Director of Public Prosecutions v Robertson-Ainsworth
[2021] VCC 1274
•2 September 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 21-00809
CR 21-00810
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| NATHAN ROBERTSON-AINSWORTH SARAH THOMPSON |
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JUDGE: | HIS HONOUR JUDGE CARMODY |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 30 August 2021 |
DATE OF SENTENCE: | 2 September 2021 |
CASE MAY BE CITED AS: | DPP v Robertson-Ainsworth & Anor |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1274 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – Sentence
Catchwords: Aggravated burglary – theft – drug-fuelled offending
Legislation Cited: Criminal Procedure Act 2009; s145
Cases Cited: Worboyes v The Queen [2021] VSCA 169, Verdins; Buckley; Vo (2007) 16 VR 269
Sentence: Robertson-Ainsworth: Total effective sentence is four years’ and seven months’ imprisonment with a non-parole period of two years and 10 months’ imprisonment.
Thompson: Total effective sentence is four years’ and four months’ imprisonment with a non-parole period of two years’ and nine months’ imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J. O'Toole | Director of Public Prosecutions |
For Accused Robertson-Ainsworth | Mr C. Edwards | Valos Black & Associates |
For Accused Thompson | Mr A. Purcell | Valos Black & Associates |
HIS HONOUR:
1On 30 August 2021 at the County Court in Melbourne, Nathan Lucas Robertson-Ainsworth and Sarah Victoria Thompson, you have each pleaded guilty to the following charges on Indictment C2013360:
2Charge 2, aggravated burglary; this offence has a maximum penalty of 25 years' imprisonment.
3Charge 3, theft of a motorcar and a set of wheel rims; this offence has a maximum penalty of 10 years' imprisonment.
4Charge 4, theft of a mobile phone belonging to Kristen Windsor; this offence has a maximum penalty of 10 year's imprisonment.
5Charge 5, theft of a mobile phone belonging to Benjamin Barnes; this offence has a maximum penalty of 10 years' imprisonment
6Charge 6, theft of a mobile phone belonging to Justin Foot; this offence has a maximum penalty of 10 years' imprisonment.
7And Charge 7, theft of petrol from the Caltex foodery in Horsham; this offence has a maximum penalty of 10 years' imprisonment.
8Mr Robertson-Ainsworth, you are also charged with and pleaded guilty to the following offences, which was Charge 1 on the indictment, which was theft of petrol at Preston, that charge also has a maximum penalty of 10 years' imprisonment.
9Mr Robertson-Ainsworth, you had also consented to the following related summary charges being heard at the proceeding pursuant to s145 of the Criminal Procedure Act, you pleaded guilty to the following summary charges:
Detective Senior Constable RICHARDSON
10Summary Charge 4, was unlawful assault of Justin Foot; that charge has a maximum penalty of three months' imprisonment.
11Summary Charge 8, commit indictable offence whilst on bail; this charge has a maximum penalty of three months' imprisonment.
12Summary Charge 12, this is driving whilst disqualified over a period of time between 18 January 2020 and 8 February 2020 at various places, including Preston, Horsham and Warrnambool; this charge has a maximum penalty of two years' imprisonment.
Leading Senior Constable BARKER
13Summary Charge 2 was refusing to provide an oral sample; this charge has a maximum penalty of 12 penalty units;
14Summary Charge 3, using an unregistered motor vehicle; this charge has a maximum penalty of 50 penalty units;
15Summary Charge 4, not having appropriate number plates affixed to the vehicle; this charge has a maximum penalty of two penalty units and;
16Summary Charge 5, is stating a false name and address; this has a maximum of one months or five penalty units.
17Mr Robertson-Ainsworth, you have admitted your criminal history; I will address those matters in your personal circumstances. Similarly, Ms Thompson, you have admitted your criminal history; I will address those matters in your personal circumstances of the sentence.
Circumstances of the offending
18The prosecutor tendered a summary of prosecution opening dated 24 August 2021, this was Exhibit “A” on the plea. In respect of Charges 2, 3, 4, 5, and 6 on the indictment, the background of these offences is an unpaid drug debt.
19Mark Taylor and Kristen Windsor lived on Mary Street, Horsham.
