabilitation, given your relapse in drug use, that has resulted in               this offending, even though at the time, you were in rehabilitation.

4)      The driving that I have just described.

5)      I have taken into account your time in custody which has been              onerous because of the conditions as outlined by your counsel.  On          the positive side you have tested negative to two drug tests and               you have been doing some work and undertaking courses.

6)      Remorse, I accept that you are remorseful.  You gave evidence to         that effect and I accept that you have a desire to rid yourself of                   addiction.  However, as you know, addiction is not cured by a desire             to get yourself rid of it, you must actually do it. 

21You want to resume work and live with your partner.  You are now aged 35 and can I suggest that you are at a turning point in your life.  You either are successful in ridding yourself of your addiction, or you will spend the rest of your life in and out of gaol.  Of course if you do commit further criminal offences, they not only effect yourself and your family, but they effect the people upon whom you commit the offences.

22Having considered all these matters, because of the serious and repeated nature of your dishonesty offending, and the circumstances of the driving that I have just related, general deterrence, that is, I have to impose a sentence that may deter others from committing similar crimes and specific deterrence, that is, that I have to impose upon your mind that if you do commit a criminal offence, there will be consequences are important considerations.

23Those matters have convinced me to conclude that a prison sentence is the only option.  Hence I impose the following sentences.  On Charge 1, I sentence you to a term of imprisonment of two years.  On Charge 2, a term of imprisonment of two years, six months.  On Charge 3, a term of imprisonment of one year.  On summary Charge 4, a term of imprisonment of six months.  On summary Charge 2, a term of imprisonment of six months.  The sentences on Charge 2, 3, summary Charge 4 and summary Charge 5 are concurrent.

24I direct that the two years on Charge 1 be served cumulatively upon the two years six months on Charge 2 and concurrently with the sentences on Charges 3 and summary Charge 4 and 5, which makes a total effective sentence of four and a half years.  I declare that you should serve a period of two and a half years before being eligible for parole.  What is the pre-sentence detention up to now?

25MR LEE:  Three hundred and nine days, Your Honour.

26HIS HONOUR:  Do you agree with that Mr McGrath?

27MR McGRATH:  Yes, Your Honour.

28HIS HONOUR:  I declare that 309 days that you have already served to be reckoned as part of the term of imprisonment I have just imposed.  I am required to declare under s.6AAA what I would have imposed if you proceeded to trial by a jury and you were convicted.  It is always a guess or a stab in the dark, as far as I am concerned, in fixing this figure, but it would have been in the order of seven years, with a non-parole period of five.  Are there any other matters I have to consider?

29MR LEE:  No, Your Honour.

30MR McGRATH:  No, Your Honour.

31HIS HONOUR:  Thank you.  Take Mr Owens out, thank you.  I'll adjourn briefly and come back for the next matter.

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