Director of Public Prosecutions v Sinclair

[2020] VCC 784

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-02413
CR-20-00310

DIRECTOR OF PUBLIC PROSECUTIONS

v

NATHAN SINCLAIR
TRISTAN SMITH

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:	26 May 2020
DATE OF SENTENCE:	4 June 2020
CASE MAY BE CITED AS:	DPP v Sinclair & Anor
MEDIUM NEUTRAL CITATION:	[2020] VCC 784

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Clark	Office of Public Prosecutions
For Accused Sinclair	Mr D. Rofe	Chester Metcalfe & Co
For Accused Smith	Ms S. Lacey	Victoria Legal Aid

HIS HONOUR:

1Tristan Smith and Nathan Sinclair, over five days on 23 August 2019 to 27 August 2019, you, Tristan Smith, engaged in stealing three cars and petrol to keep driving them.  You, Nathan Sinclair, were a passenger in one of those stolen cars.  However, the most serious criminal conduct in this short period was what occurred in the early morning of 27 August 2019.

2You, Tristan Smith, were driving one of the stolen cars.  You drove into a supermarket car park in Newcomb.  You, Nathan Sinclair, were in the passenger seat. 

3The victim had parked her car and was heading into the shopping centre where she worked.  You, Mr Smith, having seen the victim, then stopped your car next to her and you, Nathan Sinclair, got out, covered part of your face and produced a sharp object before grabbing her bag.  You then yelled at her to hand over her keys and grabbed the keys and ultimately got into her car and stole it as well. 

4The victim was left distressed and shaken.  She has provided how she felt set out in a victim impact statement.  I have taken that into account. 

5On your arrest on 27 August 2019, you, Mr Smith, were discovered by the police upon the arrest and search of your premises, to have a number of stolen items and drugs where you were living.  You, Mr Sinclair, were arrested on 2 September, 2019. 

6Mr Smith, you have pleaded guilty to the following charges.  One charge of armed robbery, seven charges of theft, being three cars and the petrol drive-offs, three charges of handling stolen goods and two charges of theft (indistinct).  You also pleaded guilty to a number of driving offences as at the time you only held a learner's permit. 

7You, Mr Sinclair, pleaded guilty to one charge of armed robbery, one charge of theft of a car, that is the one you were a passenger in, and one charge of driving while disqualified as you were disqualified from driving at the time you stole and drove off in the victim's car, from the supermarket car park.

8While the armed robbery arose spontaneously from the circumstances that evolved in the car park, it remains serious and frightening offending.  The impact on the victim as I have said, is a matter that I must take into account. 

9What I also must do is give appropriate weight to denunciation for your behaviour and deterrence to you and to others.  The thefts of cars belonging to others simply to allow you, Mr Smith, to drive about are also serious matters. 

10While the gravity of what you did is important, I cannot let it overwhelm all else.  What is another important consideration is that each of you are still very young.  Your youth impacts on my assessment of your moral culpability as well as what the future may hold in terms of rehabilitation. 

11It is, in the end, beneficial to the community if you two men reform and stop committing crimes.  I emphasise this matter because unfortunately each of you have already a long list of criminal convictions in the Children's Court and now in the adult courts, so while punishment must be part of the sentence, endeavouring to establish conditions that will bring an end to your criminal ways, is important and as I said, beneficial to all.  That is the point of giving weight to rehabilitation, rather than being simply lenient to you.

12I turn to and deal with your personal circumstances.  First, you Mr Smith.  You are now 20, 19 at the time of the offending spree.  You are an Aboriginal man from the Gunditjmara country. 

13Because of risks to your wellbeing, you were taken from your birth mother and placed under State care from a very early age of 18 months.  You were placed into a foster care of a white family to age four, and thereafter with another family. 

14There are other siblings from both families.  However, relevantly, you commenced offending.  An older brother was not a good influence on you and he and you engaged in offending behaviour which saw you regularly before the Children's Court. 

