Director of Public Prosecutions v Starkey & Pettit
[2024] VCC 777
•30 May 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case Nos. CR-23-01390
CR-23-00902
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HAYDEN STARKEY DAVID PETTIT |
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JUDGE: | JUDGE DAWES | |
WHERE HELD: | Ballarat and Melbourne | |
| DATE OF STARKEY'S PLEA HEARING: DATE OF PETTIT'S PLEA HEARING: | 25 January, 16 May 2024 1 May 2024, 16 May 2024 | |
DATE OF SENTENCE: | 30 May 2024 | |
CASE MAY BE CITED AS: | DPP v Starkey & Pettit | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 777 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Burglary – trespass – theft of firearms – possess traffickable quantity of firearms
Cases Cited:R v Verdins [2007] VSCA 62; Markovic v the Queen [2010] VSCA 105; Boulton v The Queen (2014) 46 VR 308
Sentence: STARKEY: 2 years 6 months imprisonment
NPP 1 year 6 months
PETTIT: 4 months imprisonment + CCO
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APPEARANCES: | Counsel | Solicitors |
| For the DPP (Starkey) For the DPP (Pettit) | Mr D. O’Doherty (plea) Mr D. Hannan (plea) | Office of Public Prosecutions Office of Public Prosecutions |
| For the Accused Starkey For the Accused Pettit | Mr N. Rudston Ms A. Hancock | Adrian Paull Criminal Lawyers Slades & Parsons |
1Hayden Starkey and David Pettit, you have pleaded guilty to the following offences that were committed on 29 July 2022 when you were 27 and 34 years of age respectively:
CHARGES
OFFENCE
MAXIMUM PENALTY
Charge 1
Burglary
10 years’ imprisonment
Charge 2
Theft of firearms
15 years’ imprisonment
Charge 3
Theft
10 years’ imprisonment
Related Summary Offences
Trespass
25 penalty units or six months imprisonment
2David Pettit, you have pleaded guilty to an additional charge on the same date, namely
CHARGES
OFFENCE
MAXIMUM PENALTY
Charge 4
Possess traffickable quantity of firearms
10 years’ imprisonment
3The circumstances of your offending have been provided in separate prosecution openings which are agreed to be accurate accounts of the events. A general summary of the facts is as follows:
4At approximately 4.10 am on 29 July 2022 you, Starkey, and you, Pettit, attended a rural premises in Blampied. You briefly entered a shed, looked around and left without stealing anything.
5Shortly afterwards, you both attended a residential property approximately three and a half kilometres away. You entered the unlocked double garage which was located next to the house.
6Once inside, you observed a locked gun safe and found the key inside a nearby cabinet. You used the key to open the safe and took assorted ammunition and all seven firearms, namely:
· Miroku 12 gauge breakopen shotgun;
· Tikka T3 bolt action centre fire rifle;
· Tikka T3 varmint stainless bolt action centre fire rifle;
· CZ ZKM 452 bolt action rim fire rifle;
· Sako 75 bolt action centre fire rifle;
· BRNO ZKM 452 bolt action fire rifle;
· Norica 56 air rifle.
7Police commenced an investigation into this matter. Search warrants were executed at each of your addresses on 27 September 2022. You were both arrested and conveyed to the Ballarat police station. Pettit, during the search of your address, five of the stolen firearms were located in the bedroom of your older brother, Wayne Scott.
8When you, Starkey, were interviewed you said that you could not recall attending at the address as you went on a 'bit of a bender’ with ‘the boys' after recently being released from gaol.
9During a break in the interview you were placed in the cells with two covert operative police. You told them that you had stolen about 10 firearms in a burglary about one month ago, that they were kept at the home of your co-offender and that some of them had been sold.
10However, when the interview resumed you reiterated that you could not remember anything about the burglary.
11When you, Pettit, were interviewed you said that you and your brother were out metal detecting about one to two weeks ago. You found the guns in a plastic bag next to a burnt-out car in the bush. You said that you did not know where they had come from. You had nothing to say when you were told that they were stolen. You were shown data that identified your mobile phone at the relevant location on the night of the offending and said that your phone had recently been taken by a friend.
12You were also placed in the cells with two covert operative police and repeated your false account. You said that your phone had been in a mate's car which was why it was located in the area where the guns were stolen. You provided a DNA sample to the police. Your DNA was subsequently identified on the key to the ammunition box that was left behind at the scene of the burglary. A text message was also sent from your phone to Starkey at 4.11 pm on 29 July 2022, which stated: 'I'm keeping the 12 g, but hopefully sell some of the avers bro k'. While you agree that the message came from your phone, you do not admit that you sent it.
13The offending here is serious, particularly as it includes the theft of firearms. I accept that both of your counsels' concessions in this regard were sensibly made. The offences were committed at night, in the company of each other. This was not opportunistic offending and the value of the stolen items was not insubstantial. Two of the stolen firearms remain unrecovered.
14A victim impact statement has not been provided. There is no information about any residual effect of your conduct. For the owners to discover that you had been inside their property and to have their firearms and ammunition stolen, must have been extremely annoying, frustrating and perhaps distressing.
15You were both remanded into custody on the date of your arrest, 27 September 2022. You, Starkey, have remained incarcerated since that time. You, Pettit, were released on bail on 1 February 2023 and served 128 days PSD.