Mr Robertson-Ainsworth and Sarah Thompson were in a relationship, but they lived in Kingsbury. Mr Robertson-Ainsworth and Ms Thompson went to Horsham to collect the money for what was said to be a drug debt.20On 7 February 2020, there were three text messages from Robertson-Ainsworth to Taylor, warning Taylor that he was coming to collect $2000 for the drug debt.
21On 8 February 2020, upon arrival in Horsham at approximately 5.15 am, Mr Robertson-Ainsworth had stopped in at the Caltex service station and filled up the Mitsubishi Lancer with fuel, which valued at $50.34. Ms Thompson was seated in the passenger seat, and the two of you drove away from the service station without paying. That is Charge 7 on the indictment, theft of petrol.
22At approximately 6.10 am, Mr Robertson-Ainsworth, Ms Thompson, and a third unidentified male have travelled to Mr Taylor’s residence. They have parked the Mitsubishi Lancer opposite the house. The address is a single-storey residential dwelling with timber cladding and aluminium sliding windows.
23Mr Robertson-Ainsworth, Ms Thompson, and this third unidentified male have approached the front door of the house with the intention of stealing items of value in order to satisfy the alleged drug debt. At the time Robertson-Ainsworth was in the possession of a metal pole which was approximately 70 centimetres in length and 3 centimetres in diameter, and Ms Thompson was in possession of a knife which was approximately 25 centimetres in length.
24At the time, Mr Taylor and Ms Windsor were at the house. Also visiting the house at that time were Justin Foot and Benjamin Barnes. All of them were seated in the lounge room of the property, at which time they heard a person attempting to unlock the front door of the house from the outside. At this time, one of the accused that is you, Ms Thompson, you had admitted to kicking the door open, breaking it off its hinges. The three of you have entered the victim's residence (Charge 2 on the indictment - Aggravated Burglary).
25Mr Robertson-Ainsworth, Ms Thompson and the unidentified male have then forced their way past the broken door, into the lounge room of the building, where Robertson-Ainsworth began yelling at the people present and threatening them with the metal pole. Mr Robertson-Ainsworth demanded that the people present hand over their mobile phones to Ms Thompson, which Ms Windsor, Mr Foot, and Mr Barnes complied with. The phones were collected and kept in the possession of Ms Thompson.
26Mr Robertson-Ainsworth then demanded the keys to Taylor's vehicle, being a Holden Commodore, which was parked in the driveway of the property.
Mr Taylor complied with that demand.27At this time, Mr Robertson-Ainsworth took Mr Foot outside as he was unable to get Taylor's car started, whilst Ms Thompson remained in the lounge room with Mr Taylor, Ms Windows, and Mr Barnes, brandishing her knife. Mr Foot then assisted in getting the Holden Commodore started by removing the battery from the Mitsubishi Lancer and placing it in the Holden Commodore to get the Commodore started, before then returning the battery to the Mitsubishi Lancer.
28Whilst at the address, Mr Robertson-Ainsworth and Ms Thompson stole 20-inch mag wheels that belonged to Mr Taylor. Those wheels had been located in the rear garden shed and had been carried through the house by Mr Robertson-Ainsworth and the unidentified male offender.
29Whilst at the residence, Mr Robertson-Ainsworth also stole a black Toshiba hard drive from a shelving unit in the lounge room, together with Mr Taylor's licence, Commonwealth Bank debit card, and Centrelink card.
30During the whole incident, Mr Foot requested for the accused, that is the two of you, to return his SIM card for his mobile phone. This request angered
Mr Robertson-Ainsworth, who struck Mr Foot on the right leg with the metal pole, causing pain and breaking Mr Foot's skin. This is Summary Charge 4, the unlawful assault which is only against Mr Robertson-Ainsworth.31The whole incident lasted for approximately 20 minutes. Before leaving with the stolen items, Mr Robertson-Ainsworth threatened the victims that if they reported the matter to police, he would come back for them.
32The items stolen from the property was the following:
a)Mr Taylor's Holden Commodore, four 20-inch mag rims, a hard drive, together with Mr Taylor's licence, bank card, and Centrelink, that is Charge 3 on the indictment against the two of you;
b)Ms Windsor's OPPO mobile phone, which is Charge 4 on the indictment against the two of you;
c)Mr Barnes' Apple iPhone X, which is Charge 5 on the indictment against the two of you, and
d)Mr Foot’s Apple iPhone, which is Charge 6 on the indictment against the two of you.
