Director of Public Prosecutions v Smith, Irwin and Aslin
[2019] VCC 214
•18 February 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
GENERAL LIST
CR 17-01540
CR 17-01546
CR 17-01539
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JACK SMITH AKA JACK CANNY TIMOTHY IRWIN |
BENJAMIN ASLIN
‑‑‑
| JUDGE: | HER HONOUR JUDGE CONDON |
| WHERE HELD: | Melbourne |
| DATES OF HEARING: | (Pre-Trial) 24 - 26 September 2018 (Plea) 11 December 2018 and 6 February 2019 |
| DATE OF SENTENCE: | 18 February 2019 |
| CASE MAY BE CITED AS: | DPP v Smith, Irwin and Aslin |
| MEDIUM NEUTRAL CITATION: | [2019] VCC 214 |
REASONS FOR SENTENCE
‑‑‑Subject: CRIMINAL LAW
Catchwords: Sentence – burglary – plea of guilty
Sentence: Smith: total effective sentence of six months’ imprisonment and a
Community Correction Order of two years
Irwin: total effective sentence of five months’ imprisonment and a
Community Correction Order of two years
Aslin: total effective sentence of five months’ imprisonment and a
Community Correction Order of two years
Section 6AAA declaration (in relation to all Accused): four years’
imprisonment with a non-parole period of two years‑‑‑
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr P Pickering | Solicitor for the Office of Public Prosecutions |
| For Accused Smith | Mr M Allen | Dribbin & Brown |
| For Accused Irwin | Mr J Lavery | Chester Metcalfe & Co |
| For Accused Aslin | Ms N Smith (Plea) Mr J McLoughlin (Sentence) | Victoria Legal Aid |
HER HONOUR:
Jack Smith aka Jack Canny
1Jack Smith, you have pleaded guilty before me to three charges of theft and one charge of burglary.
2Exhibit A on the plea was the Summary of Prosecution Opening. I incorporate that document into my Reasons for Sentence, however I will briefly summarise the offending that has brought you before the court.
3At the time of these offences you were 26 years of age. You are now 29 years of age.
4At approximately 1:35pm on 26 July 2016, a white Ford Courier registration XQB 940 belonging to Lee Tomkins was left unattended outside a milk bar in Heyfield. Some minutes later your mobile telephone number registered on the Maffra Central mobile phone tower 17 km west of Heyfield. This activity relates to Charge 1 on the Indictment, being a charge of theft.
5At approximately 12:35 am on 28 July 2016, a grey/silver-coloured Subaru station wagon registration YZC 947, belonging to Ronald Elliot, was stolen by you and your co-offenders in this matter, Benjamin Aslin, Timothy Irwin and James McDonald. The Subaru was stolen from East End Panels,
McMahon Street, Traralgon. This relates to Charge 2 on the Indictment, also a charge of theft.6At approximately 1:55 am, also on 28 July 2016, the stolen white Ford Courier[1] and the stolen grey/silver Subaru[2] were driven to the United service station in York Street, Sale. The Ford Courier was reversed through the front glass doors, dislodging an automatic teller machine (ATM). Three males then entered the service station and lifted up the ATM, placing it in the rear of the Subaru before leaving the scene. The ATM contained $16,430 in cash. This activity relates to Charges 3 and 4 on the Indictment, being burglary and theft.
[1] Relating to Charge 1 on the Indictment
[2] Relating to Charge 2 on the Indictment
7You, along with your three co-accused, then drove to the Sale-Maffra Road, where the stolen white Ford Courier was dumped. Each of you used your mobile phones to communicate with one another during this episode of offending.
8The stolen Subaru containing the stolen ATM was driven to Higgs Road, Drouin. At this location the ATM was jemmied and smashed open and access was gained to the money contained therein.
9On 30 July 2016 you were located at your residence in Frankston. You participated in a record of interview, however you exercised your right to silence.
10This matter has a lengthy procedural history. You were charged with these matters on 3 October 2016. On 16 March 2017, you, through your legal representatives, made an offer to plead guilty to the charges for which you now fall to be sentenced. That offer was rejected by the prosecution in April of 2017. Therefore in the circumstances I regard your plea as an early one.
11Through no fault of your own, there were various delays which plagued the timely completion of the committal hearing in this matter. Ultimately all co-accused were not committed for trial until 1 December 2017. The trial was listed on 24 September 2018 in the Latrobe Valley circuit for pre-trial argument and rulings. You entered pleas of guilty on 26 September, consequent on the provision of pre-trial rulings by me.
