Director of Public Prosecutions v Shanks
[2019] VCC 1751
•29 October 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-16-01525
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TYLIN ZACHARY SHANKS |
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JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 May 2019, 22 August 2019, 2 October 2019 and 24 October 2019 | |
DATE OF SENTENCE: | 29 October 2019 | |
CASE MAY BE CITED AS: | DPP v Shanks | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1751 | |
REASONS FOR SENTENCE
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Subject:RE-SENTENCING ON ONE CHARGE OF AGGRAVATED BURGLARY
Catchwords: Charge of contravention of CCO – multiple instances of failing to comply with CCO – sentence imposed on 20 December 2016 set aside – offender re-sentenced – convicted of one charge of aggravated burglary and ordered to serve a term of imprisonment of 30 months with a non-parole period of 18 months. Section 6AAA declaration: 4 years’ imprisonment with a non-parole period of 3 years.
Legislation Cited:
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr John Goetz | Solicitor for the Office of Public Prosecutions |
| For the Offender | Ms Kate Ballard | Victoria Legal Aid |
HER HONOUR:
1 Tylin Zachary Shanks, you have pleaded guilty to one charge of contravention of a Community Correction Order, which was part of a combination sentence of imprisonment and a Community Correction Order imposed by me on 20 December 2016 for the offence of aggravated burglary. The maximum penalty for the contravention of a Community Correction Order is 3 months’ imprisonment.
2 Unhappily, after serving a total effective sentence of 15 months’ imprisonment for the aggravated burglary and other offences of theft and recklessly causing injury, you have failed to engage with the Community Correction Order. Proceedings for contravention of that order first came before me on 28 May 2019.
3 A report from Frankston Community Correctional Services, dated 21 February 2019 (Exhibit “A”), concluded that, generally speaking, your compliance with the Order had been poor. You had accrued 27 unacceptable absences from conditions, completed only 24 of 300 hours of unpaid community work, and had been found guilty of further offending. On 15 January 2019, you had appeared at Frankston Magistrates’ Court, where you were convicted of sexual exposure in a public place, and were fined $1,200.[1]
[1]The circumstances of the offending were tendered on the plea as Exhibit “E”
4 Your attitude was described in the report as having been abusive and aggressive at times, albeit that you had attended a drug assessment on 13 February 2019 and had also attended your case manager on 25 occasions, suggesting some motivation to address your offending behaviour. In light of these factors, I indicated that I would give you another opportunity to comply with the Order. I stated that I was happy to suspend the unpaid community work component for the time being and gave you an opportunity to focus on attending supervision appointments and address your mental health issues, particularly anxiety and anger management, and the need for vocational assistance. Accordingly, the matter was adjourned until 22 August 2019.
5 At the request of your legal representatives the matter was administratively adjourned from 22 August 2019 to enable information to be obtained about your mental health. Thus, the matter was adjourned to 2 October 2019, but was further administratively adjourned until 24 October 2019.
6 Disappointingly, reports from the Office of Corrections, dated 25 July 2019 (Exhibit “B”) and 6 August 2019 (Exhibit “C”), demonstrate a failure of progress with the Order. There was ongoing failure by you to regularly attend supervision appointments and what appeared to be a lack of motivation to engage with drug counselling. Although you ultimately obtained a referral for a Mental Health Plan from your practitioner in order to deal with anxiety, there was a lack of clarity about the extent to which you had engaged in any counselling. A referral to an Employment Pathways Support Program was completed on 8 July 2010, but no progress in relation to this took place due to your disengagement. Unfortunately, any further attempts to engage with the Order were brought to an end by you being remanded in custody on 23 July 2019 on charges of assaulting police and resisting arrest, which are due for a contest mention at Frankston Magistrates’ Court on 27 November 2019. Thus, there has been no contact by you with Community Correctional Services since 8 July 2019.
7 At the contravention hearing on 24 October 2019, Ms Emma Christie, who had been your case officer since 28 May 2018, at Frankston, noted that the supervision of your Order had been transferred to South Melbourne, as you changed address to there. Unhappily, you continued to use cannabis and Ms Christie stated that there had been no progress with your drug treatment, the number of unpaid community work hours remained at 24 and you had failed to attend supervision appointments on five occasions since you were last before me.
