Director of Public Prosecutions v Sinclair

[2022] VCC 259

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 21-00604

DIRECTOR OF PUBLIC PROSECUTIONS

v

NATHAN SINCLAIR

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JUDGE:	HIS HONOUR JUDGE LYON
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	7 March 2022
CASE MAY BE CITED AS:	DPP v Sinclair
MEDIUM NEUTRAL CITATION:	[2022] VCC 259

REASONS FOR SENTENCE

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Subject:   Criminal Law

Catchwords:

Legislation Cited: Sentencing Act 1991 (Vic);

Cases Cited: DPP v Sinclair [2020] VCC 784; Sinclair v The Queen [2021] VSCA 144;

Sentence:   26 months imprisonment

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms K. Farrell
For the Accused	Mr D. Rofe

HIS HONOUR:

1Nathan Sinclair, you have pleaded guilty to the following offences which carry the following maximum penalties:

Charges 1	Armed Robbery	s75A, Crimes Act 1958	25 years’ imprisonment
2,3,4,10,12,14, 18,19,21,22,23	Theft	s74, Crimes Act 1958	10 years’ imprisonment
5	Handling Stolen Goods	s88, Crimes Act 1958	15 years’ imprisonment
6,8,16	Attempted Theft	s74 and s321P, Crimes Act 1958	5 years’ imprisonment
7,9,11,13,15, 17,20	Criminal Damage	s197, Crimes Act 1958	10 years’ imprisonment
Summary charge 4	Drive whilst disqualified	s30 Road Safety Act 1986	240PU or 2 years’ imprisonment
Summary charge 5	Commit Indictable Offence on Bail	s30B Bail Act 1977	30PU or 3 months’ imprisonment
Summary charge 6	Contravene Bail Conditions	s30A Bail Act 1977	30PU or 3 months’ imprisonment

2You have admitted your prior criminal history.  I will return to the significance of your criminal history in the context of this offending later in these sentencing remarks.

3Your offending triggers a mandatory disqualification from driving.

4As you have pleaded guilty to committing an offence whilst on bail, any period of imprisonment imposed must be served cumulatively on other sentences of imprisonment imposed upon you unless I order otherwise.

Circumstances of Offending  

5The Crown tendered the summary of prosecution opening as Exhibit A.  A summary of your offending is as follows:

6At 10:00pm on 13 August 2020 as she finished work at Coles in Boronia, the victim Nirosha Arachchige walked past you in the underground car park as she made her way to her car.  You ran up behind her holding a 20 to 30 cm knife and pointed it at her chest.  She screamed and you took her handbag and keys from her hand (charge 1, armed robbery).  You stole her silver Lexus sedan and drove off (charge 2), using it as your vehicle of choice for the next week.

7At the time of your offending, you were on bail for other matters.  Secondly, you were in breach of a curfew condition imposed on you as part of your bail.  Furthermore, you offended during the currency of a community corrections order imposed on you on 4 June 2020.  Finally in this respect, you were disqualified from driving, having been disqualified on 3 February 2020.

8Between the time of stealing Ms Arachchige’s car on the evening of 13 August 2020 until your arrest on the morning of 19 August 2020, you:

(a)Filled the stolen car on five occasions and did not pay for the petrol (charges 3, 4, 21, 22 and 23);

(b)Fitted stolen registration plates to the vehicle (charge 5);

(c)Smashed the windows of seven different cars in order to gain entry in the hope of stealing items from those cars (charges 7, 9, 11, 13, 15, 17 and 20);

(d)Attempted to steal items from three different cars but were unsuccessful (charges 6, 8 and 16); and

(e)Stole one set of registration plates and personal items from cars, such as keys, a garage remote, a phone charger and Bluetooth headphones from about five different cars (charges 10, 12, 14, 18 and 19).