12As already observed, there has been considerable delay in the manner in which this matter proceeded to trial. None of that delay could be said to be attributable to you or your co-offenders. In the circumstances, you now stand to be sentenced for offending that took place almost two and a half years ago. I take into account that in this period these matters have been unresolved and in abeyance.
13I also find the plea of guilty consistent with an acceptance of responsibility by you of your offending. Furthermore, it is a plea which indicates a willingness to facilitate the administration of justice.
14Before me you admitted your prior criminal history. Suffice to say that you have amassed a considerable history in relation to dishonesty offences involving burglaries, theft, theft of a motor vehicle and going equipped to steal. You have a lengthy history of involvement with community correctional services. This began in July 2009 when you were placed on a six-month Community-Based Order (CBO) with 100 hours of community work. You ultimately breached this CBO and were re-sentenced to three months' imprisonment. You have also been subject to parole orders in 2011 and 2014, which were both cancelled by the Adult Parole Board due to offending during the operational period.
15On 3 May 2010, in this Court, you were sentenced to a period of imprisonment of one year and six months for a range of offences including aggravated burglary and kidnapping. Furthermore on 23 November 2011 at the Ringwood Magistrates' Court, you were sentenced to a period of imprisonment of two years six months for a range of offences, including multiple burglaries, theft of a motor vehicle, and theft.
16You were granted parole on 14 November 2013, however some five months later parole was cancelled on 24 April 2014, when you were sentenced, again in the Ringwood Magistrates' Court, to 15 months' imprisonment. Ultimately you were not released until 17 April 2016. Some three months later you were involved in the commission of these offences in July of the same year.
17Subsequent to that you were admitted into custody on 15 August 2016 for offences including dangerous driving, theft of motor vehicle, handle stolen goods and theft. I am told that this offending spanned 25 April 2016 to 5 August 2016.
18On 3 November 2016 you were sentenced at the Dandenong Magistrates' Court to a period of imprisonment of two years for the matters referred to above.
19On 10 September 2018 you were released from custody and placed on bail in relation to these matters. Much of the thrust of the plea in mitigation on your behalf related to your efforts at reformation whilst on bail.
20In his eloquent and able plea on your behalf, Mr Allen of counsel relied upon the following significant steps that you have taken towards reversing your long-entrenched history of drug addiction.
21Firstly, the fact that you have found and maintained employment whilst on bail.
22Secondly, that you remained abstinent from drug use. In that regard,
Exhibit 4S was a bundle of urine screens from 14 September 2018 to 3 December 2018, which were all clear with the exception of your daily dosage of methadone in the first two.23Thirdly, the fact that you were residing with Ms Elizabeth Young, an old family friend, who is providing stable accommodation for you. Ms Young provided a letter in support of you, in which she described you as having matured and being dedicated to your work. She was also present at Court to support you. Her mother Megan Young also provided a character reference to the Court. From her observations of you from the last few months, she believes that you have turned a corner for the better.
24Fourthly, the fact that you achieved total compliance with your stringent bail conditions, including daily reporting, a strict curfew, and twice-weekly urine screens.
25Fifthly, the fact that you have not reoffended whilst on bail.
26Sixthly, the fact that you have taken responsibility for your offending and demonstrated remorse.
27And finally, that you have matured and are deeply motivated to reform.
28True it is that the objective and unchallenged evidence before me was that you had made substantial inroads on the path towards rehabilitation, however this is but one aspect of the sentencing exercise.
29At the time of the commission of these offences, when you were 26, you had already spent a large portion of your adult years incarcerated. Furthermore, you were remanded again on 15 August 2016, not long after the offending in this case, and remained in custody until you were granted bail on 10 September 2018. Assessment of your prospects of rehabilitation is a global exercise. Whilst there can be no doubt that your progress in the three months whilst on bail bears upon that assessment, I am mindful of the fact that Warren Simmons, consulting psychologist, was of the view that:
"Given Mr Smith's previous history of offending behaviour, his prospects for rehabilitation must be considered guarded."[3]
[3] Part of exhibit 2S
30Given your long-term battle with an amphetamine addiction and its nexus to your offending behaviour, rehabilitation is for you, as it is for many, a work in progress. Should you choose to continue along the path that you have commenced in the three months whilst on bail, no doubt any assessment to your prospects of rehabilitation would be elevated well beyond that of being guarded.
31Ultimately, the submission was made on your behalf that, in light of the considerable steps that you have made in aid of your rehabilitation, I should impose an entirely non-custodial disposition for these offences. It was contended that it would be contrary to the community's interest to return you to custody and thereby disrupt your course of genuine and productive rehabilitation.