16This matter was first listed for a contested committal on 29 May 2023 and you, Pettit, pleaded guilty on that date. Your committal, Starkey, was adjourned and relisted on 14 August 2023. Your case resolved and you entered a plea of guilty on that date.
17The parties agree that your pleas of guilty were entered at an early stage and are highly valuable. You have saved the court and the community the time and expense of running a trial. It facilitates the efficient administration of justice and you are entitled to a benefit for that. The utilitarian benefit of your plea is to be enhanced by the fact that the Worboyes[1] considerations were engaged at the relevant time. This results in a more pronounced amelioration of sentence than at another time. Your pleas of guilty also demonstrate that you have now accepted responsibility for your offending.
[1] [2021] VSCA 169.
18When you were remanded you were both subject to 14 days' quarantine, due to measures taken by Corrections to manage the Covid-19 pandemic. This added to your hardship in custody and I take that into account.
HAYDEN STARKEY- Personal circumstances
19You have a relevant and lengthy criminal history as an adult, dating back to 2015. Your cases were dealt with in the summary jurisdiction on nine separate occasions; all but one appearance included a broad consolidation of offences. You have previously been sentenced to numerous terms of imprisonment, the most lengthy period being 18 months with a non-parole period of 12 months, imposed in 2019. You have prior convictions for offences of dishonesty (including burglary, theft and aggravated burglary) violence and driving related offending, as well as being in possession of a firearm and an imitation firearm. On 14 June 2022, you were convicted of matters of dishonesty and sentenced to seven months' imprisonment. You were released from custody on 1 July 2022, four weeks prior to the current matter.
20On 8 May 2023 a summary jurisdiction application for outstanding unrelated matters was granted and you received an aggregate sentence of 223 days' imprisonment. On 31 May 2023 you were sentenced for another offence to a concurrent sentence. You have served these sentences while on remand for this matter. Your current pre-sentence detention is 337 days.
21I turn now to your personal circumstances. You were born in May 1995 and are now 29 years of age. You are not currently in a relationship. You have a 10 year old son from a previous relationship and are the stepfather to your former partner's daughter who is now aged eight years. You did not see your son for many years as a result of an intervention order that was taken out against you. You have recently seen him for the first time in seven years, on link while in custody.
22Your mother currently resides in Mildura and is terminally ill with cancer. You have maintained a difficult relationship with both your parents. They separated before you were born. You initially resided with your mother in Western Australia. When you were 22 months old you went to live with your grandmother, before you moved in with your father. You moved back to live with your grandmother before you were sent back to your mother when you were five years old.
23Your mother's home environment was subjected to appalling conditions. Your mother abused drugs and worked in prostitution. You were introduced to the use of cannabis at the age of eight. You were physically assaulted by your mother's partner and have recently disclosed that you were sexually abused by several adults, including another one of your mother's partners and his son. You also observed people suffering from drug overdoses and extreme violence while in your mother's care. Your mother had two older sons, one of whom was killed in a motorbike accident in 2004, which further destabilised your circumstances.
24At around the age of 12 years you returned to Queensland to reside with your grandmother and spent some time with your father while you were there. Your relationship with your father was difficult as he was often angry with you. You ended up being homeless after being briefly sent back to your mother. Your education throughout the time was disrupted by your numerous changes in accommodation. You are unsure whether you completed Year 8 or Year 9 at school.
25Social workers were involved in your care in both Western Australia and Queensland. You engaged in criminal offending from the age of 14 years. You were in and out of the juvenile justice court where you received a range of penalties including detention. You also held intermittent periods of employment working as a labourer, undertaking fencing and on a cattle station in Queensland.
26At the age of 17 you returned to Victoria and resided with your mother near Ararat for around a year and a half. Your partner at the time became pregnant and you moved to Beaufort and worked in a butcher's shop. You subsequently worked for around 12 months in a factory in Ararat and then obtained concreting and panel beating work in Horsham. It was around that time you began to experiment with methylamphetamine. In 2015 the traumatic murder of a close friend significantly affected you. You had commenced employment as a labourer at a plastering and insulation business in August 2022, shortly prior to your current incarceration.
27In the past you have been dependent on drugs and alcohol. You have a history of polysubstance abuse, including cannabis, LSD, GHB and methylamphetamine. Your use of unprescribed medication, including Buprenorphine, Tramadol, Xanax and Pregabalin all occurred prior to the current incident. You told the police you were on a 'bender' at the time. I am told that your partner was also a problematic drug user and that relationship has ended. It appears that your criminal history is drug related. You are now in enforced remission while in custody and have provided the results of a recent, clean urine sample.
28During your current incarceration, you have regularly undertaken and completed a number of educational and vocational courses. You have forced yourself to maintain a routine by doing daily work as a billet.
29At the request of your solicitor, you participated in a psychological assessment on 30 November 2023, undertaken by Mr Jeffrey Cummins. In a report prepared for the court dated 18 January 2024, Mr Cummins provided an account of your personal history and mental health background. In his opinion it was very difficult to follow your account of your childhood and adolescent years. You appeared to provide contradictory information and acknowledged that your memory for these events was not necessarily accurate.[2]
[2]Paragraph 9
30Mr Cummins outlined your account of a challenging upbringing. He was told that you were diagnosed with ADHD and oppositional defiant disorder when you were very young. In his view you presented as someone with a complex trauma history, although the history you provided at interview was not consistent with suffering from ADHD as an adult.