33At the time of this offending Mr Robertson-Ainsworth was on bail for other offences from the Melbourne Magistrates' Court on 3 October 2019, that is the basis for Summary Charge 8 on the offending.
34Mr Robertson-Ainsworth and Ms Thompson left Mary Street, Horsham, in the Holden Commodore. The Commodore had some mechanical problems and Mr Robertson-Ainsworth and the unidentified male have then walked to the BP service station located on McPherson Street and O'Callaghan Parade, Horsham, where they purchased a fuel container and some petrol before returning to the Commodore.
35The two of you, that is Ms Thompson and Mr Robertson-Ainsworth have continued to drive towards Melbourne, stopping at the BP service station in Longfield Street, Stawell, to purchase some more fuel before continuing on to Melbourne.
36Mr Robertson-Ainsworth and Ms Thompson have then driven to Warrnambool, taking both he Holden Commodore and the Mitsubishi Lancer, where they arrived at approximately lunchtime, and have driven to the residence of a friend, Stella Foster. The two of you have then left the Mitsubishi Lancer there, together with four mag wheels in Foster's garage, stating that you would return to collect them.
37At approximately 5.20 pm that same day, Mr Robertson-Ainsworth was driving the Holden Commodore, travelling east on Merri Street, Warrnambool, when he was intercepted by police, a Senior Constable Barker. Ms Thompson was travelling with Mr Robertson-Ainsworth in the passenger seat of the vehicle. At the time of the interception by police, Mr Robertson-Ainsworth was disqualified from driving in the State of Victoria (This is a rolled-up charge of Summary Charge 14 into summary Charge 12, driving whilst disqualified).
38The Holden Commodore was not registered (Summary Charge 3). The number plates on the Commodore had been altered and/or were not appropriate (Summary Charge 4). You, Mr Robertson-Ainsworth was taken back to the Warrnambool police station, where you refused to provide a sample for the oral fluid test (Summary Charge 2).
39On 18 January 2020, Mr Robertson Ainsworth was observed on CCTV driving a silver coloured Mitsubishi Lancer sedan, registered number UFV 506, and arrived at a BP service station located at 408 Bell Street, Preston.
40Whilst there, Mr Robertson-Ainsworth filled the Mitsubishi lancer with $60.02 worth of petrol and then drove away without paying. That is Charge 1 on the indictment of theft, which is only against Mr Robertson-Ainsworth. Again, at that time, you were disqualified from driving and that is part of Summary Charge 12.
Records of Interview
41After the two of you were arrested in Warrnambool, you were taken to the Warrnambool police station and interviewed by police. Mr Robertson-Ainsworth participated in a record of interview, where you stated the following:
·You had purchased the Holden Commodore from a friend who lives across the road from you, for the sum of $2000.
·You admitted that Mr Taylor had owed you $1500.
·You denied being aggressive and kicking the door in, stating the door was already kicked in.
·You admitted to taking the mobile phones in order to sell them.
·You denied carrying a weapon.
·You had said that there was no argument, and the victims handed the property over to you voluntarily and;
·You denied you and Ms Thompson were in possession of any weapons, and denied a third offender being involved.
42Ms Thompson, when you were interviewed by police, you stated as follows:
·Mr Taylor gave you and Mr Robertson-Ainsworth the Holden Commodore in lieu of payment.
·Mr Taylor owed you money because you had previously brought ice from Melbourne to Horsham.
·You admitted to taking all of the mobile phones.
·You admitted to kicking in the front door to the victim's address but then denied being armed with the knife.
·You knew that there were people inside the house because you could see them through the blinds before you entered the house.
·You admitted taking Mr Taylor's personal cards and throwing them out the window later on in the evening.
43You were both remanded in custody and have been in custody since that day. Ms Thompson, you have served a total of 572 days pre-sentence detention referable to the six charges for which you are to be sentenced here today.
44Mr Robertson-Ainsworth, you have served 452 days pre-sentence detention in relation to the charges before this court for which you are to be sentenced today. I note that you have served a sentence for other offending since your arrest for these matters. In effect, you have been in custody of the same period of time, 572 days, in a continuous manner.