15At age 14, you were asked to leave the family home of the foster parents.  You moved into a boarding house with your older brother.  Your drug use escalated, including using methylamphetamines.  Notwithstanding your early introduction and considerable use of ice from the age of about 14, you were able to stop using that drug or all drugs at about age 16.  You became involved in a steady, positive relationship and you were able to engage in steady employment. 

16Unfortunately, there were still appearances at the Children's Court in this time, and breaches of your supervisory orders.  However, the point made by your counsel is that despite your turbulent upbringing, your early drug use, limited education, criminal offending and unstable housing, you were able to have a period of stability and abstinence from drugs. 

17When that relationship ended, you did not cope well or behave appropriately.  You committed a number of offences of violence including persistent breaches of an intervention order.  You were remanded and sentenced by the Magistrates' Court on 2 April 2019 to 85 days' imprisonment which you had already served together with a community corrections order.

18In a very short time, you were remanded again, and on 13 August 2019, sentenced to the 90 days you had served on remand and again, you were placed on a community corrections order.

19I was told that you were some ten or so days out of prison when you commenced this offending.  Thus, you were on a community corrections order at the time of your offending.

20This recent history does not reflect well on you, or in ordinary circumstances, give confidence for your rehabilitation.  However, your counsel outlined that since your remand on these matters, now nine months ago, you have taken very substantial steps in turning things around. 

21Most importantly in this longest period in custody, you have overcome a desire for recommencing drugs.  It was the opposite upon your release from your last two shorter periods of imprisonment.  In those earlier periods of incarceration, all you wanted, upon release, was to secure drugs.

22Of central importance is that you have fully resolved your previous volatile relationship.  You have reconnected with an acquaintance.  She is a young women who lives at home in West Footscray, is employed full time and has no interest in drugs or drug users.  She was visiting you regularly in custody before the COVID-19 restrictions ended all in-person visits.

23She gave impressive evidence at your plea.  She made clear that her parents were aware and supportive of her relationship.  Significant mitigating factor is that she and her parents want you to live at the family home upon your release. 

24She was well aware of your prior convictions for breaches of intervention orders which were to protect your previous girlfriend from family violence.  Her position was clear, that if you are not respectful and well behaved or if you resume drug use, you will not be welcome. 

25Stable housing in a new location with a responsible family in a responsible family setting gives you the best opportunity to break your recent cycle of drug use followed by offending followed by imprisonment and then repeat. 

26It is, however, entirely up to you to do what is required of you to stay off drugs.  Your recent letter to the victim makes it clear that you have developed insight into taking responsibility and developed motivation to not continue in the behaviours you were engaging in, in the past.

27You have, in the past, been more settled with a relationship and with employment as I describe.  That history and more importantly, your current attitude and the generosity of your new girlfriend and her family, means that I now have some confidence in your capacity to reform, or at least there is a basis to give rehabilitation a chance.

28You, Nathan Sinclair, are 19 as you were at the time.  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. 

29At 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. 

30At 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. 

31You have had periods of homelessness and couch surfing with other marginalised young people.  Your schooling was very limited and you have not had employment. 

32You 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.

33You 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. 

34Psychologists 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.

35What 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. 

36Accordingly, 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. 

37You have been on remand in Youth Justice Centres and adult prison prior to this offending, though no previous sentence imposed recognises your incarceration.  Your prior convictions are concerning, especially as many penalties imposed were directed at rehabilitative and most, ultimately had little effect. 

38While in custody on remand for these matters, you have been before the Magistrates' Court again and given one month imprisonment.  You were on a community corrections order at the time and at the same Magistrates' Court hearing, that order was cancelled.

39This period on remand has been far and away your longest period of incarceration.  You have used that time to try and deal with your drug issues and your hope is that you can put drugs behind you.  Again, because of your age, rehabilitation is to be emphasised.

40Each of your counsel submitted that the inevitable term of imprisonment could be limited to the time that you have already served and that that imprisonment together with an onerous community corrections order would be the just and appropriate sentences for both of you. 

