Director of Public Prosecutions v Prendergast
[2019] VCC 987
•25 June 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 19-01164
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BARRIE PRENDERGAST |
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| JUDGE: | HIS HONOUR JUDGE CARMODY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 25 June 2019 |
| DATE OF SENTENCE: | 25 June 2019 |
| CASE MAY BE CITED AS: | DPP v Prendergast |
| MEDIUM NEUTRAL CITATION: | [2019] VCC 987 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Attempted burglary – Possess a controlled weapon without excuse.
Legislation Cited: s54C Sentencing Act 1991.
Cases Cited: DPP v Boulton [2013] VCC 972.
Sentence:Attempted Burglary – Charge 1: Convicted and sentence to serve a community corrections order for period of two years.
Possess a controlled weapon without excuse – Summary Charge 5: Convicted and sentence to 3 days imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr W. Stougiannos | Director of Public Prosecutions |
| For the Accused | Mr J.D. Williams | Victoria Legal Aid |
HIS HONOUR:
1On 11 June 2019, Barrie Prendergast, you pleaded guilty at the Melbourne County Court to the following charge on indictment No.G134115429.2A:
Charge 1, attempted burglary of premises at 7 Dawson Street, Upper Ferntree Gully, on 20 November 2016. The maximum penalty for this offence is five years' imprisonment.
2The summary charge of possess a controlled weapon without a lawful excuse was transferred to this court with all the original charges, including Charge 1 on this indictment. Through your counsel, you have consented to this charge being heard and determined for sentence here today. You have pleaded guilty to that charge.
3The maximum penalty for that charge is 60 penalty units, or one year's imprisonment. The controlled weapon is a small hatchet with a fold-in knife arrangement into the handle. It is this implement that you used in your attempted burglary, as I understand the prosecution case.
Background
4You were initially charged with a further two charges of arson and four charges of theft. Upon your plea to the attempted burglary charge, the prosecution announced and filed a notice of discontinuance in respect of one charge of arson. You were acquitted by a jury of twelve, of the four charges of theft and the outstanding charge of arson on 21 June 2019. You have had all of these charges hanging over your head, like the sword of Damocles, since
20 November 2016.5You have an extensive criminal history. Between 17 July 2003 and
20 November 2016, you have had 23 separate court appearances.
Most relevantly, you have three prior convictions for burglary on 8 June 2011, 15 July 2015, and 16 October 2015, all of them at the Ringwood Magistrates' Court, and on 6 July 2011, an attempted burglary charge at the Melbourne Magistrates' Court.6The winter months are a bad time for your court appearances. You have been in prison on 13 of the 23 occasions you have faced court. You are a persistent offender who shows definite signs of being a very slow learner.
Circumstances of your offending
7The prosecution tendered a summary of prosecution opening on plea, dated 24 June 2019. It was Exhibit “A” on the plea. Sometime between 4 and 9 pm on 20 November 2016, you entered the property of Ferntree Orthodontics, which is located at 7 Dawson Street in Upper Ferntree Gully.
8While on the property, it is alleged that you did the following:
(a) You went to the rear of the premises and entered an external storage shed. You opened up one of those sheds, which contained patients' dental records, and;
(b) You went to a rear window of the main premises and forced the flywire screen for the window.
9At some point, you went to a window on the southern side of the building, which is said to be the same window, and used an implement to strike a timber window which caused damage to the frame. Your fingerprint was found on this window. It is alleged that this implement is the multi-tool with an axe head that was found on you when you were arrested, and that relates to the other charges I said before.
10You were interviewed on 28 November 2016, and during that interview, you said as follows:
(a) You had taken a large quantity of ice on that day;
(b) When asked whether you had had anything to say about your fingerprint being found at 7 Dawson Street, you said, 'I must have been really off my face, because I can't remember that place', and;
(c) When asked why you committed the burglary, you replied, 'No comment.'
11It is agreed that you have served three days pre-sentence detention in respect of this general offending. You were granted bail on 30 November 2016. You have been incarcerated for other offences since this offending. You were released from custody, as I understood your evidence, on 23 April 2018.
On 5 June 2018, you were again remanded for a chart of shop theft.
On 14 June 2018, you were sentenced to ten days, which was effectively time served, and released straight away. What that all means is that you have maintained your bail on strict conditions for a period of 12 months since you were released on 14 June 2018.
Personal Circumstances
12You are now 35 years old. You have an extensive criminal history. Your prior convictions take up 21 pages of criminal history report. At your plea, post-offence court appearances were also handed up to me. The full criminal history now runs for 38 pages of a criminal history report.
13Since your offending in this case, you have been sentenced to imprisonment, on three separate occasions. They are 10 March 2017, 23 August 2017, and the last one being 14 June 2018. The total of those sentences is, on my calculation, approximately 14 months' imprisonment.