Personal circumstances
Nathan Robertson-Ainsworth
45I will deal with you separately. First of all, Mr Robertson-Ainsworth. You are now 28 years of age; you have experienced a difficult early life. Your father left your mother when you were three years old.
46Your mother re-partnered, and this man became your stepfather. Your mother and you experienced serious violent attacks from your stepfather. On occasion, your mother had received treatment at hospital as a result of your stepfather's violence. Your stepfather worked as a truck driver and this meant that your family, as three people, moved around a great deal.
47When you were in your early teenage years, your mother was incarcerated. For that period of time, you were homeless and living in the streets and, effectively, couch-surfing. You are illiterate. You report that you left school at Year 9; however, the real picture of your education level is less impressive. You repeated Year 4, and in Years 4 and 5 at school, you were bullied, as you were small for your age at that time. You were expelled from school because you urinated on the headmaster's leg, as I understand it. This event occurred after you had been refused permission to go to the toilet.
48In 2015, you were diagnosed as being schizophrenic. You have been treated for this condition since that time. You have been under the orders of the Mental Health Tribunal twice in 2016, once in 2017, and again once in 2019. Indeed, you met your co-accused in the psychiatric unit at the Northern Hospital in the months prior to this offending.
49You have been assessed by Dr Gunvant Patel, a psychiatrist, for the purposes of this plea. His report is dated 23 August 2021 and is Exhibit “R1” in this proceeding. Dr Patel records your current medication regime as 30 milligram daily of aripiprazole, which is an antipsychotic drug, sodium valproate, 1000 milligrams, which is a mood stabiliser, and benztropine, 2 milligrams twice a day to assist with the prevention of the muscle spasms, stiffness, and tremor as side-effects of the antipsychotic medications you take. He assessed your intelligence to be in the borderline to low average range.
50Dr Patel's diagnoses as long-term mental disorder of schizophrenia. He notes, the mental conditions affect your ability to make decisions. Dr Patel noted the offending history of you coincides with your mental illness, that is from 2015 and onwards. Dr Patel recommends a high level of structured support for you upon your release into the community. The recommendation also includes engagement with an Aboriginal support worker in the Horsham area, if that is where you go to live. Dr Patel assessed you as showing remorse on his assessment.
51You have been able to obtain and retain employment after leaving school. Your work is a manual hands-on type work which you can learn on the job. You have worked as a dump truck driver in a quarry at Wonthaggi, all roles on a dairy farm at Dalston, including milking cows, mowing and slashing grass, welding, and general jack-of-all-trades work required of you on a farm.
52In 2018, your mother, Deborah Thies, was involved in a serious motor accident. Family members died in that accident. Your mother was, subsequent to that accident, diagnosed with brain cancer in the same year. She is currently in palliative care. Your mother now lives in Horsham, and that is confirmed by the material in Exhibit “R3”.
53You have a prior criminal history for offending in New South Wales and Queensland between 2011 and 2014. These matters are minor dishonesty charges and numerous driving charges. Your more serious criminal history commenced in 2016 in Victoria. There are charges of theft of motor car, criminal damage, recklessly cause injury, theft, and driving related charges. Your criminal history is relevant to this current offending.
54You have a long-term history of drug use, including alcohol, cannabis, and ice. You recognise drugs adversely affect your mental state.
55You have completed courses whilst you have been on remand in prison. You have been in St Paul's Unit at Port Phillip Prison for the whole of your time in custody. You are a laundry and kitchen billet. You are awaiting for an NDIS application to be completed to assist you when you are released into the community.
Sarah Thompson
56Ms Thompson, I will now deal with your personal circumstances. You are now 32 years of age. You have one brother. Both of your parents are alive but due to your incarceration on this occasion, you are now estranged from your family, including your brother.
57You describe your upbringing as stable and a loving family. You described your mother as being a person of stern demeanour. You enjoyed a stable education pattern until Year 9, when you started playing up, as you described it to
Ms Cokorillo.58You completed Year 11 by distance education. You have had approximately 15 jobs in retail and administrative assistance type roles over the time. Most employments were for short periods. Your longest stay at any one job was for a period of two years.