32As I expressed in the course of the plea in mitigation, while this is a significant matter to your credit, rehabilitation is one of many prongs in the sentencing exercise. It is also in the community's interest that others are deterred from committing similar offences when such conduct is met with the imposition of a fitting disposition.
33This is serious offending, particularly as constituted by Charges 3 and 4 involving the burglary and subsequent theft of the ATM. This is conduct which in my view has a high degree of criminality, involving premeditation and considerable planning by you and your co-offenders, and the use of stolen vehicles in order to execute the most serious of the offending.
34While the community does have a vested interest in the encouragement of your rehabilitation, the other sentencing principles of general deterrence, specific deterrence, denunciation and protection of the community must be fully ventilated in the sentencing exercise.
35For these reasons, and as I made clear in the plea in mitigation, the more appropriate disposition in your case is a combined one involving a period of incarceration with release pursuant to a Community Correction Order.
36In arriving at this disposition, I have taken into account the totality principle. In particular, I have taken into account the fact that subsequent to the commission of these offences, you spent a period of two years in gaol.
37Furthermore, my view is that a combined disposition should not stymie your rehabilitative efforts, particularly in relation to the question of remaining abstinent from drugs.
38I was told that the time of the commission of these offences, you were enmeshed in the grip of a methamphetamine addiction. Indeed, much of the offending which has led you to serve considerable periods of time in custody has been motivated by your need to gratify your drug addiction.
39I turn now to your personal history. As already noted, you are now 29 years of age. You were born and raised in Upper Ferntree Gully until the age of three. At that time your parents separated and your mother raised you and your siblings on her own. Your upbringing was said to be chaotic and disengaged. There was financial stress as a consequence of the separation of your parents, and living arrangements were transient.
40At around ten years of age you were sent to live with your aunt, who was a strict woman. At that time you attended St Joseph's Secondary College in Ferntree Gully. You completed Year 7, however dropped out of school at the beginning of Year 8. You disclosed to psychologist Warren Simmons that you struggled academically at school.
41Your first interaction with the criminal justice system was when you were only 12 years of age. At around age 16 you commenced use of amphetamine, and by 17 you were introduced to methamphetamine. This rapidly developed into a severe addiction.
42According to Mr Simmons, your childhood left you vulnerable to substance abuse, particularly due to the fact that you were mixing with older peers. It is an addiction which has afflicted your daily life up until now. It was against the backdrop of drug addiction that your last three months whilst you were on bail were presented to me as somewhat exceptional. You are currently in receipt of a daily dosage of Suboxone to assist you in remaining abstinent from drugs.
43As for your employment history, it is exceptionally limited. This is not surprising, given that between 19 and 26 years of age you spent approximately 90 per cent of your life incarcerated. You have never married nor fathered any children. Whilst on bail you were working at a caryard in Dandenong. You have been working there three days a week, since you were released on bail.
44I received a letter on the plea in mitigation from Ms Linda Bond, the administration manager at the caryard.[4] She described you as an asset to the company and stated that you worked well in a team environment, and that you worked well with others. She described you as a good person, and more than willing to ‘give a hand’ when necessary. Overall, she described you as hardworking, reliable and respectful.
[4] Exhibit 3S
45You have been treated with antidepressants in the past, but you ceased this after a short period of time. You have had no major involvement with any mental health services. You have a long history of night terrors, and you told Warren Simmons that you had injured yourself on two occasions as a consequence.
46According to Mr Simmons, there is evidence to suggest that you may have suffered from Attention Deficit Hyperactivity Disorder (ADHD), although he did not describe this as a formal diagnosis. As a consequence of some difficulties in your memory and concentration, Mr Simmons recommended further exploration of your neuropsychological functioning. As a consequence of that, a further report was obtained on your behalf.
47In the course of that report,[5] Linda Scott, clinical neuropsychologist, opines that your neuropsychological profile is consistent with Attention Deficit Hyperactivity Disorder, as a result of which you suffer from various cognitive impairments. She states that your ADHD-related cognitive impairments increased the risk of reoffending, but notes that you have never received comprehensive support to manage the symptoms of this condition.
[5] Exhibit 5S
48The basic purposes for which a court may impose a sentence are punishment, deterrence (both specific and general), rehabilitation, denunciation and protection of the community. In sentencing you, I must have regard to a range of matters, such as the seriousness of the offending, your culpability for it, your personal circumstances, and those of the victim, if any.