31Mr Cummins' opinion and conclusions are:
· At the time of offending you intermittently used and were dependent on methylamphetamine. You did not accept that you had been addicted to methylamphetamine on a long-term basis, although you stated your goals include undergoing residential drug rehabilitation upon your release from custody.[3]
· He diagnosed you with a mixed personality disorder, including elements of an antisocial personality disorder and a borderline personality disorder, as well as complex post-traumatic stress disorder (PTSD).
· In relation to your history of mental health and trauma, it appears that you abused substances as a way of self-medicating. There has been a genuine nexus between your offending behaviour and suffering from various mental health conditions and reliance on various substances. In his view, it would be unrealistic to attempt to unravel the nuances of these interactions.[4]
· You presented as a psychologically vulnerable person. Your prognosis, in terms of further offending, is very guarded. You are at a very significant risk of returning into a custodial setting and ultimately becoming institutionalised.
· However, you have now reached the time in your life and a level of maturity where you are motivated to receive and make constructive use of mental health treatment.
· In light of your mental health symptoms, in particular symptoms of complex PTSD, these would be exacerbated the longer the time you spend in custody.
· I note, however, that you told Mr Cummins: 'When I am in jail I feel I have some structure and I cope okay with being in jail. When I am out of jail I drift back into using Ice and then as soon as I start using Ice again, I start hearing voices and sometimes these voices tell me to do stupid things.'[5]
· It is unlikely you would receive the requisite mental health treatment while incarcerated. Spending more time in custody would be more onerous for you.
· Your ability to form comprehensive remorse is limited by virtue of your history of traumatisation and current mental health diagnosis. You were regretful and remorseful in relation to the offences to which you have now pleaded guilty.
· I note that this is not consistent with an earlier part of the assessment. You told Mr Cummins: 'I didn't steal the firearms but I've been told I have to plead to that charge because I have seen them and I'd been asked to see if I could sell any firearms'.[6] Your counsel states that you now admit your offending conduct.
[3] Paragraph 43.
[4]Paragraph 47
[5]Paragraph 31
[6]Paragraph 34
32Your counsel has submitted Limbs 1, 5 and 6 of Verdins[7] are applicable here. The prosecution does not agree with this submission.
[7] R v Verdins [2007] VSCA 62.
33The first limb of Verdins does not apply to impaired mental functioning caused substantially by self-induced drug abuse. I consider that your moral culpability was likely compromised by your drug use at the relevant time. I am unable to disentangle the mix of drug use from any potential mental health issues. I am not satisfied that this first limb of Verdins is applicable here. There is insufficient evidence to indicate that your offending was causally connected to mental illness or impaired mental functioning rather than to consumption of drugs.
34I also have concerns about Verdins Limbs 5 and 6. Notwithstanding Mr Cummins' view that time in custody would be more onerous for you because of your mental health issues, your frank disclosure to Mr Cummins at paragraph 31 is at odds with this submission. Further, I am not satisfied there is sufficient evidence that your mental health symptoms would be exacerbated the longer the time you spend in custody. You now engage in programs, as well as work seven days per week. Your mental health seems to have been stable after 20 months in custody. I am not satisfied that your circumstances are relevant considerations for Verdins’ principles.
35At the initial plea hearing, your counsel submitted that the principles of Bugmy v R were applicable in your case. The prosecution also challenged this submission. The plea was adjourned, part heard, in order to provide other objective evidence to support this position.
36A plethora of material has now been provided from the Department of Communities, Child Protection and Family Support division, Western Australia, and the Department of Child Safety, Seniors and Disability Services, Queensland.
37In the child protection documents your counsel relied on material noted by a social worker that you 'bounced back and forward' between your father, mother and grandparents.[8] 'Each party has forwarded Hayden on when his behaviours have become too difficult for them to deal with. They have quite readily told Hayden this and threatened with sending him on if he doesn't behave. None of the parties seem to have any great understanding of how this would affect Hayden'. In her opinion, it resulted in a 'very direct link to the life you have led'.
[8] Subpoenaed material from Department of Communities, Child Protection & Family Supports, p363.
38When you were 14 years of age you were assessed as being 'exposed to an early history of extreme domestic violence between mum and dad. The mum is a serious drug user. Hayden has gone from one family placement to another. Grandmother cared for him on and off over the years. Hayden has experienced years of rejection. Dad can't have Hayden because he works on the mines. Also lived with father and uncle in Mackay, which didn't last. Also lived with his grandfather. Hayden went to live with different families. Mother does not want to care for him, father is no longer willing to care for him, grandmother not willing to care for him. Hayden will have nowhere to live as no family or friend can continue caring for him.'[9]
[9] Ibid p25 (18 February 2010).
39When you were 15, the records stated: 'Father and stepmother don't want him back in the home as his behaviours are too difficult to handle.[10] Father and child have been violent towards each other which resulted in a 'punch up'.[11] Your father stated: 'If my boy can't do what I ask him to do he can fuck off…'[12]
[10] Ibid p32.
