Director of Public Prosecutions v Simpson

[2018] VCC 1441

IN THE COUNTY COURT OF VICTORIA	Revised
AT WANGARATTA	Not Restricted
CRIMINAL JURISDICTION	Suitable for Publication

CR-18-01607

DIRECTOR OF PUBLIC PROSECUTIONS

v

JARRED SIMPSON

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JUDGE:	HIS HONOUR JUDGE SACCARDO
WHERE HELD:	Wangaratta
DATE OF HEARING:	31 August 2018
DATE OF SENTENCE:	7 September 2018
CASE MAY BE CITED AS:	DPP v Simpson
MEDIUM NEUTRAL CITATION:	[2018] VCC 1441

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Triandos	Office of Public Prosecutions
For the Accused	Mr G. Clancy	Kerry Clancy Solicitors

HIS HONOUR:

1Mr Simpson, you have pleaded guilty to one count of burglary which carries a maximum period of imprisonment of ten years and one count of attempted theft, the maximum penalty for which in this instance is nine years.

2The circumstances of your offending is set out in the prosecution opening which is an exhibit on the plea, none of which is in issue and it is not necessary for me to summarise that material.

3You have a significant history of prior offending involving numerous counts of dishonesty consisting largely of counts of shop theft which extend back to September 2000.  You have been the subject of eight corrections orders in the past.  You have only completed one such order successfully.  You also have a history of having breached a suspended sentence order.

4There is no issue that you have a long history of abusing alcohol and to some extent other illicit substances.  Notwithstanding the corrections orders upon which you have been placed in the past, you have never undertaken drug or alcohol counselling.

5In the circumstances, it seems to me very little can be said in your favour as to the prospects of rehabilitation other than it should be noted that there has been an absence of significant offending by you since May 2013.  In making that statement, I take into account that you were convicted of an unlawful assault in February 2015 however the offending in that instance must have been relatively minor given that the sentence which was imposed was a matter that was adjourned without conviction.

6Your offending in this instance was serious and it has affected three members of a family.  In a Victim Impact Statement, your victim describes feeling insecure and violated in association with your breaking into the commercial premises.  They talk about the cost they have incurred in repairing the damage done to the premises and the need to upgrade the security.  They speak of the anxiety of two adult victims but more significantly the anxiety of a ten-year old child.

7Your personal history is as follows.  You are a Torres Strait Islander.  You had a stable upbringing in Shepparton.  You had limited education having left school after completing Year 8.  Your working life since that time involved you in carrying out labouring type work.  You are the father of seven children who reside in the care of your family members by reason of orders made by DHHS.

8You are currently on remand with respect to your offending.  It is your intention upon your release from custody to resume your residence with your partner.

9In this instance, you committed the offending with your brother-in-law.  Immediately prior to that offending, you both had been drinking, you were both clearly very affected by the alcohol you consumed.  Your offending was opportunistic and occurred really in the spur of the moment.

10That having been said, it is not in issue that in stealing the gun safe, you intended to break it open and retrieve whatever was inside it and the only reason that process did not occur was the fact that there was intervention by people who were responding to the alarm that was set off.

11On 14 May 2018, your co-accused was sentenced by His Honour Judge Stuart.  In that sentence, His Honour commented upon the fact that your co-accused had a history of being a victim of sexual offending which His Honour accepted provided some explanation for his history of alcohol abuse.  His Honour also commented upon the cooperation of your co-accused in the following terms,

"Cooperation [and I am quoting from His Honour's sentence] cooperation at every level with the authorities in order to bring other wrongdoers to justice and to enable them to be appropriately sentenced is a matter which must be given high priority in terms of encouraging not only persons such as you but others.

"There must be an appreciable benefit to those such as yourself who cooperate.  Without that cooperation, the sentence I would impose would have been well outside the range of sentences that enable me to sentence you to a cocktail as is described of two sentences, imprisonment and community corrections order."

12It is clear that in making those comments, His Honour had recognised that you had pleaded guilty at the time of which he sentenced your co-accused, but the influence that His Honour accorded to the cooperation was made clear by his further comments:

"You are to be congratulated for having done everything within your means to do with this criminal proceeding.  As I say, you confessed to the police, you have offered to cooperate with the police and you have given an undertaking to give evidence if required against Mr Simpson."

13None of those factors which are clearly mitigating can be called upon to your credit in this instance.

14As I have commented in the course of the discussions this morning, you did not provide the police with the name of your co-accused.  There is no issue of course that you entered your plea at a very early time and that you are entitled to a full measure of sentencing discount with respect to that behaviour.

15In sentencing your co-accused, His Honour Judge Stuart commented upon the serious nature of the offending and his obligation in sentencing to provide a sentence which operates to deter others from committing offences of this type and equally I have an obligation to echo those comments and to impose a sentence which deters others but equally deters you from further offending.  I have to denounce your behaviour, ensure that you are appropriately punished, impose a sentence which deters you and others from this type of offending but equally give appropriate weight to your prospect of being rehabilitated.

16Your co-accused was sentenced to an aggregate sentence with respect of the offending and I intend to impose an aggregate sentence.  His sentence was eight months in prison together with a Community Corrections Order the length of which was three years.  That order imposed a number of conditions but did not contain a condition with respect to community work.