14I note from the criminal records that at the time of your sentence on 14 June 2018, you were on 75 milligrams of methadone. Your evidence is that you got down to take 50 milligrams of methadone, but recently increased your dose to 80 milligrams of methadone in the leadup to your trial, and as you described it, the stresses around it.
15You have been assessed by Carla Lechner, forensic psychologist. Her report is dated 14 April 2018. It was Exhibit “1” on the plea. You were assessed as borderline range on the verbal comprehension index. You were assessed as mildly depressed.
16In April 2018, you admitted to Ms Lechner your involvement in this attempted burglary. Your denial of the theft and fire offences has been vindicated by the jury verdict. Ms Lechner has assessed you as having symptoms of stimulant and opioid use disorder. You were using methylamphetamine at the time of this offending. You were also prescribed methadone at that time.
17You grew up in a violent household. Your father was a drug user and a diagnosed schizophrenic. He beat your mother, and he beat you when you came to her defence. You have a younger brother, Daniel. Daniel is an electrician by trade, and in the last year, has given you some sporadic labouring work when he can make the occasion to do so.
18Your education finished partway through Year 10 at Boronia Heights Secondary School. You have been diagnosed with ADHD as a 12-year-old, and prescribed dexamphetamine. This medication did not alleviate your symptoms.
19After you left school, you had work as a fencer and a labourer. You also had employment at Toyota in Nunawading for a period of some five years. This was the most stable time of your employment history.
20Your drug use commenced at age 13, with cannabis and alcohol use. On your 16th birthday, your father injected you with amphetamine as his present to you for your birthday. You have used and been addicted to heroin in your 20s.
You still have a prescription for methadone. You have used ice for years up to this offending. You told the police on your arrest that you were 'off your head' on ice at the time of the offending.21Your drug use has had many impacts on your life. You were assaulted in 2010 due to an unpaid drug debt. As a result of that assault, you spent one month in hospital and lost your spleen through surgery. As I say, the assault was motivated by your non-payment for drugs.
22You have consistently and persistently offended to pay for your drug habit. You have been incarcerated on numerous occasions for your offending.
23In this plea, you have given evidence. Evidence from a prisoner is a rare occurrence in this court. I have also had the advantage of observing you in the course of the trial where you were acquitted by the jury.
24Your partner, Ms Timms, has been in court with you on each occasion.
Ms Timms is pregnant with your child who is due to be born next month.
I accept that for the last 12 months since you were last released from prison, you have kept out of trouble and stayed away from your previous circle of drug users. You have done this with the support of Ms Timms, and by your own resolve to break the revolving door pattern that has become your life to date.25I have noted the contents of clinical psychologist Ms Susan Carey's report, dated 20 December 2018. That was Exhibit “2” on the plea. Ms Carey assesses you as lower average intelligence. She notes your slow processing speed may be due to your anxiety. Ms Carey stated you have a mild acquired brain injury based on your history to her.
26Your current medications are Pristiq, Methadone, Amoxycillin, which is a medication you have to take for life due to your spleen being removed, and Valium, which has in the past been used to ameliorate the symptoms of your methamphetamine use.
27You have a 12-year-old son who lives with your former partner's parents in Alexandra. You have intermittent contact in custody and attendance with him. You live with Ms Timms and her son from a previous relationship. You stated you have a good relationship with Ms Timms' son, and I accept that to be the case.
Sentencing Considerations
28The basic purpose for which a court may impose a sentence are just punishment, deterrence, both specific and general, rehabilitation, denunciation of your actions, and the protection of the community. In sentencing you, I must have regard to a range of factors such as the seriousness of your offending, your culpability for it, and your personal circumstances.
29I am also required to balance the interests of the community in denouncing your criminal conduct with the interests of the community in seeking to ensure, as far as possible, that you as an offender are rehabilitated and reintegrated into society.
30I am also required to take into account the current sentencing practices in fixing your sentence. That enquiry is directed particularly but not exhaustively to the kinds of sentences imposed in comparable cases and the statistics for those sentences at that time.
31I have considered the statistics and current sentencing practices, mindful that each case must be considered in light of its own particular circumstances, and many of the cases would be distinguishable from your case as indeed they are from one another. However, current sentencing practices is just one of the factors I have to take into account.
32I am mindful of the provisions of the Sentencing Act, and in particular, s.54C which directs a sentencing court to consider whether a community corrections order can achieve the purpose for which this sentence is to be imposed.
33I have reviewed the case of Boulton in considering if a community corrections order would be appropriate in your case, and I have had you assessed for a community corrections order, as you know. You have been assessed as being suitable. I note in the report that they regard you as a very high risk of reoffending. The prosecution agreed it was appropriate to have you assessed for a community corrections order.
34That is not the end of the matter, however. I have to consider a number of other matters. You have pleaded guilty to this charge. Your plea of guilty was indicated at the commencement of the trial that I referred to earlier. Your plea does have the utilitarian value of allowing for the orderly and effective administration of justice.