[11] Ibid.
[12] Ibid, p60.
40It also outlined: 'The child's basic necessities of life are unmet by his parent to such an extent that the child's health and development are affected, causing harm or an unacceptable risk of harm to the child: abandonment/relinquishment. Hayden's father and stepmother are not prepared to have Hayden released into their care. This leaves the child without a parent to make reasonable ongoing arrangements for his care.'[13] On 20 July 2010 it was noted that 'a magistrate is only keeping Hayden in detention because parents won't care for him.'[14]
[13] Ibid, p38.
[14] Ibid, p63.
41Further, 'Has a parent failed to protect the child from physical abuse, sexual abuse, emotional abuse or neglect by others, and this failure to protect the child from abuse or neglect has led, or could lead, to the child being seriously harmed? Yes'.[15]
[15] Ibid p51 (27 August 2010).
42Your grandmother remains supportive of you and has written a letter to the court saying that you have always been 'a troubled soul'. She describes that when you were five years old you had two older brothers who lived with your mother. You were abused by them, where they burnt you with cigarettes and on one occasion left you tied up in a net on a tree all day. You came to stay with your grandmother on school holidays and did not return home as Children Services were unable to locate your mother at the time. In 2004, your grandmother was trying to access your legal custody but you went back to live with your mother until you ran away. You then went to live with your father which did not work out either. She describes that one time he did not like your behaviour and so he burnt your new sneakers. Your grandmother was once told by a social worker that you suffered from parental alienation syndrome and PTSD. She writes that her son was 'never a good father' and that you mother 'was worse'.
43Your former stepmother has also written to the court on your behalf. She describes that you did not have the presence of your mother or father in your life, as there was nothing but 'negativity' and 'verbal and physical abuse' towards you. You have never had a stable home to rest your head which she believes has led you down the wrong path.
44Your counsel has maintained the submission that your disruptive and dysfunctional youth is a significant factor to be taken into account. Your early exposure to drug use, instability and neglect has had a significant impact on you that is ongoing and enlivens the principles of Bugmy.
45The prosecution still disputes this submission, saying it is unrealistic. You had the good fortune of support from your grandmother and father during your formative years, as well as the benefit of authorities trying to manage your lifestyle. Despite the available support, you have created your own unfortunate circumstances as you absconded many times and engaged in criminal conduct from an early age. The prosecution does not agree that your circumstances are the product of a toxic environment.
46After reading the material, I am satisfied on balance that the principles of Bugmy v The Queen are enlivened in your case. Your childhood was difficult and dysfunctional. Your early exposure to drug use, abuse and instability created a vicious cycle which has had an ongoing effect throughout your life. It has a direct relationship to your offending and a significant role as a mitigating factor in your sentencing considerations. Your moral culpability should be reduced accordingly. The principles of deterrence, denunciation and just punishment should also be moderated, although they are still relevant and should not be eliminated entirely. This is counterbalanced, however, by the need for community protection, which remains a relevant sentencing consideration, particularly in light of your criminal history.
47It appears that you are now showing some insight and accept that you require treatment upon your release. You accept that you need to stay away from criminal associates and intend to move to Benalla, where your son currently resides. You also have the opportunity to return to employment with the same business of plastering and insulation. You now medically receive Buprenorphine via injection, rather than illegally misusing it. You will apply for assistance through the NDIS and seek access to a mental healthcare plan for counselling upon your release. In a letter that you recently prepared for the court, you acknowledge that you are ashamed of your previous lifestyle choices and have an 'overwhelming urge' to make up for what you have done.
48A friend and your brother have provided letters to the court. You have remained in contact and have apologised to them, acknowledging your regret for your offending and former lifestyle. You believe that the courses you have undertaken in custody will assist you, although you would like to access drug rehabilitation upon your release. Your former partner has also written to the court, confirming that she will encourage the return of your relationship with your son now that you are prepared to improve your lifestyle.
49After reading the references, it is clear that you have support to establish a better life. You are most fortunate in that regard. It is submitted on your behalf that you have shown remorse and regret for your misconduct. Clearly this was not immediate but I am satisfied that it is now shown and is consistent with your early plea of guilty. I am prepared to moderate your sentence to reflect that.
50In light of your lengthy criminal history, I consider that your prospects for rehabilitation are guarded but otherwise more reasonable than in the past. Given your compliance with current conditions in custody and access to support and treatment, I hope that you are likely to have a real chance of accessing supervised release on parole as soon as it is available. It is conceded that your offending warrants a term of imprisonment.
DAVID PETTIT - Personal circumstances
51You have admitted your criminal history, being 19 previous appearances in the summary jurisdiction between March 2008 and April 2020. You have prior convictions for numerous offences including dishonesty, violence, criminal damage, driving matters and possession of prohibited weapons. You have no criminal history that relates to firearms. The current incident demonstrates an escalation in the seriousness of your offending.
52You have been sentenced to imprisonment in the past, the most lengthy period being six months in the most recent sentence that was imposed in combination with a community correction order (CCO) in April 2020. You have also received suspended sentences, an intensive correction order and a number of CCOs, most of which were completed. Five of the CCOs involved therapeutic conditions for drug use and mental health so that you could address your rehabilitation in the community. The most recent CCO was imposed for 15 months. You completed the order and did not reoffend for another 15 months. Regrettably, it appears that you did not derive sufficient benefit from your compliance as you relapsed into illicit drug use prior to the current offending. You were in a relationship with another drug user at the time. Your relationship has now ended and you no longer have contact.