59You have had three significant relationships. During the period of your first relationship, you were charged and convicted and sentenced for importing methylamphetamines. This activity as a drug mule almost cost you your life because the ingested drugs burst from the rubber pallets that they were contained in, and you ended up in the emergency department of the hospital as a result of it. Your life was saved, but in September 2009, you were sentenced to 12 months' imprisonment and a Commonwealth Crimes Act good behaviour bond was imposed upon you. At that time, you were 20 years of age.
60You came out of gaol and remained in your abusive relationship with Sam, as he is being called in the reports, until you were approximately 23 years of age. Your next partner was James, who you described as your best friend. You have a child with James, and she is a five-year-old daughter. At the moment, James looks after your daughter in a single-parent role. Your hope is to re-engage with your daughter.
61Your final relationship was with the co-accused, Mr Robertson-Ainsworth, in these matters. You met him when you admitted yourself to the psychiatric unit at the Northern Hospital. You went there because of suicidal ideation, which has been a long-term problem for you. Your psychiatric problems date back to when you were 14 years of age, with suicidal ideation and dysfunctional behaviour. You have used cannabis, ecstasy, and methylamphetamine over the time.
62In 2002, you were aged 14 years, and was diagnosed with Bipolar Disorder. You have subsequently been diagnosed as suffering from PTSD, borderline personality disorder. Your psychiatrist, Dr Jackson, prescribes sertaline, which is an antidepressant, lamotrigine, which is mood a stabiliser and, quetiapine and prazosin for nightmares. Dr Cokorillo, whose report is dated 16 August 2021 is Exhibit “T1” in this plea, confirms the above diagnosis and also says that you suffer from a generalised anxiety disorder and dependent personality disorder.
63Dr Victoria Jackson, a forensic psychiatrist, confirms that the medications you were taking in custody are the same as those outlined by Dr Cokorillo in her report. Dr Jackson recommends psychological counselling sessions to continue, and that is part of Exhibit “T3”. Your general practitioner Dr Adam Wade's report, which is dated 5 April 2020, confirms your medical history in relation to medical and psychiatric treatment, that is Exhibit “T2”. The report from Kirsty Moss, which is dated 27 August 2021, Exhibit “T4” in the plea, confirms that Women's Housing Ltd is assisting you with housing options upon your release from prison.
64Ms Cokorillo, in her report, assesses you as a moderate risk of reoffending due to your drug use and your prior criminal history.
Sentencing considerations
65I will deal with the sentencing considerations in respect of both of you and then I will descend to individual sentencing considerations.
66The basic purpose for which a court may impose a sentence are just punishment, deterrence both specific and general, rehabilitation, and denunciation of your actions and the protection of the community. In sentencing you, I must have regard to the range of factors, such as the seriousness of your offending, your culpability for it and your personal circumstances.
67I am also required to balance the interest of the community in denouncing your criminal conduct with the interest of the community in seeking to ensure, as far as possible, that you, as offenders, are rehabilitated and reintegrated into society.
68I am also required to take into account current sentencing practices in fixing your sentences. That enquiry is directed particularly, but not exhaustively, to the kinds of sentences imposed in comparable cases and the statistics for those sentences at the time. I have considered the statistics and current sentencing practices, mindful that each case must be considered in the light of its own particular circumstances, and many of the cases would be distinguishable from both your cases, indeed as they from one another.
69Of course, current sentencing practices are but one of the factors I am required to take into account when fixing a just sentence for both of your offending. You have each pleaded guilty to these charges.
70In my assessment, the plea of guilty was indicated at a relatively early stage. Your plea does have the utilitarian value of allowing for the orderly and effective administration of justice. There is a certainty of outcome and a resolution of the substantive issues raised by both of your offending. Your plea allows for the preservation of court and police resources to deal with other matters, and your plea indicates the public confidence in the legal process set up to protect the community.
71Your pleas are also a clear acknowledgement by the both of you, that you both accept the responsibility for your criminal behaviour on this occasion, and your pleas also recognises you are both willing to facilitate the course of justice in the community, and I accept that your pleas of guilty to these charges, indicates and demonstrates remorse on the part of each of you.
72Your plea of guilty also avoids the needs for the victims of your criminality to relive the experience of giving evidence at a trial. I appreciate that witnesses were cross-examined at a committal, but that has allowed for the resolution of this matter ultimately.