49I am required to balance the interests of the community in denouncing criminal conduct with the interest of the community in seeking to ensure, as far as possible, offenders are rehabilitated and reintegrated into society.
50As already indicated, I propose to give effect to those principles here with the imposition of a combined custodial and non-custodial disposition.
51Please stand, Mr Smith.
52In relation to Charge 1, being a charge of theft, I convict and sentence you to a term of imprisonment of six (6) months.
53In relation to Charge 2, being a charge of theft, I convict and sentence you to a term of imprisonment of six (6) months.
54In relation to Charge 3, being a charge of burglary, I convict and sentence you to a period of imprisonment of six (6) months.
55I order that the sentences imposed on each of Charges 1, 2 and 3 be served concurrently with one another, making for a total effective sentence of six (6) months.
56In relation to Charge 4, being a charge of theft, I convict you and impose a Community Correction Order for a period of two (2) years with the following conditions:
· That you report to Dandenong Corrections within two working days of your release from custody and attend supervision appointments with them as required;
· That you participate in programs to reduce the risk of you re-offending;
· That you participate in programs directed towards treatment and rehabilitation for your mental health, and;
· That you participate in programs directed to drug treatment and rehabilitation.
· I also require you to appear before me for judicial monitoring, to update me as to your progress under the Order, on Friday 18 October 2019 at 9:30 am.
57Pursuant to s18(4) of the Sentencing Act 1991 (Vic), I declare 50 days' presentence detention, and I order that such declaration be noted in the records of the court.
58Pursuant to s6AAA of the Sentencing Act, were it not for your pleas of guilty I would have imposed a sentence of four (4) years with a non-parole period of two (2) years.
59In relation to Charges 1 and 2, being thefts of motor vehicles, and pursuant to s89 of the Sentencing Act, I order that all driver licences held by you be cancelled, and you are disqualified from driving for a period of 12 months from today's date.
60The applications for forfeiture and disposal are granted in the terms sought by the prosecution. I decline to grant the orders for compensation sought by the prosecution in relation the accused and each of his co-accused.
61You may be seated, Mr Smith.
Timothy Irwin
62I will now move on to Mr Irwin.
63Timothy Irwin, you have pleaded guilty before me to two charges of theft and one charge of burglary. Exhibit A on the plea in mitigation was the Summary of Prosecution Opening. I incorporate that document into my reasons for sentence.
64At the time of these offences you were 23 years of age. You are now 26 years of age. Before me you admitted your prior criminal history. While there are some relevant matters for the sentencing exercise today, I note that in comparison to your co-offenders in this matter, you have a significantly lesser criminal history.
65You are currently on remand. On 30 July 2018 you were remanded in custody for a range of offences including burglary, stolen goods and other dishonesty offences. I am told that you will be sentenced for these matters at the Heidelberg Magistrates' Court on 25 February 2019.
66In the lead-up to this offending, you had previously been sentenced at the Heidelberg Magistrates' Court on 21 September 2015 to a 12-month Community Correction Order for various charges, including matters of dishonesty and drug offences. Thus, the fact that you were on a Community Correction Order at the time of this offending constitutes a factor in aggravation.
67Approximately one month after the date of this offending on 27 August 2016, you were remanded in custody in relation to a number of offences, including burglaries and thefts. You were then released on bail in early November of 2016. However, you were remanded in custody again on 9 February 2017, in respect of further dishonesty offences. In respect of those matters you were then released on bail on 2 March 2017, yet you were remanded again into custody on 4 April 2017 in relation to charges of theft of motor vehicle and other matters.
68On 9 May 2017 you were sentenced at the Heidelberg Magistrates' Court to 160 days' imprisonment and released pursuant to a Community Correction Order. You were largely compliant with that Community Correction Order until March of 2018, when you failed to comply with your obligations for judicial monitoring pursuant to that Order. On 30 July 2018 you were remanded in custody as already observed, and you have remained in custody ever since.
69Your counsel made a submission based upon the totality principle. He submitted that I should take into account the fact that you have been in custody since July of last year. I note that on 21 September of last year your trial bail was revoked in relation to this matter. In sentencing you, I propose to take into account the period for which you have been in custody in relation to those unrelated matters.