53Your offences were committed on 29 July 2022. You have no subsequent criminal matters and no charges pending. You have been the subject of strict bail conditions for over 15 months, including a curfew, residential condition, reporting to police three days per week, random drug testing and not to go within the city of Ballarat where your daughters currently live. You were also subject to CISP for 19 weeks and successfully completed the program in May 2023. These conditions may have assisted you in your rehabilitation, yet they also amount to a substantial imposition on your liberty and are a form of punishment already occasioned.
54I turn now to your personal circumstances. I do take your background into account as part of your general circumstances.
55You were born in April 1988 and are now 36 years of age. You had a younger sister who died as an infant. Your parents separated when you were two years of age. You were raised between your father's house in Dandenong and your mother's house in Ballarat. You also stayed with your mother in Queensland for a brief period while you were in primary school.
56At the time of the current offending, you had the care of your children and lived with your mother and Wayne Scott. You have 17 half-siblings and remain in contact with most of them through Facebook. You currently live with and care for your father, who has emphysema.
57Your childhood was turbulent and you reported feeling like the 'black sheep' in your family.[16] Both of your parents smoked cannabis. Your father was an alcoholic who became violent towards you when you misbehaved. You state the reason you moved between homes so frequently was because neither parent could handle your behaviour.
[16] Psychological report of Gina Cidoni paragraph 20.
58You attended multiple schools. You became increasingly truant as you began mixing with the 'wrong crowds'. You were diagnosed with ADHD as a child and you felt this impacted your academic performance. You received a teacher's aide in senior school and eventually left part way through Year 10. You have had issues with gambling since the age of 18.
59At the age of 11, you were diagnosed with epilepsy and suffered frequent seizures. You have not suffered a seizure since you were 16 years old. You were placed on medication which you ceased taking when you were 25. As a result of this diagnosis, you have been in receipt of a disability support pension. You have also worked intermittently in various unskilled positions, including labouring, plastering and roof tiling. You have been unemployed for several years since the birth of your first daughter.
60You have previously consumed alcohol but it has not caused problems for you. You first used cannabis at the age of 13, and your use quickly became excessive. You began to use other illicit drugs, including methylamphetamine and ecstasy, at the age of 18. Between the ages of 22 - 30 years you would smoke 1-2 grams of methylamphetamine daily. I am told that you were subject to the use of methylamphetamine at the time of the current offending, as well as when you were arrested. You have remained drug free since being released on bail for these offences.
61You have had three significant relationships. Your first partner committed suicide when you were 18 years of age. Your next relationship ended after five years, when you were incarcerated. Your most recent relationship resulted in the birth of three daughters. In 2023, you learnt that you are not the biological father of the youngest child.
62Your father has written a letter to the court. I am told that he is now sober. He writes that you acknowledge what you have done is wrong and realise how it has affected your children and their future. I will refer to your daughters' significant issues that have arisen since you were arrested in a moment. Although not immediate, you have expressed remorse for your misconduct. Your guilty plea is consistent with remorse, and I am prepared to moderate your sentence to reflect this.
63At the request of your solicitor, you participated in a psychological assessment with Ms Gina Cidoni. She provided a report for your application for bail, four months after you were remanded into custody, dated 31 January 2023. An updated report has also been provided after your release into the community, dated 16 September 2023. Your personal history and circumstances have been summarised in these reports.
64In the first report, Ms Cidoni made the following observations and findings:
· You reported an intellectual disability. You were found to have extremely low intellectual function which was consistent with this.
· You have a stimulant use disorder and a gambling disorder. There are signs you continue to suffer from ADHD, although your psychotic/paranoid trend which was observed in testing could also be drug related.
· You were found to have high levels of psychological distress. As a result of your neurocognitive impairments underlying major addiction, your day-to-day life is difficult.
· Your risk of re-offending is moderate. You require structure and support on your release, including testing and treatment for your drug use.
· Your low cognitive and adaptive skills place you at risk in a custodial setting.
65In the subsequent report, Ms Cidoni made further observations and findings, including:
· You completed CISP as part of your bail conditions, in May 2023. You undertook a substance use program through ACSO and were later managed by Windana in Dandenong. You engaged positively with the program. You have shown significant improvement after completing CISP. Ongoing support for your mental health is still required.
· You maintain your abstinence from problematic substance use.
· You endorse moderate levels of psychological distress.
· You described feeling bad about your offending and want to put that lifestyle behind you.
· Your risk of re-offending is still found to be moderate due to various vulnerabilities.
66
As a result of the evaluation of your cognitive functioning by Ms Cidoni, you were referred to neuropsychologist, Dr Loretta Evans. You were assessed on
24 October 2023 and she has filed a report for the court dated 3 November 2023.
67You referred to a history of depression and endorsed the presence of depressive and anxious symptoms that were potentially of clinical significance.[17] You stated that you occasionally experience feelings of paranoia. You have previously attempted to commit suicide on one occasion. Dr Evans noted that there were a number of inconsistencies between the accounts that were given to Ms Cidoni and to her.[18]
[17] Neuropsychological Report of Dr Loretta Evans dated 3 November 2023, paragraph 19.