41Such a sentence could be tailored, giving proper weight to rehabilitation while also satisfying the sentencing purposes of denunciation and deterrence.  The prosecution contended gaol was the appropriate sentence and ordinarily of a length that would disallow a combination of imprisonment and a community corrections order. 

42However, the prosecution conceded that your young age, acute dysfunctional and disadvantaged upbringings and the added issue of the COVID-19 restrictions, all these matters combine such that a community corrections order, together with imprisonment, was within appropriate range. 

43I should mention that you were each assessed for your suitability for detention at a Youth Justice Centre.  It was put in the pre-sentence reports that each of you presently pose risks for others at the Youth Justice centre.  I do not need to elaborate upon these reports because I do not consider further detention in a Youth Justice Centre as appropriate. 

44You were both assessed for community corrections orders and notwithstanding that each of you have not fared particularly well on community corrections orders in the past, you were found to be suitable.

45As is made clear in the Sentencing Act, I cannot impose imprisonment or further imprisonment unless the purposes for sentencing cannot be satisfactorily met by punishment other than imprisonment.  To put it more directly, imprisonment is the punishment of last resort. 

46As the Court of Appeal has said in Boulton and Ors v The Queen, imprisonment is not conducive to rehabilitation, indeed quite the contrary.  This is important in these circumstances because of your youth, weight has to be given to rehabilitation or reclaiming you both. 

47As was made clear in Boulton sentences involving community corrections order can be given even for serious offences that in the past would have attracted mid-range gaol terms and offences that have maximum terms of 25 years, the same as the armed robbery, the offence that you have committed. 

48The community corrections order itself is punishment but it can simultaneously facilitate rehabilitation.  Thus, the imprisonment that you have served is, and has been punishment and a community corrections order is further ongoing punishment.  The rehabilitative aspects of a Community Corrections Order are plainly indicated for each of you given your past and your addictions and your youth.

49After careful consideration of the important principles articulated in Boulton and all the circumstances of this offending and you as the offenders, I am of the view that imprisonment and a Community Corrections Order is the appropriate sentence. 

50Further, I consider that there is little value in terms of the sentencing purposes in any significant further time in prison.  You both should understand that the sentence I am about to announce are merciful sentences.  They put significant responsibility back on you. 

51If you do not strictly adhere to the Community Corrections Orders then I will have only one option upon the breach and that is to impose a significantly longer period of gaol than you have already served.  

52The sentences will be different for each of you to reflect the different number of charges and the extent of your offending. 

53In your case, Mr Smith, another expression of mercy is that for your different crimes, the thefts of the valuable cars, will be met with concurrency.  Each of you have pleaded guilty and your sentences are less and of a different kind as a consequence of your plea of guilty and your expressions of remorse. 

54A plea of guilty at this time when jury trials are suspended is of added value.  You have both been in adult prison for a significant period.  Since mid-March the restrictions imposed on prisoners due to the COVID-19 pandemic have made prisons different and much more onerous places.  I have factored that into the equation. 

55As I have said, there is little, if any purpose to be served on imposing significantly further imprisonment.  However, the sentences together with the community corrections orders must be realistic and properly tailored to ensure when you are released, you are able to move into the community well organised and ready. 

56You, Mr Smith, are to go to your girlfriend's family home.  Mr Sinclair, your plan as described by your counsel, is less encouraging.  It is vital that you become settled and do not end up homeless or moving from one associate's residence to the next. 

57The crimes that you have committed, I will start dealing with your Mr Smith first.  The base sentence is Charge 8, the armed robbery.  You are sentenced to 10 months' imprisonment together with a community corrections order which I will outline shortly.  

58For Charges 1, 5 and 6, the car thefts, you are sentenced to six months' imprisonment.

59Charges 2, 3, 4 and 7, that is the theft of the petrol you are sentenced to two months' imprisonment.

60The handling stolen goods offences, the penalty will be the community corrections order that I will shortly announce. 

61The possession of a drug of dependence, the methamphetamines, that too will be punished by the community corrections order as will the charge relating to the drug of dependence, being the cannabis. 