73The Court of Appeal in Worboyes[1] set out a number of considerations that were particular to a plea of guilty to charges in the course of the COVID-19 pandemic, and then stated the following:
'For these reasons, we consider that — all other things being equal — a plea of guilty entered during the currency of the COVID-19 pandemic is worthy of greater weight in mitigation than a similar plea entered at a time when the community and the courts are not afflicted by the pandemic's effects. A plea of guilty during the pandemic ordinarily should attract a more pronounced amelioration of sentence than at another time. Although a sentencing judge need not quantify the extent of any "discount", he or she must ensure that the plea of guilty results in a perceptible amelioration of sentence.'
[1]Worboyes v The Queen [2021] VSCA 169
74This is the ‘Worboyes discount’ referred to by each counsel in this case.
75There has been also a long delay between the resolution of these charges. The delay has not necessarily been by either of your conduct of these proceedings. The benefit of the committal hearing, has I have said earlier, was that to narrow the issues between the parties, leading to the plea of guilty before this court. The fact that both of you have had the charges hanging over your head for such a long time is an unfairness which requires some degree of compensation in the sentencing process.
76The most serious charge in this offending is Charge 3, the aggravated burglary. Aggravated burglary is a very serious offences, and Parliament has set a 25 year maximum sentence for it. It is the experience of courts that the offence of aggravated burglary is frequently tied to the drug offending. That is the case here, where both of you commit this offence to 'recover a drug debt'.
77The seriousness of the offending of the aggravated burglary by the both of you is indicated by the following factors:
a)your intention was to recover money or property to satisfy the debts when you both entered the property;
b)you forced entry to the property by kicking the door in;
c)you were in the company of one another and an unidentified co-offender;
d)the offence occurred at the very early hours of the morning, approximately 6 am;
e)you both knew that at least Mr Taylor and Ms Windsor was inside the premises when you entered;
f)when you entered the premises, each of you had a weapon, Mr Robertson-Ainsworth, you had a metal pole, Ms Thompson, you had a knife; and,
g)each of you had a clear intention to recover money or value by going into that premises.
78The surrounding circumstances of the theft of the motor car are unusual. Occupants of the home, Mr Foot, assisted in the starting of the car so you could drive it away. The theft of the phones from the people present was, on my assessment, an opportunistic form of offending.
79I will now deal with your individual sentencing considerations.
Nathan Robertson-Ainsworth
80I will deal with you first. In your case, Mr Robertson-Ainsworth, you were on bail for other offending when you committed these offences. You have served short sentences for dishonesty and violent offending in the past. Most of your criminal history is for driving related offending. In particular, you had only been out of gaol for a period of seven months when you offended on this occasion.
81You are of Aboriginal background through your father, but you have had little contact with him over your life. It is clear you have endured a most dysfunctional disadvantage and traumatic upbringing at the hands of your stepfather, and in the circumstances of your mother's imprisonment when you were a teenager or a young person. That background has compromised your capacity to mature and to learn from experience. The upbringing I refer to is further complicated by your diagnosis for schizophrenia, and an assessment that you are borderline to low average intelligence; you are illiterate.
82In this sentencing process, I assess these factors to lessen your moral culpability for this offending and reduces the assessment that you are an appropriate vehicle for the expression of general deterrence.
83I accept that given your mental health diagnosis your time in custody will be more onerous than a prisoner of normal mental health. At present, you are receiving adequate treatment, but the prison environment is very stressful for prisoners who suffer from mental health conditions that are difficult to control, as is your case. Your sentence is to be reduced appropriately, but also reflected in an opportunity to be granted parole to assist you with your rehabilitation and further treatment.
84Your prospects of rehabilitation are guarded, due to your mental health problems and your relapsing on treatment, and combined with your long-term drug related lifestyle.
85Another matter I need to take into account in your circumstances is the issue of totality, given that only some part of the time you have totally spent in gaol can be attributed as pre-sentence detention in these matters.
86The offending is serious and the only appropriate sentence in your case is a term of imprisonment with a non-parole period. The sentencing principles of deterrence, whilst ameliorated, general and specific, just punishment and denunciation of your criminal actions and the protection of the community dictate that a term of imprisonment is the only appropriate sentence, and that is to be combined with a non-parole period.