[18] Ibid paragraph 17.
68In discussion with Dr Evans, you accepted that your current actions were wrong and referred to potential ramifications from both the victim's perspective and the wider community, as well as the implications on your own personal circumstances.[19]
[19] Ibid paragraph 21.
69You have previously served six custodial sentences and have not indicated any difficulty or concerns associated with your previous periods of incarceration.
70Dr Evans conducted a neuropsychological assessment and provided her opinion, namely:
·
You cite a highly dysfunctional childhood characterised by abandonment and rejection, as well as physical and emotional abuse perpetrated by older
half-brothers and your parents.[20]
[20] Ibid paragraph 34.
· You have a significant history of illicit drug use, primarily cannabis and methylamphetamine.
· You have been treated for anxiety and depression in the past. You are currently prescribed antidepressant medication.
· You have been abstinent from drug use for more than 12 months and your children have motivated you to address these issues.
· Your neuropsychological profile is dominated by significant weakness in verbally based functions and impaired literacy levels.
· You do not declare a cognitive or adaptive profile consistent with a diagnosis of intellectual disability. However, you do satisfy the necessary criteria for a diagnosis of specific learning disorder, which would be classified as mild to moderate in severity. This is likely to have been exacerbated by your history of childhood abandonment/maternal rejection, physical and emotional abuse. It is presently impacted by elevated levels of anxiety and depression.
· Your long-standing drug addiction is likely to have impacted your attentional systems and speed of cognitive processing. Continued abstinence will assist expected improvement.
· Your learning disability is not a causal or contributing factor to your offending behaviour, whereas your acute illicit drug toxication is the most likely contributor.
· You are likely to benefit from the structure and routine inherent to the custodial setting. A deterioration to your cognitive function would not be anticipated. However, longstanding depression and anxious symptoms have the potential to increase in response to a lengthy term of imprisonment.
· You have positively gained from CISP. If your drug abuse and mental health are addressed, you have the potential to improve your prospects.
· Your expressions of remorse and regret are genuine. You have come to understand the negative consequences of your offending, particularly in regard to the impact on your relationship with your daughters.
71
Your counsel has submitted that limbs 5 & 6 of Verdins are applicable. The prosecution submits to the contrary. I note that your counsel has not relied on
Ms Cidoni's opinion on this point. In light of the neuropsychologist Dr Evans' report, I accept that you are likely to benefit from the structure of a custodial setting. I note that you indicated that you did not experience any difficulty in your previous terms of imprisonment. Further, it is only if a lengthy term of imprisonment is imposed, it is suggested that you have the potential to increase your depressive and anxious symptoms. In those circumstances, I am not persuaded that this is a relevant sentencing consideration.
72The Department of Families, Fairness and Housing (DFFH) has been heavily involved with the care of your daughters, now aged six and four years. After you were remanded into custody for the current offending, your daughters were returned and then removed from their mother's care after 3 weeks, due to her neglect. Both your daughters moved to reside with a close family friend in Ballarat and have remained living with her since your release. You have not sought to have them returned to your care until this case is finalised.
73The current carer of the children has provided a letter to the court, dated 21 April 2024. She outlines that the girls are happy when they see you and you have a positive impact on their behaviour. When they spend time with you, it enables her to have a break from their care. She writes that her mental health has been a struggle, and she has treatment every eight weeks for her issues. If you are further incarcerated, the carer believes that her position will be more challenging than it already is. Her role as their carer may have to end if you are further incarcerated, as there is no respite available.
74Ms Gemma Dean is the allocated DFFH child protection practitioner for your daughters. She has provided three reports to the court and gave evidence at your plea. DFFH have been involved in their care from October 2022. You have frequent contact with her and have maintained a positive involvement with the Department throughout that time. You have been cooperative with conditions as well as consistent with contact with your daughters, which began as fully supervised. You now have their unsupervised visits on the weekends and for lengthy periods during the school holidays, providing essential relief to their current caregiver. The Department has deemed your house well-suited and safe for them to stay for longer periods.
75Your older daughter has been diagnosed with Global Development Delay, and your younger daughter is displaying similar trauma-related behaviours. Their trauma stems from when you were arrested and they were left in the care of their mother, who neglected them. Your abrupt disappearance could not be explained, leading to your daughters' feelings of abandonment and confusion. Ms Dean stated your children are now unable to form bonds, which can lead to anxiety, emotional dysregulation, and impact on their relationship with their peers. Your older daughter is currently in receipt of NDIS support, receiving services addressing her trauma due to separation from her parents. Your younger daughter is awaiting her NDIS plan on the same basis.
76Your daughters are subject to Family Reunification orders, with the ongoing goal to have you reunified with them both. The Department is ready for this to occur, although you have voiced concerns about it, in case you are imprisoned again. You wish to delay your children coming back to avoid any risk of further distress, which would add to their previous trauma.
77Ms Dean states that the potential harm to your children in the event that you are incarcerated is multifaceted. An abrupt separation from their father would have significant emotional and psychological ramifications on your daughters. Your children would suffer further substantial hardship, particularly as it would be coupled with the absence of their mother.