9You were arrested in Corio on the morning of 19 August 2020.  The stolen car was parked outside your house and the stolen items were found inside your house.  Police matched clothing and shoes worn by you with the CCTV footage taken during your offending.

10In a record of interview conducted with police, you denied involvement in the armed robbery on 13 August.  You stated that you were in Geelong at the time and also stated that the stolen car had been left outside your place by someone else.  Your mother also made a statement saying that you had been at her place in Boronia (that is, close to the armed robbery location) on 13 August.

Objective Gravity and Moral Culpability 

11I turn now to a consideration of the objective gravity of your offending and an assessment of your moral culpability.

12The seriousness of the offence of armed robbery can be first marked by the maximum period of imprisonment imposed – that is 25 years.  Moreover, yours is a serious example of this crime.  It appears you waited in the underground car park for someone to arrive.  Your offending occurred late at night and your target, a defenceless female worker from Coles who had just finished her shift, was walking by herself to her car.  You chose a soft target.  It is clear that you had the element of surprise, for although she had seen you as she went past you, you ran up behind her and held a large knife at her chest.

13In the words of your lawyer, this situation must have been intense for your victim.  The impact of your offending has been significant and long lasting.  She now fears being left at home when her partner goes out; there are numerous precautions that she now feels that she must take, she suffers flashbacks and dreams when reminded of the circumstances and, out of pure fear of you, she and her husband are moving house.

14You instructed your counsel Mr Rofe that you do not remember the circumstances of the armed robbery.  I take this as a level of just how affected by drugs you were.

15In assessing your moral culpability, I have regard to the following factors:

(a)In August 2019 you committed an armed robbery in company with another male.  On 4 June 2020, you were convicted in the County Court of Victoria and sentenced to 9 months' imprisonment and placed on a community corrections order for a year in relation to that robbery.[1]  The learned sentencing Judge made the point of extending mercy to you on that occasion because of your background and age.  This offending occurred within about nine weeks of that sentence and contravenes the CCO;

(b)You were on bail for other offending and in breach of a curfew condition of that bail;

(c)You have a previous finding of guilt for attempted armed robbery in the Children’s Court back in 2015;

(d)You have previously faced a very large number of charges dating back to 2015 for dishonesty, property damage, possession of weapons and some driving matters in the Children's’ Court and in the Magistrates’ Court.  You have breached orders for probation, youth supervision, community corrections, and bail, including committing offences whilst on bail, failing to answer bail and breaching conditions of bail;

(e)Although you were apparently drug affected at the time of committing the armed robbery, it is submitted (and I will accept) that this neither mitigates nor aggravates your offending.

[1] DPP v Sinclair [2020] VCC 784.

16When I take account of the objective circumstances of your offending, this is a serious example of this crime.  The Crown characterised the seriousness of your offending as midrange and I agree.

17Ordinarily, such a crime must be met by principles of deterrence, denunciation, just punishment and a measure of protection of the community.  Ordinarily, such a crime would attract condign punishment - usually a heavy sentence of imprisonment.

18In your case, I must consider the impact of your deprived childhood background, your youth and the principle of totality in the sentencing process.  I shall say more about these and my assessment of your moral culpability for your offending later in these remarks.

Personal Circumstances

19You are 21 years of age and you were born on 23 June 2000.

20You were born and raised in Geelong.  Your parents separated before your birth.  You have four maternal half-siblings and two paternal half-siblings, which you barely see.

21You lived with your mother until you were aged 4.  You then lived with your father and his partner until Child Protection intervened when you were aged 11.

22Your mother has several mental health diagnoses and is heavily reliant upon drugs.  Your father was an alcoholic and physically violent to you.  You do not wish to have a future relationship with him.

23Your foster parent Tracey spent time in prison for murder.  As a result, you were then placed in foster homes and lived in two residential care units until you were 17.