70This matter has had a lengthy procedural history. You were charged on summons with this offending on 3 January 2017. Through no fault of your own, there were various delays which plagued the timely completion for all accused in the committal hearing of this matter. As a consequence, all co-accused were not committed for trial until 1 December 2017. The trial was listed on
24 September 2018 in the Latrobe Valley circuit for pre-trial argument and rulings. You entered pleas of guilty on 26 September consequent on the provision of pre-trial rulings by me.71While not an early plea, I take into account that it is a plea of guilty consistent with a desire to facilitate the administration of justice, and one that reflects some level of remorse. In that vein, I note the observations of clinical neuropsychologist Dr Linda Borg, who opines that you demonstrate good insight and appear to exhibit remorse for your conduct and its associated impact.[6]
[6] Exhibit 2I
72In June of 2017, you were the victim of a serious assault. This has had a profound effect on the direction that your life has taken. As a consequence of that assault, you now have an acquired brain injury. The injuries that you sustained included a fractured skull, bleeding on the brain, and anosmia (loss of sense of smell). Furthermore, since that incident you have experienced numerous cognitive difficulties. These include poor concentration, speech difficulties, as well as an unreliable memory.
73As to the details of that assault, you were punched to the left side of your face and you fell backwards. You were admitted into the Royal Melbourne Hospital Emergency Department on 4 June 2017. You then underwent inpatient rehabilitation at Royal Talbot Hospital from 7 June 2017 until the end of June. You were deemed out of post-traumatic amnesia on
19 June 2017.74However, on the positive side, Dr Borg is of the opinion that you have made a strong neurological recovery, and that your remaining cognitive deficits are mild to moderate in nature.
75Your counsel did not seek to make a Verdins submission based upon the existence of your acquired brain injury. However, he submitted that because of your acquired brain injury, the experience of prison for you may be made more oppressive than it would be for an individual not suffering from an acquired brain injury. Furthermore, Dr Borg provided the opinion that:
“An extended period of incarceration would prevent access for formal brain injury rehabilitation, which would be required to improve your function over time”.[7]
[7] Exhibit 2I
76You have been diagnosed with depression and anxiety. You told Dr Borg that you had been prescribed antidepressants prior to the assault in June 2017. You also saw a psychiatrist post the assault, who prescribed you the antidepressant Mirtazapine, for which you believe resulted in a significant improvement in your mood. You have had some prior experience of drug-induced psychosis, although you have never had an inpatient psychiatric admission. I note that the results from the urine screen[8] dated 11 September 2018 reveals that around this time, you were in receipt of antidepressant medication.
[8] Part of Exhibit 3I
77You have a history of drug abuse. You began using methamphetamine when you were around 19 years of age. Initially, you used the drug only on weekends. However in 2014, when you were around 21 - 22, your use escalated to almost daily. You told Dr Borg that around this time you were using approximately half a gram of methamphetamine per day.
78The submission was made on your behalf that you have not used drugs since being remanded into custody. In support of that contention, three urine screens were tendered on your behalf as exhibit 3I.
79I note that you have had one period of participation in a formal detoxification program in 2014 at Malvern Private, and that you have engaged in drug and alcohol counselling in the past. This activity bears out your level of insight to your drug-taking behaviour, as you did express to Dr Borg the following:
"I want to be clean and have a good life. I break my family's heart every time I come back here, I don't know why I relapsed."[9]
[9] Exhibit 2I
80Ultimately submission was made on your behalf that given your limited prior criminal history and relative youth at the time of this offending, you are an appropriate candidate for a combined disposition.
81Furthermore, given your insight and remorse, it was submitted that your prospects for rehabilitation were reasonable. As with each of your other co-accused, I had you assessed to determine your suitability for a Community Correction Order. I note that you were ultimately assessed as unsuitable for a Community Correction Order. The source of that adverse assessment lies in the matters to which I have already referred, being breach proceedings and fresh offending for which you will be sentenced on 25 February at Heidelberg Magistrates' Court. Be that as I may, I propose to impose, as I have with each of your co-offenders, a combined disposition in your case.
82I turn now to your personal circumstances. As already observed, you are 26 years of age. You were born in Victoria. You have two siblings, an older sister and a younger brother. Your parents separated when you were very young, at five years of age, and you lived with your mother post the separation. You have a supportive relationship with your siblings and your mother, but very limited contact with your father.
83I note that on the plea in mitigation there were no family members present to support you. You lived in the family home prior to being incarcerated. You have never married, nor have you fathered any children.
84You completed Year 12 at high school and began studying at university, focusing on agricultural science. However, unfortunately you ceased that endeavour. This was around the same time that your drug use began to escalate, and you just wanted money in order to support your drug habit.