78Ms Dean confirmed that you are currently the only suitable kinship carer for your children. Your children's mother is not involved with their care at all and cannot be contacted, despite 75 separate attempts to do so. She has issues with drug use, which have escalated. Her youngest child lives with a maternal family member who does not have a big enough house to take in the care of the other daughters. Your mother and father are deemed to be unsuitable carers. Should you return to custody, Ms Dean stated there is a likelihood that the current placement would breakdown. The current carer would have no essential relief and is unlikely to handle the children's behaviour and meet their increasing needs without your assistance and involvement. The Department has reached out to the girls’ daycare workers, who stated they were unable to provide respite. Your daughters would have to be placed with formal foster carers, and there is no guarantee they would be placed together. Given the carer pool in Ballarat is slim, it is likely they would be placed two to three hours out of town.
79I consider Ms Dean's evidence to be most impressive and persuasive.
80You have submitted that there would be significant hardship to your children should you be sentenced to a further term of imprisonment and so the court should exercise mercy in sentencing. I have considered the decision of Markovic v the Queen.[21] The court can only do so if exceptional circumstances are made out. The prosecution does not accept that they are made out.
[21] Markovic v the Queen [2010] VSCA 105.
81After careful consideration, particularly in the context of the evidence of Ms Dean, I accept that exceptional circumstances are made out. Given the tragic background that has been suffered by your young children, I accept that there is a real risk by your absence that they would suffer further unacceptable and significant anguish and hardship, if you were to return to custody. You have a chance to break that cycle if you remain in the community. Dr Evans noted that you 'referred to a strong desire to provide a secure and permanent environment to raise your daughters' as a result of your own history of childhood instability.[22] I accept that your provision of care and support will protect your children from the overall risk to significant hardship. I consider that your prospects have improved and are not unreasonable.
[22] Neuropsychological Report of Dr Loretta Evans dated 3 November 2023, paragraph 6.
PARITY
82I have considered the principle of parity of sentence. It does not amount to a mathematical equation and I am required to balance a number of factors in this case.
83Wayne Scott pleaded guilty to being in the possession of a traffickable quantity of firearms on 27 September 2022. It was heard in the Magistrates' Court in Ballarat on 7 February 2023, as part of a consolidated plea and he received an aggregate sentence of 15 months' imprisonment. While I am aware that he had a more lengthy criminal history than you, Pettit, I am unable to take his disposition into account in the absence of any other information.
84I have concluded, Starkey and Pettit, that there is no disparity in your roles of the offending for the same charges to which you have both pleaded guilty. You are to be sentenced on the same basis, as this was a joint enterprise. It appears that your motivation for offending was driven by your drug addiction. You, Pettit, are seven years older than you, Starkey and are facing one additional charge.
85You both have lengthy criminal histories, although your prior matters, Starkey are more serious and you reoffended within four weeks of your release from custody. However, Starkey, you have significant Bugmy considerations, which are enduring issues and a mitigating factor. In particular, it lessens the weight I give to your moral culpability. However, this is counterbalances to an extent by the need for community protection.
86While you were both remanded for the current offending, your subsequent circumstances are very different. You, Starkey have remained in custody and have undergone another sentence of imprisonment while on remand.
87You, Pettit, have served much less time in custody and have more reasonable prospects. Significantly, you, Pettit, have established exceptional circumstances. Ultimately, these factors have resulted in some disparity in the sentences I will impose and is a reflection of your differing circumstances.
HAYDEN STARKEY – Sentence
88I take into account the maximum penalty for these offences and current sentencing practices. I have decided that there must be some, but not total, cumulation in the sentences that I impose in your case. I have endeavoured to tailor your sentences to ensure that they are proportionate to your criminal conduct overall.
89I have taken care not to doubly punish you for the current offences. The principle of totality needs to be considered and you have served a further sentence of imprisonment since you were remanded for the current offending. I take that into account. As I said, your prospects are guarded.
90I accept that your supervision upon release will be of benefit to both you and the community. I intend to impose a period on parole that will allow your monitoring and supervision. Subject to the decision of the Parole Board, I hope that you will be able to access parole as soon as it is available, to facilitate your rehabilitation. Balancing these factors as best I can I sentence you as follows:
CHARGES
SENTENCE
CUMULATION
1. Burglary
1 year
Plus 4 months
2. Theft of firearms
2 years
BASE
3. Theft
1 year
Plus 2 months
Trespass
2 months
concurrent
TES
2 years 6 months’ imprisonment
NPP
1 year 6 months
PSD
337 days
s6AAA
3 years 9 months’ imprisonment with non-parole period of 2 years and 6 months.
91I will just check, do you want me to go through that again, Mr Rudston?
92MR RUDSTON: I think I have it, Your Honour and I'll be able to check it when we get a copy of the order, so thank you, no.
93HER HONOUR: All right, thanks.
DAVID PETTIT- Sentence
94I consider that deterrence, denunciation and punishment are all relevant sentencing considerations. Rehabilitation also remains a relevant consideration. Your prospects are, in effect, in your hands. Given the insight you have developed into drug use and the responsibility you have for your daughters, I accept that your prospects have improved and are not unreasonable.