17In sentencing you, I must ensure that appropriate parity, that is equality, occurs between your sentence and that of your co-accused taking into account all relevant factors.

18You have been assessed for a community corrections order.  In the course of that assessment, it was recorded that you minimised your responsibility for the offending by stating that you were too drunk to remember much or to be fully accountable for your actions.

19I note that in sentencing your co-accused, Judge Stuart commented that Mr Austin had demonstrated some insight into his offending and his need to rehabilitate himself so that he could become a good partner and father.  His Honour clearly took those matters into account in fixing his sentence.

20In contrast, it is clear from the statement made by you in the course of your community corrections assessment that the positive attitude of your co-offender which influenced the sentence imposed by His Honour Judge Stuart is not present in your attitude.

21You have been assessed as being a suitable candidate for undertaking a Community Corrections Order.  In undertaking that assessment, the assessor categorised you as having a high risk of reoffending and as someone who was unable to express plans that would prevent you from lapsing back into drug and alcohol use and commented that you would need extensive case management to assist you in these areas.

22I am satisfied that in all the circumstances taking into account my obligation to achieve parity.

23Firstly, the behaviour by your co-accused that the scene of offence where you brandished the mobile phone Taser to assist his escape I think operate to marginally increase his culpability more than yours with respect to the offending.

24In terms of the issues that discounted your co-accused's sentence, the absence in your history of:

i.any reason which might put into context your history of alcohol and drug abuse;

ii.any issue as to willingness to give evidence in terms of cooperation; and

iii.your attitude that in some way intoxication reduces your responsibility for your offending which is not present in the attitude of your co-offender

operate to remove significant matters of mitigation which His Honour Judge Stuart gave appropriate weight to in sentencing your co-accused.

25In all the circumstances, as I have said, I am satisfied that I should impose an order which involves a period of imprisonment which is combined with a Community Corrections Order.  The order which I intend to impose is therefore of similar structure of that imposed upon your co-accused given my obligation to ensure there is parity but equally, the sentence that I impose must take into account the difference in sentencing issues which exist between your position and that of your co-accused.

26Taking into account your personal factors to which I have referred, I am satisfied that in this instance, the order that I should impose should not be identical to that of your co-accused.  I am going to impose in this instance, having regard to the seriousness of the offending, an order that you be imprisoned for a period of 14 months from which period will be deducted as time served.

27I am going to impose an order that upon your release from imprisonment, you undertake a Community Corrections Order.  The period of that order will be 30 months, that is two years and six months.  That order will include all of the conditions recommended by the community corrections assessment, namely that you undergo drug treatment and rehabilitation, as recommended you undergo treatment and rehabilitation with respect to alcohol, you are to take part in programs to reduce reoffending, you are to be supervised under the program.

28Additionally, I accept the recommendation that you should undertake community work during the operation of the order and I direct that a total number of 200 hours of community work be undertaken with respect to order but I also direct that any time spent in undertaking any programs, the subject of the order, be counted towards that work.

29Now, do you understand the order that I am imposing?

30OFFENDER:  Yeah.

31HIS HONOUR:  You may not agree with this but I have tried to explain why there is a difference between the order that I have imposed in this instance and the order imposed on your co-accused.  The community corrections order is for a shorter period of time but the period of imprisonment has not been discounted in the way that it was discounted for your co-accused for the reasons that I have indicated.  I declare that the time served in this instance is 105 days.  I have already indicated that it is an aggregate sentence.

32You need to understand that the Community Corrections Order when it commences to operate upon your release will require you to present yourself to the Community Corrections Office and then it is going to continue for two and a half years and if during that period of time, you commit any offence which carries with it a potential period of imprisonment, that will operate as a breach of the order.

33Equally, if you do not comply with the directions given by the Community Corrections Office, you may be breached and if you are breached that exposes you to firstly the potential of a sentence with respect of the breach which carries a three months potential for imprisonment and then it exposes you to be resentenced with respect to these offences.

34So, it is really for you to decide in which way you go - what path you go down.  There is an order to be made with respect to a sample to be taken for DNA purposes.

35Mr Prosecutor, I think it is very important that Community Corrections Order be imposed in this instance having regard to what has been said by the Community Corrections Office, namely that Mr Simpson is going to need a lot of help to get back on the road and I think that the best chance of that help is through the Community Corrections Office.

36So I am going to make an order which is an order under s.464ZF of the Crimes Act, Mr Simpson, and that is that having regard to the nature of this offending and the fact that you have not taken issue with the order, you are to provide a sample of your DNA and that will be - that sample will be provided by taking a mouth scraping under the - but if you refuse at the time of which that scraping is sought to provide a mouth scraping, then a sample can be taken of blood and reasonable force can be employed to allow that process to be undertaken.

37Did you understand that?

38OFFENDER:  Yeah.

39HIS HONOUR:  But for your plea of guilty, I would have imposed a sentence of the type which Judge Stuart would have imposed namely a period of imprisonment of 20 months in relation to which a minimum non-parole period of 14 months would have been fixed.

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