24I intend to quote from the original sentencing remarks at the time of your sentence and as reproduced by the Court of Appeal in its judgment.  In my view, the observations of the original sentencing Judge from your earlier plea quickly and eruditely get to the essence of your situation:

… You are an Indigenous man.  In summary, your upbringing was acutely dysfunctional.  You were born in Geelong.  You were at first raised by your mother.  She had significant mental health and drug problems herself.  Your early years were not nurturing.

At age four, you went to live with your father and stepmother.  He was violent and vindictive and your formative years with him were, as I have described, dysfunctional and abusive.

At age 11, you were taken into foster care, having been the subject of Department of Health and Human Services applications.  There were, thereafter, many foster homes and care placements and twice, you were put into DHHS residential care facilities.

You have had periods of homelessness and couch surfing with other marginalised young people.  Your schooling was very limited and you have not had employment.

You were diagnosed with ADHD at 11.  By age 12, you were using cannabis.  Your drug use then went on to ice and GHB.  You also took to chroming when you were in residential care.  This is, in blunt terms, an awful childhood.

You did not mature with any real sense of how to take responsibility.  You were impulsive with low frustration tolerance and mood swings.  Your offending saw you before the Children's Court regularly in 2015 through to 2018.

Psychologists and psychiatrists who have assessed you for court proceedings note your anxiety, post stress disorder and borderline personality disorder.  You have significant problems with drugs and alcohol.

What is sadly very obvious, is that you have had a disadvantaged upbringing that directly impacts upon your behaviour.  Your circumstances enliven the principles outlined by the High Court in Bugmy.[2]

Accordingly, your disadvantage is always relevant to sentencing notwithstanding your ongoing offending.  The disadvantage of upbringing can, and in this case, does, impact on your moral culpability.  That is, it lowers your moral culpability.

[2] Sinclair v The Queen [2021] VSCA 144, [27]; citing DPP v Sinclair [2020] VCC 784.

25It follows that I respectfully adopt these observations made in the earlier court hearing in my assessment of your current situation.

26I have previously mentioned your numerous prior criminal matters. Although a number relate to breach proceedings, it appears that you have about a dozen previous court appearances for committing numerous offences.  Although, as I have outlined, whilst you were given many supervisory orders, it appears that you breached those orders.

27I have read the report of psychologist Gina Cidoni dated 11 February 2021.  Ms Cidoni assesses your full scale IQ at 80, and confirms that you meet the diagnostic criteria for ADHD, post-traumatic stress disorder and substance use disorder.

28Since you have been in custody, you have returned negative drug screens.  You have undertaken a number of vocational courses and you have worked as a general billet.  Importantly, you have also participated in the Aboriginal Holistic Cultural Yarning Circle Program (AHCYCP) ‘aims to provide appropriate cultural support for the transition and reintegration of Aboriginal prisoners back into the community through cultural mentorship and the building and strengthening of cultural identity and responsibility’.  You proudly showed me some of your artwork undertaken as part of your search for your indigenous cultural heritage.

29I received evidence from Ms Jamie Lee Clark.  Ms Clark is the mother of your son Riley who is about to turn one year old.  Although Ms Clark has had her own relatively intense history of criminal offending, she was released from prison in July 2020 and has strived to remain drug and incident free ever since, whilst caring for your and her son under the watchful eye of child protection workers.

30Ms Clark candidly told me that her relationship with you when you were both in the community was only relatively brief.  The relationship has developed and strengthened since you have been in custody.  Ms Clark has offered you accommodation upon your release from prison.  Ms Clark told me in evidence that she has witnessed a change in your attitude and values.  She described you as becoming more mature and reasonable in your approach to day-to-day decision making.

31Finally in this respect, Ms Clark works at an indigenous reintegration program.  She believes that the same programs which helped her in her reintegration back into the community would be available to you.  You have previously used the services of Youth Support and Advocacy Service (YSAS) and you believe that service would be available to you again.