95When considering the appropriate penalty, your counsel submitted that a suitably tailored community corrections order, in combination with the period you served on remand would be appropriate and satisfy all the relevant sentencing requirements in your case. The prosecution does not accept your counsel's submission, saying that an immediate term of imprisonment with a non-parole period is the only appropriate disposition. I note that the prosecution does not accept that exceptional circumstances are made out.
96An assessment for a CCO was undertaken on 15 May 2024. When you presented to the assessing officer, you positively engaged in the assessment. You showed some insight into the precursors of your misconduct, saying that your offending was required to support the expenses associated with your drug use. You are motivated to remain clean from substance use, so that you can regain the custody of your daughters and 'be there' for them. You feel that you have let them down and acknowledge the wrongdoing of your previous offending.
97You have been assessed as a high risk of general reoffending behaviour and deemed an appropriate candidate for a CCO. You acknowledge that you do have the capacity to comply with obligations pertaining to a corrections order.
98You were also assessed by the Mental Health and Advice Response Service. You are a recipient of a Disability Support Pension and denied experiencing any physical issues that impact your ability to function. You were calm, composed and cooperative when assessed. You would benefit from psychological counselling that focuses on achieving your prosocial life goals and not reoffending. It is recommended that your mental health be assessed and treated as part of a CCO. Your current mental state would not impede your ability to engage in the order.
99You have indicated that you are willing to comply with a corrections order and you have been found suitable for such an order.
100I have considered the decision of Boulton v The Queen,[23] that even in cases of relatively serious matters, a CCO may be an appropriate disposition.
[23] (2014) 46 VR 308 at 338 [131].
101I take into account the maximum penalty for these offences and current sentencing practices. Given that I have determined that exceptional circumstances exist, I will impose a combination disposition that does not require any further incarceration. I accept that your supervision will be of benefit to you, your daughters and the community. Balancing these factors as best I can I sentence you as follows:
CHARGES
CHARGE
SENTENCE
1, 2, 3, 4
Burglary, theft of firearms, theft, possess traffickable quantity of firearms
Aggregate 4 months’ imprisonment + 2 year CCO
Summary charge 4
Trespass
CCO
PSD
128 days
S6AAA
12 months’ imprisonment + CCO
102In relation to all the charges, including the summary offence, you are convicted and sentenced to a 2 year community corrections order. I will include all the standard conditions and in a moment I will ask you to step down and sit with Ms Hancock to go through them.
· You are to report to the Dandenong Community Corrections Service Centre within two working days of being sentenced.
· You are to perform 250 hours of unpaid community work.
· You are to comply with supervision.
· To undergo assessment and treatment as directed for your drug use.
· To undergo assessment and treatment as directed for your mental health.
· To participate in programs to reduce your reoffending.
· I direct that 50 hours of treatment and rehabilitation may be accredited to the community work hours.
103After considering the assessment I have decided not to impose a curfew condition, as you have already been subject to a curfew for more than 15 months. I will impose a bond and in a moment I am going to ask Ms Hancock to get some instructions of your income, and what access you have to finance.
104MS HANCOCK: Your Honour, I have those instructions.
105HER HONOUR: Thank you.
106MS HANCOCK: Mr Pettit is in receipt of a Disability Support Pension for which he receives $850 a fortnight.
107HER HONOUR: Yes.
108MS HANCOCK: He instructs that he pays rent and food of $250 per fortnight to his father.
109HER HONOUR: Yes.
110MS HANCOCK: And any other expenses are expenses related to when his daughters come to visit, but in terms of regular expenses it is the $250 per fortnight. He instructs that he tries to save between $150 and $200 per fortnight which he then puts aside for presents and Christmas and things of that nature. So that's his circumstances.
111HER HONOUR: All right. The purpose of a bond is for your client to make a payment once he signs up for the order.
112MS HANCOCK: Yes.
113HER HONOUR: As an added incentive for him to comply with the order. Once he finishes the order he will get the bond back, but if he breaches the order he may lose that finance.
114HER HONOUR: Could you just get some instructions on his capacity to access finances please, for signing up in the next 48 hours? Thank you.
115MS HANCOCK: Certainly. Your Honour, he instructs that he has $200 on him now, he has about $400-500 in a bank account that he could access in that time frame. His next Disability Support payment he will receive next week.
116HER HONOUR: All right. Well I will set the bond in the amount of $500. I will ask that the bond of $500 be paid to Community Corrections when he signs up for the order. Assuming that he complies with the order, it will be returned at the conclusion. All right, thank you. We will just pass down the document for him to sign and if you could go through it please with Ms Hancock. Thank you.
117Just while that is occurring, Mr Rudston, in a moment when we leave the Bench we will cut all the connections and give you a chance to speak to Mr Starkey.
118MR RUDSTON: I'm grateful, Your Honour, thank you.
119HER HONOUR: All right. Just while that's coming through, Ms Dunn can I just check, are there any orders for forfeiture or disposal that were sought?
120MS DUNN: No, Your Honour, none are sought, thank you.
121HER HONOUR: Can I confirm that Mr Pettit understands the conditions and he is prepared to comply with the order?
122MS HANCOCK: He does, Your Honour, thank you.
123HER HONOUR: Thank you.
124MS HANCOCK: And he is.
125HER HONOUR: Can I thank you all very much. I will leave the Bench.
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