35There is a certainty of outcome and a resolution of the substantive issues raised by your offending. Your plea allows for the preservation of court and police resources to deal with other matters, and your plea vindicates the public confidence in the legal process set up to protect the community.
36Your plea is also a clear acknowledgement by you that you accept responsibility for your criminal behaviour on this occasion. Your plea also recognises you are willing to facilitate the course of justice in the community, and I accept that your plea to these two charges indicates and demonstrates remorse on your behalf. I have noted that you told Ms Lechner of your involvement in this crime in April 2018.
37I regard your prospects of rehabilitation as guarded. You have given evidence that you realised during your last lengthy sentence that you did not want to live like this, and that you realised all the people that you had offended against, and how it affects them. For the purpose of this sentencing process, I accept you might be showing signs of insight into the causes of your offending, and what you can do about those matters. You have been drug-free for nearly one year.
38You have served approximately 14 months' imprisonment since these offences were committed. The principle of totality applies in your case, because any opportunity to have part concurrency for this sentence here in this matter has been denied to you. The protection of the community will be best achieved if you can be encouraged to stay on the path of a law-abiding citizen.
39You have not been charged with any offending in the past year, and have shown positive signs of rehabilitation. The protective factor of a strong and supportive partner, Ms Timms, is only one element of the change in your circumstances. The other change is that you just might, at the ripe old age of 35, have to step up and do your share of dealing with your drug addiction.
40The offending of attempted burglary is a serious offence. You have a long history of dishonesty offences. In this instance, your drug-affected state has left you with no success in your offending, and you have left your fingerprints behind for the investigators to track you down. The premises was a commercial premises of an orthodontist.
41I find that the best way to satisfy the principles of general and specific deterrence and just punishment, denunciation of your actions, and the protection of the community, is to place you in a fixed pattern of rehabilitation with some punishment element in the form of unpaid community work.
42Would you stand, please?
43OFFENDER: Yes.
44On Charge 1, you are convicted and placed on a community corrections order for two years with the following conditions. That you will do 200 hours of unpaid community work. That you be supervised. That you submit to treatment and drug rehabilitation, medical treatment, and mental health.
45OFFENDER: Yes, Your Honour.
46HIS HONOUR: That 50 of those 200 hours can be credited to your treatment rehabilitation time that you spend.
47OFFENDER: Yep.
48HIS HONOUR: Otherwise, you have to do the whole 200 hours. And finally, you are to be judicially monitored, and your first judicial monitoring will be - that means, you will come back here - on 10 October at 9.30 am, and I will see how you are going.
49OFFENDER: Yes, Your Honour.
50HIS HONOUR: You have to report to the Ringwood community corrections centre, which is no doubt a place you know, at 3 Bond Street, Ringwood.
And you have to do that before 4 pm on 27 June 2019. That completes that charge.51On the charge of carrying a controlled weapon without a lawful excuse, you are convicted and sentenced to three days' imprisonment. I order that you have served three days of pre-sentence detention, and that you are to be released forthwith in respect of that matter.
52That finishes the sentencing process, Mr Prendergast.
53OFFENDER: Thanks, Your Honour.
54HIS HONOUR: It is over to you.
55OFFENDER: Yep.
56HIS HONOUR: You were sitting there in the witness box and you understand, if you breach this community corrections order, what is going to happen.
57OFFENDER: Exactly right. Yep. Thanks, Your Honour.
58HIS HONOUR: And so you have got to 'man up', so to speak, and support your partner. She is about to have another baby.
59OFFENDER: Yep.
60HIS HONOUR: Life is going to change for both of you very quickly. You will go from having one child to man-on-man defence.
61OFFENDER: Yes, that's right. Thanks, Your Honour. Thanks very much.
62HIS HONOUR: All right. Feel free to step out of there once you sign this community corrections order.
63OFFENDER: Yep. Okay. Thank you.
64HIS HONOUR: I do not think I have declared a s.6AAA.
65MR WILLIAMS: No, you haven't, Your Honour.
66HIS HONOUR: I do not have to with a CCO, do I?
67COUNSEL: No.
68HIS HONOUR: Thank you. I will just have that order copied, Mr Prendergast, a couple of times so that you have a copy for yourself. You can stick it up on the inside of your wardrobe cupboard, so every time you open your wardrobe to get dressed you will have a reminder.
69OFFENDER: Yes, Your Honour. Thank you. I think I might - it might be better (indistinct words.)
70HIS HONOUR: No, no. You are the one that has got to keep it.
71OFFENDER: Yeah, I know. I know. Yes, yes.
72HIS HONOUR: You are the one that has got to deal with this. Not her.
All right?73OFFENDER: I know, I know.
74HIS HONOUR: You can step out of there.
75OFFENDER: All right. Thanks, Your Honour.
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