87I will announce your sentence after I have completed
Ms Thompson's sentencing considerations.Sarah Thompson
88Ms Thompson, the Verdins[2] principle applies to your sentencing process in the following manner. Your bipolar diagnosis, together with PTSD and depressive illness operate to mitigate your moral culpability for this offending. I accept that your well-documented mental health history and conditions will make your time in custody more onerous than a prisoner of normal mental health.
[2]Verdins; Buckley; Vo (2007) 16 VR 269
89I note that you were placed on a good behaviour undertaking at the Heidelberg Magistrates' Court on 13 May 2019 for a period of 12 months. You have offended in this occasion whilst you were on that undertaking.
90Your criminal history is otherwise limited to one charge of importing methylamphetamine, which was 10 years prior to this offending. The common feature of the 2009 offending and the 2019 offending is the drug culture, of which you are a part. Your mental health diagnosis and intermittent use of drugs are not a good combination. Ms Cokorillo assesses you as a moderate risk of reoffending because of those matters.
91I do not accept that the dependent personality disorder that you have been diagnosed as suffering, was a key role in your offending in this case. You were mutually dependent upon one another, that is you and Mr Robertson-Ainsworth in this venture and your admission to police that some of the money owed by Mr Taylor was in fact owed to you, reinforces that conclusion.
92The sentence to be imposed on you takes into account your moral culpability for those offences you have been charged with and makes allowance for the matters to which I have referred to during the course of these reasons.
93Ultimately, the only appropriate sentence is a term of imprisonment with a non-parole period to satisfy those sentencing principles of general and specific deterrence, although ameliorated, and just punishment, denunciation of your offending, rehabilitation, and protection of the community.
Sentence
94Mr Robertson-Ainsworth, I am sentencing you as follows. I will deal with the indictment charges first and then the related summary charges.
95Charge 1, theft of petrol, you are convicted and fine for $200.
96Charge 2, aggravated burglary, you are convicted and sentenced to four years' imprisonment, that is the base sentence.
97Charge 3, theft of a motorcar, you are convicted and sentenced to six months' imprisonment.
98Charge 4, theft of a mobile phone, you are convicted and sentenced to one month imprisonment.
99Charge 5, theft of a mobile phone, you are convicted and sentenced to one month imprisonment.
100Charge 6, theft of a mobile phone, you are convicted and sentenced to one month imprisonment.
101And Charge 7, theft of petrol, you are convicted and fined $200.
102On the related summary charges, first of all, Summary Charge 4, unlawful assault, you are convicted and sentenced to two months' imprisonment.
103On Summary Charge 8, offending whilst on bail, you are convicted and sentenced to one month imprisonment.
104On the rolled-up charge of driving whilst disqualified, Charge 12, you are convicted and sentenced to three months' imprisonment.
105In respect of Summary Charges 2, 3, 4, and 5, these are the charges of refusing oral sample, unregistered vehicle, no proper number plates on a car, and stating a false name and address, you are convicted and fined an aggregate sum of $500.
106Accumulation of the sentence is as follows: the base sentence is aggravated burglary of four years and is Charge 2, to be cumulated on that and on one another is, three months of the sentence of Charge 3, seven days of the sentence in Charge 4, seven days of the sentence in Charge 5, 14 days of the sentence in Charge 6. In respect of the unlawful assault, summary charge 4, one month of that sentence is to be cumulated. And in respect to the driving while disqualified, two months of that sentence is to be cumulated.
107That is a total effective sentence of four years and seven months. I fix a non-parole period of two years and 10 months.
108Pursuant to s6AAA of the Sentencing Act, but for you plea of guilty, I would have sentenced you to a total of seven years, with a five year non-parole period.
109And I declare that in respect of these sentences, you have served a total of 452 days pre-sentence detention. Also, of course, you have total fines of $900.
110On Summary Charge 2, your licences are cancelled and disqualified for a period of four years. And on Charge 3 on the indictment, all licences are cancelled, and you are disqualified for a period of 12 months.
111Ms Thompson, on the charge of aggravated burglary, that is Charge 2 on the indictment, you are convicted and sentenced to four years' imprisonment, that is the base sentence.