Submissions

32Mr Rofe, who appeared on your behalf, submitted the following factors should operate to mitigate your sentence:

(a)Principally, Mr Rofe submitted that I should defer sentence and admit you to the CISP program where your behaviour in the community could be monitored.  Thereafter, Mr Rofe submitted the following matters should mitigate your sentence;

(b)Your plea of guilty was not made at the earliest time.  There was a contested committal, and then negotiations resulted in the withdrawal of principal charges and in an appropriate resolution of the matter.  As such, I consider your plea has utilitarian benefit and facilitates the course of justice;

(c)Although, you have not exhibited any particular remorse; although, I must say, unprompted on the morning of the plea, you showed a willingness to offer an apology to the victim of the armed robbery.  As she did not participate in the hearing, the apology was not made;

(d)Your documented, significantly deprived background should lead to the conclusion that your moral culpability for your offending is lowered (the Bugmy submission);

(e)You are still a young man.  As such, your youth and the dominant sentencing objective of rehabilitation should be a significant consideration in the sentencing process; and

(f)In particular, Mr Rofe relied upon the judgment of the Court of Appeal in your case.[3] After you contravened the CCO of 4 June 2020, you were remanded in custody and the CCO could not be maintained.  The original sentencing Judge resentenced you to a term of 26 months' imprisonment with a non-parole period of 18 months' imprisonment on the charge of armed robbery and theft.  You appealed to the Court of Appeal.  There, the Court observed that your rehabilitation “remained a key consideration in the resentencing” and sentenced you instead to a term of 15 months with a non-parole period of 9 months.  Mr Rofe relied heavily on the Court’s observation about the need for you to achieve your rehabilitation.

[3] Sinclair v The Queen [2021] VSCA 144.

33Ms Farrell, who appeared for the Crown, submitted that the only appropriate sentence is a term of imprisonment with a non-parole period.  The Crown submitted that:

(a)You are entitled to a sentencing discount, even though your plea was not made at the earliest stage;

(b)Your plea has greater weight as it was made during the pandemic;

(c)There is no evidence of your remorse;

(d)Totality – You have been in custody since 19 August 2021.  Your PSD is 288 days now and was affected by not only the resentencing two Magistrates’ Court sentences which you have cut out;

(e)Specific deterrence and protection of the community must factor in the sentencing consideration.  You have a lengthy and relevant criminal history for dishonesty, violence, weapons, bail and driving offences, and have served significant terms of imprisonment.  You have breached Probation Orders, Youth Supervision Orders and Community Correction Orders.

(f)You were on bail and subject to a CCO at the time of offending;

(g)It was submitted your prospects of rehabilitation are probably poor.  Your longest previous period of being drug free was during your time in prison;

(h)Ms Farrell submitted that whilst Bugmy is relevant, you are unable to control your impulses and exercise good judgement, which means that the protection of the community is of greater importance in the sentencing exercise; and

(i)Finally, the Crown agrees that you fall to be sentenced as a youthful offender but submits that you have a relevant prior history, poor prospects of rehabilitation, and you have committed a further armed robbery.  As such, Ms Farrell submitted that the importance of rehabilitation, created largely by your youth, must take a backseat to other protective sentencing principles.

34The Crown opposed the deferral of your sentence, and release on CISP.

Analysis

35As I stated at the plea hearing, I do not consider that it is either viable or justifiable to assess you for release on the CISP program and to defer sentence.  The objective gravity of your offending and the fact that it followed an earlier offence of armed robbery, and breached the CCO for that offence, and your comprehensively poor record of contravening bail and community supervisory orders leads me to that conclusion.

36There are however a number of factors in addition to deterrence, denunciation and protection of the community which I must take into account in structuring a sentence in this case.

37First, I do take into consideration that your time in custody has been affected by the COVID-19 lockdowns.  The immediate effect of any lockdown is a reduction and suspension of vocational and personal improvement courses, restriction on your ability to move around the prison, a severe reduction in work available and a suspension of face-to-face visits.