62The driving offences and the use of the drug of dependence, though summary matters, they having been proven, you are convicted and discharged.  There is no further penalty for those. 

63In respect of the community corrections order in your case, Mr Smith, it will be for two years.  You will be required to do unpaid community work being 120 hours.  You will also be under supervision. 

64You will be required to be assessed and treated for drug addiction.  You will be required to be assessed and treated for mental health difficulties.  Each of those two programs, the hours that you spend engaged in those, can be subtracted from the unpaid work. 

65You will also be required to undergo or be the subject of judicial monitoring.  A date will be set in October this year.  You come back before me to see how things are going. 

66As I understand it, and I will need some assistance here, you have been in custody now for 282 days, is that right, Mr Clark?

67MS LACY:  That's right, Your Honour.

68HIS HONOUR:  282 days.

69MS LACY:  Yes.

70HIS HONOUR:  As I calculate that, that is nine months' and eight days.  This period of time of 282 days, having been reckoned, I will declare it as part of the sentence I have just imposed.  I will ensure that this declaration is entered into the records of the court so that the prison authorities understand that you have already done 282 days, that is nine months' eight days. 

71In respect of you, Mr Sinclair, for the crime of the armed robbery, you are sentenced to nine months' imprisonment and for the theft of the motor car, three months' imprisonment and for the drive while disqualified, one month imprisonment.  That is the summary offence.

72You also will be on a community corrections order.  That community corrections order will be for one year.  There will be, for you, no unpaid work as punishment, but rather you will be under supervision.  You will have to be assessed and treated for drug addiction, assessed and treated for mental health problems and likewise, you will have to attend for a judicial monitoring at a date in October. 

73Calculation for your period of time in custody is 246 days, is that correct?

74MR CLARK:  Yes, Your Honour.

75MR ROFE:  Yes, Your Honour.

76HIS HONOUR:  So the 246 days having been reckoned, I declare that you have served 246 days of the sentence I have just announced.  As I see it, that is eight months' and three days and the total sentence of imprisonment is nine months. 

77Had you pleaded not guilty to these offences and been found guilty of them, you Mr Smith, I would have imposed a term of imprisonment of 30 months with a non-parole period of 18 months, and in your case, Mr Sinclair, I would have imposed a sentence of 24 months with a non-parole period of 12 months. 

78Are there any other orders that have to be made?

79MR CLARK:  Your Honour, there is a disposal order.

80HIS HONOUR:  I make that disposal order.  That will be signed in due course.  Is there any licence or something?

81MR CLARK: There is, Your Honour, under s.89(4) of the Sentencing Act. 

82HIS HONOUR:  Is there a minimum amount of time or the like?

83MR CLARK:  (Indistinct) Your Honour.

84HIS HONOUR:  All right.  Each of you, in respect of your licence, you Mr Smith, will be disqualified from driving for a period of nine months, and you Mr Sinclair, for a period of five months.  Is there anything other than those matters now Mr Clark?

85MR CLARK:  No, Your Honour. 

86HIS HONOUR:  Ms Lacy, is there anything that needs dealing with?

87MS LACY:  No, Your Honour.

88HIS HONOUR:  Thank you.  Mr Rofe?

89MR ROFE:  No, Your Honour.

90HIS HONOUR:  What has to happen is, that I will just go through with each of these accused in more detail, the mandatory matters relating to their community corrections order together with the program conditions they have got to consent to those.  So dealing with you first, Mr Smith, everyone is on a community corrections order.  The following conditions apply. 

91You must not commit any offence for which you can be punished by a term of imprisonment during the course of this community corrections order.  So you must not commit another offence. 

92If you do, it does not matter what the Magistrate in court might do.  If the offence is one that can be dealt with there, you will come back before me and as I have said during the course of sentence, you will not receive the same sort of leniency that you have today.  You will go back to gaol. 

93Also, the other conditions that apply relate to your cooperation.  So you have got to cooperate with the Office of Corrections in the sense of they will need to apply the regulations which I am told mean that they will take photographs to identify you and things of that kind; just cooperate with that. 