112On Charge 3, theft of a motorcar, you are convicted and sentenced to six months' imprisonment.
113On the charge of theft of a mobile phone, Charge 4, you are convicted and sentenced to one month imprisonment.
114On Charge 5, theft of a mobile phone, you are convicted and sentenced to one moth imprisonment.
115On Charge 6, you are convicted and sentenced to one month imprisonment.
116And on Charge 7, the theft of the petrol, you are convicted and fined $200.
117In terms of the cumulation, the base sentence is Charge 2, four years' imprisonment for aggravated burglary. To that cumulation is as follows, for Charge 3, the theft of the motorcar, three months of that sentence is to be cumulated, seven days of Charge 4 is to be cumulated, seven days of Charge 5 are to be cumulated, and 14 days of Charge 6 are to be cumulated all on one another.
118That is a total of four years and four months. I fix a non-parole period for you of two years and nine months.
119But for your plea of guilty I would have sentenced you to six years, six months, with a four year and six month non-parole period. I declare you have served 572 days pre-sentence detention.
120And on Charge 3 on the indictment, all licences are cancelled, and you are disqualified for a period of 12 months.
121Yes, and there is a forfeiture order - sorry, I forgot to announce that. It relates to both of you, the forfeiture order. And I am just getting that out. Is there anything else?
122MR O'TOOLE: Your Honour, can I just correct that the PSD in respect of both ‑ ‑ ‑
123HIS HONOUR: Correct. Yes, sorry?
124MR O'TOOLE: Yes, Your Honour, it is 452 days ‑ ‑ ‑
125HIS HONOUR: Sorry, for ‑ ‑ ‑
126MR O'TOOLE: Mr Robertson-Ainsworth.
127HIS HONOUR: Yes, sorry. So, sorry, Mr Robertson-Ainsworth, everyday counts.
128MR O'TOOLE: It is an extra day.
129HIS HONOUR: So, I declare it is 452 days, yes.
130MR O'TOOLE: And with respect to Ms Thompson, it is 572.
131HIS HONOUR: Right, thank you - 572, thank you.
132MR O'TOOLE: Yes, Your Honour. I understand that is agreed.
133MR PURCELL: No objection, Your Honour.
134MR O'TOOLE: With respect to that draft, the forfeiture order Your Honour's received now, can I seek Your Honour's leave to delete particular 2 in the schedule?
135HIS HONOUR: Right, I will just ‑ ‑ ‑
136MR O'TOOLE: Which is one of the mobile phones. I understand that mobile phone has been returned.
137HIS HONOUR: Sorry, two ‑ ‑ ‑
138MR O'TOOLE: It is the OPPO mobile phone.
139HIS HONOUR: Right. It is not ‑ ‑ ‑
140MR O'TOOLE: If it has already been removed, I am ‑ ‑ ‑
141HIS HONOUR: Has it? All right, it is not - yes. I was going to say there is no OPPO phone on this one.
142MR O'TOOLE: Thank you, Your Honour. I am grateful. Thank you, Your Honour.
143HIS HONOUR: All right, thank you. I will sign that forfeiture order now. Has counsel checked the cumulations? That is important.
144MR O'TOOLE: No issue from my perspective, Your Honour, with the cumulation orders.
145HIS HONOUR: They are all right?
146MR O'TOOLE: Yes.
147MR EDWARDS: Nor mine, Your Honour.
148MR PURCELL: No, Your Honour.
149HIS HONOUR: All right, good. Thanks. Thanks, counsel, for your assistance. I have only got 10 minutes of the link open; do you want to keep it open so you can speak to your clients on the link? I will see if I can facilitate that.
150MR EDWARDS: I have got some spare time later in the week, so I will speak to Mr Robertson-Ainsworth via telephone and leave the link for Mr Purcell to perhaps speak to Ms Thompson.
151HIS HONOUR: All right, thanks. You have only got 10 minutes, Mr Purcell.
152MR PURCELL: Yes, Your Honour.
153HIS HONOUR: I can tell you that it is just like a guillotine, they just chop it off, as Mr Robertson-Ainsworth found out last time.
154MR PURCELL: Yes, thank you.
155HIS HONOUR: Thanks.
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