38The other more insidious effect of the pandemic and lockdowns is the stress caused to you - that is the fear that the pandemic would penetrate into the prison system, and so isolation has been extensively used by prison authorities as a strategy to limit close contact.  I shall take this into account as a mitigating factor.

39Next, I must take into account the principle of totality.  That is, I must not simply take into account the fact that you have served 288 days PSD for this offending. Rather, I must look at the fact that you have now been in custody now since August 2020.

40Is it 2020 or 2021?  I have said 20.  It must be 2020.

41MR ROFE:  It is 2020, Your Honour.

42HIS HONOUR:  Yes, I said 2021 before, Mr Rofe, and I will correct the record on that.

43MR ROFE:  Yes.  Thank you, Your Honour.

44HIS HONOUR:  And have served other sentences.  In other words, I must arrive at a sentence in which this matter sits as a component of your overall offending and gaol time.

45Next I must still have regard to the fact that you are only 21 years of age and have your whole life ahead of you.  The nature of your offending on this occasion and your already long list of prior criminal convictions does somewhat detract from the primacy of the objective of moderating your sentence to achieve your rehabilitation.  Nevertheless, your rehabilitation remains a key consideration in the sentencing process.

46Next, I give weight to your deprived and dysfunctional background.  You were brought up with little parenting, little education, no employment and you matured without learning how to take responsibility for yourself.  Yet while these factors must be taken into account in the mitigation process, as Ms Farrell submitted, the High Court case of Bugmy requires a balance to be struck between the consideration of those factors which may make it inappropriate to use you as a vehicle for general deterrence and the real need to ensure the protection of the community.

47Mr Sinclair, even at your young age, and even taking into account your dysfunctional and deprived background, the Courts are, and will continue to run out of patience with your offending.  In particular, you were given an enormous opportunity through a merciful sentence imposed on 4 June 2020.  It took only nine weeks for you to blow that chance by committing the same type of offence with a frightening impact on your victim.

48You will be sentenced to a term of imprisonment today.  I intend to impose a longer sentence of imprisonment than the Court of Appeal imposed on you.  That is only right, because you committed this offence so soon after you were sentenced for the earlier armed robbery and whilst you were on bail and on a community corrections order.  I will however give you the opportunity for release on a relatively long period of parole.  You must earn the right to be released upon parole. However, if you do so, then it will provide the support and structure to supervise your reintegration back into the community.

Orders

49The sentences are as follows:

Charge No.	Charge	Sentence	Cumulation
1	Armed Robbery	20 months	Base
2	Theft	5 months
3	Theft	3 months	2 months
4	Theft	3 months
10	Theft	3 months
12	Theft	3 months
14	Theft	3 months
18	Theft	3 months
19	Theft	3 months
21	Theft	3 months
22	Theft	3 months
23	Theft	3 months
5	Handling Stolen Goods	3 months
6	Attempted Theft	2 months	1 month
8	Attempted Theft	2 months
16	Attempted Theft	2 months
7	Criminal Damage	4 months	2 months
9	Criminal Damage	4 months
11	Criminal Damage	4 months
13	Criminal Damage	4 months
15	Criminal Damage	4 months
17	Criminal Damage	4 months
20	Criminal Damage	4 months
Summary charge 4	Drive whilst disqualified	3 months	1 month
Summary charge 5	Commit Indictable Offence on Bail	1 month
Summary charge 6	Contravene Bail Conditions	1 month
TES	26 months
NPP	17 months
PSD	288 days
Disqalification	12 months
6AAA	3yrs 9 months / 2 years 5 months

….

50HIS HONOUR:  You will appreciate that because of the large number of charges, in order to achieve what I consider a sentence which complies with totality, I have had to somewhat artificially go about the task of cumulation of sentences.

51All right.  Now, anything further from your perspective, Ms Farrell?

52MS FARRELL:  No, Your Honour.  As it please the court.

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