85You did work in your father's business as a mill-hand and front-loader driver for about three years. Effectively you have not worked since May of 2018. As already observed, you perceive your family as remaining supportive of you. The intention is that you would live with your mother upon release from custody.
86As already indicated, despite the reticence of Corrections, I am of the view that you should be given another opportunity to comply with a Community Correction Order. Please stand, Mr Irwin.
87In relation to Charge 2 on the Indictment, being a charge of theft, I convict and sentence you to a term of imprisonment of five (5) months.
88In relation to Charge 3, being a charge of burglary, I convict and sentence you to a term of imprisonment of five (5) months.
89I order that the sentences imposed upon Charges 2 and 3 be served wholly concurrently, making a total effective sentence of five (5) months' imprisonment.
90In relation to Charge 4, being a charge of theft, I convict you and impose a Community Correction Order of two (2) years with the following conditions:
· That you report to South Morang Corrections within two working days of your release from custody and attend supervision appointments with them as required;
· That you participate in programs to reduce the risk of you reoffending;
· That you participate in programs directed to treatment and rehabilitation for your mental health; and
· That you participate in programs directed to treatment for your drug abuse and rehabilitation.
· I also require you to appear before me for judicial monitoring to update me on the progress under your order on 10 April 2019 at 9:30 am.
91Pursuant to s18(4) of the Sentencing Act, I declare a period of 204 days presentence detention, and I order that such declaration be noted in the records of the court.
92Pursuant to s6AAA of the Sentencing Act, were it not for your pleas of guilty, I would have imposed a sentence of four years’ imprisonment with a non-parole period of two years.
93In relation to Charge 2, being theft of motor vehicle, and pursuant to s89 of the Sentencing Act, I order that all driver licences held by you be cancelled, and you are disqualified from driving for a period of 12 months from today's date.
94As I have already indicated in relation to
Mr Smith, I decline to grant the compensation order sought by the prosecution. I make the orders for forfeiture and disposal in the terms sought by the prosecution. You may be seated, Mr Irwin.95Now, before I proceed to sentence Mr Aslin, I am going to ask both Mr Smith and Mr Aslin as to whether or not – first you Mr Smith - please stand up while I address you. Now, you understand that a Community Correction Order, you will be subject to that upon your release from prison?
96SMITH: Yes.
97HER HONOUR: And you understand the consequences of breaching a Community Correction Order?
98SMITH: Yes.
99HER HONOUR: That you can be brought back before me for sentence should you breach it, you understand that?
100SMITH: Yes Your Honour.
101HER HONOUR: And you consent to having the Order imposed upon you?
102SMITH: Yes.
103HER HONOUR: All right, very well. You can be seated and I will just address Mr Irwin. Mr Irwin, now, you understand that you are going to be released pursuant to a Correction Order?
104IRWIN: Yes.
105HER HONOUR: And you understand what the consequences are of a breach of that Correction Order?
106IRWIN: Yes.
107HER HONOUR: That you can be brought back before me for sentencing should you breach the Order?
108IRWIN: Yes.
109HER HONOUR: And with that, you consent to having the Order imposed upon you?
110IRWIN: Yes.
111HER HONOUR: All right, very well, you may be seated. Now, I will ask
Mr Allen and Mr Lavery to approach the dock with the Orders so they can be signed.112COUNSEL: As Your Honour pleases.
HER HONOUR:
Benjamin Aslin
113Yes, Benjamin Aslin. You have pleaded guilty before me to two charges of theft and one charge of burglary. Exhibit A on the plea in mitigation was the Summary of Prosecution Opening. I incorporate that document into my reasons for sentence.
114At the time of these offences you were 32 years of age, you are now 34 years old. Before me you admitted your prior criminal history. There are a number of relevant matters for the sentencing exercise today.
115You are currently undergoing a sentence of imprisonment. On 29 September 2016 at the Dandenong Magistrates' Court, you were sentenced to a period of three years' imprisonment, with a non-parole period of two years' imprisonment. Pursuant to that sentence you were eligible for parole on 7 November 2018.
116According to the Corrections’ assessment before me, you have applied for parole and that decision is pending. The sentences imposed on that day were for a number of charges, including robbery, theft of motor vehicle, false imprisonment, reckless conduct endangering serious injury, drive in a manner dangerous, resist police and possess drugs.
117You have been in custody since 2 August 2016 in relation to the aforementioned matters. In imposing my ultimate disposition, I take into account the fact that were it not for these matters, you may well have been released pursuant to parole according to the current sentence. Your counsel also made a submission arising from the totality principle urging upon me a disposition that accounts for the fact that you have been in custody since August 2016. In arriving at my disposition, I have taken into account those matters that were put before me.