8 Ms Ballard, who appeared on your behalf at the contravention hearing, noted that you continued to be supported by your aunt, Ms Kassandra Rixon, but had not been living with her since you moved to South Melbourne, where you were residing with one of Ms Rixon’s friends.
9 Ms Ballard tendered a report from Dr Aaron Cunningham, forensic psychologist, who had assessed you at the Metropolitan Remand Centre on 8 October 2019. In his report dated 22 October 2019 (Exhibit 1), Dr Cunningham noted your disadvantaged background, with which the Court was familiar, and to which I had referred in my sentencing remarks on 20 December 2016. Dr Cunningham noted your history of cannabis use from age 11 to 12, and of methylamphetamine from your late teens, together with a history of some periods of psychosis. He conducted a psychometric assessment and noted that although you had a full-scale IQ of 87, with overall thinking and reasoning skills, which were average, and had significant strength in non-verbal reasoning and memory within the average range, you had significant weaknesses in verbal reasoning and impairments in processing speed. He considered that this profile was consistent with a Neurodevelopmental Disorder and noted that it had been shown in individuals with Autism Spectrum Disorder.
10 Mr Cunningham considered that your drug abuse was the main contributor to your offending. He noted prior episodes of major depression, involving suicidal and self-harming behaviour, and thought you would benefit from mental health support for this and your Neurodevelopmental Disorder. He considered that your accommodation at the South Melbourne commission flats, where you were surrounded by drug use and criminal behaviour, put you in a high risk situation.
11 Mr Shanks, I acknowledge the ongoing adverse effects of a traumatic childhood, and what would appear to be a presentation consistent with an underlying Neurodevelopmental Disorder, with distressing symptoms affecting your sleep and mood, and the fact that you have suffered social anxiety and self-harmed, and appear to regularly feel overwhelmed, and have difficulty regulating your emotional state. Unhappily, these sorts of things were sought to be addressed by having you engage with support services by way of mental health treatment and drug counselling, but you simply have not shown the motivation or wherewithal to help yourself, and the Court can no longer tolerate persistent breaches of a Community Correction Order, which commenced on 28 September 2017, over two years ago. Unfortunately, you have not utilised the multiple opportunities which I have given you to try to get assistance and I am left with no option but to cancel the Order and re-sentence you on the offence of aggravated burglary.
12 In sentencing you, I take into account that you have pleaded guilty to the offence of contravening the Community Correction Order. I also take into account the extent to which you did comply with the Order and the fact that you are still relatively young, 27 years of age. It may be that further time in custody where you abstain from taking illicit drugs will assist you, but, ultimately, you are the only person who can try to turn your life around. As I have mentioned, in the past, you clearly had strengths which enabled you to hold down work and, against the odds, received a community award some years ago. You also have the ongoing support of your aunt, Ms Rixon.
13 Pursuant to section 18 of the Sentencing Act, the 12 months which you have already served on the sentence for aggravated burglary will be declared as time already served under the sentence which I intend to impose. In applying the principle of totality, I have taken into account further time you have spent in custody since 23 July 2019 (98 days) in arriving at the sentence I intend to impose today. In a general way, I have also taken into account as part of your personal circumstances that you served an additional 3 months in custody relating to the other offences for which I sentenced you on 20 December 2016 and the fact that you are still suffering anxiety in custody. It is desirable that you get assistance for this, as it is likely to make serving your term of imprisonment more burdensome.
14 The sentence imposed on one charge of aggravated burglary on 20 December 2016 is set aside. In its stead, you are convicted and sentenced to serve a term of imprisonment of 30 months.
I order that you serve a period of 18 months before becoming eligible for parole.
I declare a period of 12 months already served under the original sentence imposed to be time reckoned as already served under the sentence imposed this day.
Pursuant to s6AAA, I state that, had it not been for your plea of guilty to the charge of aggravated burglary, the total effective sentence would have been 4 years’ imprisonment, with a non-parole period of 3 years.
15 On the charge of Contravening a Community Correction Order, I find the charge proven, but make no further order.
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