94You have got to tell them of any change of address or job.  You cannot leave Victoria without getting permission to do so.  You have got to obey all lawful directions and instructions of the Office of Corrections.  You have got to receive visits from the Office of Corrections. 

95Importantly, you have to attend and I will describe to you what that means, at the Office of Corrections within 48 hours of being released from prison.  The Office of Corrections that would deal with you is the Sunshine office.  You have to be touch with them by telephone within 48 hours of your release. 

96In addition to that, I have set out what your conditions are, that is, you have to do some unpaid community work, you have to be under supervision and drug assessment and mental health assessments are other programs that you have to abide by and there will be judicial monitoring in October.  Is there a date Mr Associate? 

97ASSOCIATE:  12 October, Your Honour.

98HIS HONOUR:  12 October. It  can be at 9.30.  You will get some information as to how to link into that, but you have got to attend at court by video link or in person on 12 October at 9.30 for judicial monitoring.  Is there any other condition I have left out, Mr Associate?

99ASSOCIATE:  No, Your Honour.

100HIS HONOUR:  Thank you.  Now Mr Smith, do you consent to that community corrections order?  Ordinarily, you would be provided with a document.  Your lawyer might go through it with you and you would sign it.  That cannot occur.  Do you consent to the community corrections order?

101OFFENDER SMITH:  (No audible response.)

102MS LACY:  Your Honour, he is muted.

103HIS HONOUR:  Unmute him.  Whoever has muted him, unmute it.

104ASSOCIATE:  He is unmuted, Your Honour.

105HIS HONOUR:  Thank you.  Mr Smith, do you consent to that.

106OFFENDER SMITH:  Yes, thank you, Your Honour.  Yes.

107HIS HONOUR:  Thank you.  Just because the way this is going, I can't - So I did not actually see you come up to say it.  It is a just a voice from wherever.  So can you just say your full name.  That might bring you up on screen.  Can you do that for me?

108OFFENDER SMITH:  Tristan Smith.

109HIS HONOUR:  Yes, thank you.  I do not know what is happening.  I take it that that was Mr Smith's voice.  He consents to it.  Thank you very much Mr Smith. 

110Mr Sinclair, likewise, the mandatory conditions that apply to everyone on a community corrections order is that you must not commit and offence for which you could be imprisoned during the course of the community corrections order. 

111Now, that means almost every offence you can think of.  Should you commit an offence you will come back before me and that will see you go back to gaol. 

112OFFENDER SINCLAIR:  (Indistinct).

113HIS HONOUR:  So that the requirements under the community corrections order that you comply with the sentencing regulations, to identify you, take a photograph and those sorts of things that you have been through before. 

114Also you have to report to the Community Corrections office in Geelong as I understand it.  That is, by telephone or report to the Community Corrections officer within 48 hours of your release from prison.  You have to accept visits from the Office of Corrections.  You have got to tell them if you change your place of residence or your work.  You cannot leave Victoria without permission and you have got to abide by all lawful directions that they give you.  So those are the matters that just involve you cooperating with them. 

115In addition to that, in your case, the community corrections order is really directed to you being under supervision for the whole period of one year, that you undergo treatment and assessment for your drug problems and your mental health problems and you attend at court on 12 October at 9.30 for a judicial monitoring; that is, come back and I will see how you are travelling, do you understand all that?

116OFFENDER SINCLAIR:  Yep.

117HIS HONOUR:  Do you consent to that community corrections order?

118OFFENDER SINCLAIR:  Yes, Your Honour. 

119HIS HONOUR:  Thank you.  There will be documents produced ultimately.  You will get those through your lawyers or through the Office of Corrections.  Is there anything further required?  Thank you. 

120I will sign those orders and those matters will come to counsel in due course.  I am going to leave the meeting as it were, or the court hearing.

121If counsel require some talking with their clients, then do that as best it is allowed, without taking up more time than they have at the prison.  Thank you. 

122MS LACY:  As Your Honour pleases. 

123MR CLARK:  May it please the court.

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