118A review of the chronology provided as part of Exhibit 1A reveals that you have, in essence, spent much of your adult life in and out of gaol. In January of 2016 you were remanded into custody in relation to possession of drug offences. In June of the same year at the Dandenong Magistrates' Court, you were sentenced for a number of offences, including traffick amphetamines, possess cannabis, use drug of dependence, possess a controlled weapon, and deal with proceeds of crime.
119An eight-month Drug Treatment Order (DTO) was imposed upon you that day, and you were eventually released on 5 July 2016. Some two weeks later on 18 July 2016 you were remanded into custody and again sentenced at the Dandenong Magistrates' Court to a period of seven days' imprisonment.
120You were then released on 24 July 2016. In the period leading up to this offending, your methamphetamine use had escalated to a daily usage of around 1.7 grams per day. Only four days after your release on 24 July you were involved in this serious offending.
121You entered pleas of guilty to the matters on the Plea Indictment on
24 September 2018. This was subsequent upon pre-trial rulings delivered by me. While it is a late plea I accept that the plea is consistent with a desire to facilitate the administration of justice and with an acknowledgement of your responsibility for this offending.122This submission was made that your extensive criminal history largely relates to drug-related offending and offending committed in order to obtain money to support your drug habit.
123Insofar as your prospects for rehabilitation are concerned, it was contended that you have had periods of compliance with Drug Treatment Orders, having successfully completed a program on 2 May 2011.
124Furthermore, it was contended that you have positively engaged with many programs whilst you have been in custody. To that end, exhibits 3A through to 6A on the plea were various certificates that bear this contention out. You have completed the Positive Lifestyle program, the Safer Living program, and furthermore exhibit 4A indicates that you have completed the 40-hour Sustaining Change program whilst in prison.
125Exhibit 7A was also tendered on the plea. These were results of urine screens from the period that you have been in custody and covered a lengthy date range of 16 August 2016 to 14 December 2018. These results indicate that you are currently in receipt of methadone, and also on antidepressant medication. You receive a daily dosage of 30 mg of Mirtazapine.
126Put simply, while it is true that you have spent a considerable amount of your adult life incarcerated, it was submitted that you were an appropriate candidate for a combined disposition. To that end, I had you assessed for a Community Correction Order, for which you were deemed suitable.
127The submission was also made on your behalf that you have a health condition which makes incarceration more burdensome than would be the case for an ordinary inmate. You suffer from recurrent deep vein thrombosis (DVT). When you were 17 you were a passenger in a car accident, which resulted in a crushing injury to your leg. Two months following that accident, you suffered a blood clot in your left leg. At the age of 24, you suffered another significant blood clot in the same leg. An ultrasound conducted on 23 August 2018, confirms that you have chronic venous ulcers. These ulcers require almost daily dressing by nursing staff, and I am told that a notation on the Justice Health file from 1 January 2018 confirms that the ulcerations on your legs have increased compared to six months ago, and that the wounds are not healing, although I note that they are, thankfully, not infected.
128You have been advised that there is a risk that you could develop diabetes due to your high BMI. The development of diabetes combined with your DVT could result in a double leg amputation. I accept the submission made on your behalf that your health condition makes the experience of incarceration more oppressive than it would for somebody not labouring under that condition.
129Insofar as your medications are concerned, you currently take a blood thinner, Pradaxa, 150 mg every morning and evening. As already noted, you are in receipt of an antidepressant for your depression and anxiety. Furthermore, you are in receipt of a daily dose of methadone. You are currently receiving 70 mL a day, with an aim to reducing this to 30 mL upon release, when you plan to transition to alternative pharmacotherapy in the community with the support of a treating GP.
130I turn now to your personal circumstances. You are now 33 years of age. You were born in Springvale and raised in Frankston and Carrum Downs. Your parents, who are still together, live in Pakenham. You have an older brother, Steven, and a younger sister who died of a heart attack when she was 40. Apparently you have a good relationship with all members of your family.
131You have had two significant relationships in your life, one with a woman by the name of Kara Schoenmakers from between the ages of 18 to 23. The second, with Laura Ashton, from 23 to 31. You and Ms Ashton have a son together, Tyler, who is now seven. Your son has been visiting you in custody twice a month, although I note that you are quite concerned that he has suffered academically and psychologically due to your large absences in his life while you have been in prison. You have expressed a desire to resume your relationship with him upon your eventual release from custody.
132You were educated to Year 10 at Karingal Park Secondary College. Upon leaving school, you commenced a mechanics course at TAFE and over the next few years did some casual labouring jobs. At 17, you commenced a floor and wall-tiling apprenticeship in Seaford, and you completed your TAFE requirements at Holmesglen College in Chadstone after four years.
133At the age of 20, you began your own tiling business. However, unfortunately, at the age of 22 your amphetamine use intensified and escalated up to the age of 24, when your drug use became chronic. At that time you were spending up to $1,000 a day on amphetamines. Not surprisingly, as a result of that, you lost your business, car and your house.
134In February of 2009 you were remanded into custody for the first time at the age of 24. This offending involved an attempted theft by attempting to steal cash from a Chubb Security van. You were dealt with in this Court in February of 2010, wherein you were sentenced to 15 months' imprisonment with nine months of that sentence being suspended for two years.[10] From that time onwards the longest period of freedom that you have had appears to be from August 2010, when you were released pursuant to that sentence, and July of 2014.
[10]DPP v Aslin [2010] VCC 294
135As already noted, you have undertaken a number of courses whilst you have been in custody. It is very much to your credit that you have clearly exploited the opportunities available to you in order to augment your personal rehabilitation.
136Ultimately the submission made on your behalf was that despite your extensive criminal history, you were an appropriate candidate for a combined custodial and non-custodial disposition. The prosecution accepted that this disposition was available in your case, as it was in all of your co-accused’s cases. Given that concession, I am minded to impose a combined custodial and non-custodial order upon you.
137Please stand, Mr Aslin.
138In relation to Charge 2 on the Indictment, being a charge of theft, I convict and sentence you to a period of imprisonment of five (5) months;
139In relation to Charge 3, being a charge of burglary, I convict and sentence you to a term of imprisonment of five (5) months.
140I order that the sentences imposed on Charges 2 and 3 be served wholly concurrently, making for a total effective sentence of five (5) months' imprisonment.
141In relation to Charge 4, being a charge of theft, I convict you and impose a Community Correction Order of two (2) years with the following conditions:
· That you report to Pakenham Corrections within two working days of your release from custody and attend supervision appointments with them as required;
· That you participate in programs designed to reduce the risk of your reoffending;
· That you participate in programs designed to attend to medical issues and rehabilitation for your physical health;
· That you participate in programs designed to treat and rehabilitate your mental health; and
· That you participate in programs designed to address your drug abuse and rehabilitation.
· I also require you to appear before me for judicial monitoring, to update me on your progress under the Order, on 18 October 2019 at 9:30 am.
142I make no declaration under s18(4) of the Sentencing Act.
143Pursuant to s6AAA of the Sentencing Act, were it not for your pleas of guilty, I would have imposed a sentence of four (4) years' imprisonment with a non-parole period of two (2) years.
144In relation to Charge 2, being theft of motor vehicle, and pursuant to s89 of the Sentencing Act, I order that all driver licences held by you be cancelled, and you are disqualified from driving for a period of 12 months from today's date.
145As already indicated, I decline to grant the compensation order sought by the prosecution. I make the orders for forfeiture and disposal in the terms sought by the prosecution.
146You may be seated, Mr Aslin, and I think we are going to arrange for a document to be signed for you. Is there an officer there with a Correction Order document for Mr Aslin to sign?
147PRISON OFFICER: Yes, Your Honour.
148HER HONOUR: Yes, could you please – just before that is done, insofar as the signing – Mr McLoughlin, was Mr Aslin spoken to about the prospect of the Oorder at some stage so he understands?
149MR McLOUGHLIN: Yes, not by me, but by Ms Smith, yes.
150HER HONOUR: But by Ms Smith, so he understands the consequences of the Order and consents to that?
151MR McLOUGHLIN: Yes.
152HER HONOUR: Yes, very well. So please could you assist Mr Aslin in signing that Order.
153PRISON OFFICER: The order is signed.
154HER HONOUR: All right, very well. Now, Mr Aslin, just so you appreciate – you understand the consequences of a breach of the Order, you can be brought back before me for sentencing?
155ASLIN: Yes.
156HER HONOUR: All right, very well, and it has been explained to you by your counsel?
157ASLIN: Yes.
158HER HONOUR: All right, very well. Yes, thank you, we can cut the link for Mr Aslin. Yes, Mr Pickering, is there anything arising from the orders?
159MR PICKERING: Nothing further, Your Honour.
160HER HONOUR: All right, very well. Yes, thank you, we will adjourn to 11 o'clock.
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