Director of Public Prosecutions v Stead

[2020] VCC 1105

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-20-00009

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANDREW STEAD

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JUDGE:	HIS HONOUR JUDGE MASON
WHERE HELD:	Melbourne
DATE OF HEARING:	18 June & 21 July 2020
DATE OF SENTENCE:	24 July 2020
CASE MAY BE CITED AS:	DPP v Stead
MEDIUM NEUTRAL CITATION:	[2020] VCC 1105

REASONS FOR SENTENCE
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Subject:Plea - sentencing

Catchwords:            Attempt to pervert the course of justice – theft - commit indictable offence whilst on bail - contravene conduct condition of bail

Legislation Cited:     Crimes Act 1958, Sentencing Act 1991

Cases Cited:

Sentence:8 months' imprisonment and 24-month CCO

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Lenthall	Office of Public Prosecutions
For the Accused	Mr G. Nikolovski	Paul Vale Criminal Law

HIS HONOUR: 

1Andrew Stead, you have pleaded guilty to one charge of attempting to pervert the course of justice, two charges of theft, two transferred summary charges of commit an indictable offence whilst on bail and one transferred summary charge of contravening a conduct condition of bail.

Attempting to Pervert the Course of Justice carries a maximum penalty of 25 years’ imprisonment.  -   

Theft carries a maximum penalty of 10 years’ imprisonment.  -   

Committing an Indictable Offence Whilst on Bail carries a maximum penalty of 3 months’ imprisonment or 30 penalty units. -   

Contravene a Conduct Condition of Bail carries a maximum penalty of 3 months’ imprisonment or 30 penalty units. -   

2You were born on 21 April 1998 and are now 22 years old.  You were aged 21 at the time of the offending last year, and at that time you lived with your mother in Nunawading. 

3Between 29 April 2019 and 15 November 2019, you were the respondent to an interim family violence intervention order in which the affected family member was your brother. 

4The circumstances of the offending, in summary, are as follows. 

5On Monday 7 October, 2019 at approximately 7.05 pm you stole a slab of Jack Daniels and Cola, valued at $102, from Liquorland in Bayswater.  This conduct gives rise to Charge 3 of theft. 

6On the same evening, at around 7.35 pm you attended Chemist Warehouse in Knoxfield and tried to enter the dispensary.  When stopped by a store employee, you said you were after Rikodeine, a behind-the-counter medicine.  You then walked along the pharmacist's ledge looking at products until you reached a shelf of medical equipment. 

7You lifted your jumper, placed two pieces of equipment underneath and exited the store without paying.  You had taken an Omron Electronic Nerve Stimulator and a Phillips Innospire portable nebuliser, valued at $389.98.  This gives rise to Charge 2 of theft. 

8Security were alerted and chased you.  You dropped both items from under your jumper onto the ground in the carpark.  A security guard brought you back to the store. 

9Staff called police who attended and arrested you.  You appeared to be drug or alcohol-affected.  When asked by police, you gave your name as the name of your brother, the affected family member of the family violence intervention order. 

10Constable Brockway went to confirm your identity on an iPad.  While that was occurring another member asked if you were on bail and you replied, 'Yep.'  Constable Brockway confirmed that your brother was on bail and viewed a photograph of your brother, which looked similar to you, the offender.  This conduct gives rise to Charge 1 of attempting to pervert the course of justice.

11You were conveyed to the Knox Police Station where a recorded police interview was commenced, but not completed due to you being substance-affected and unfit for interview. 

12You did, however, give your full name at the start of the interview as that of your brother, and you gave a false address and date of birth.  This conduct gives further rise to Charge 1 of attempting to pervert the course of justice. 

13After the interview was suspended, you were lodged in a cell.  You vomited and went to sleep.  Several hours later you told police that you had consumed three Xanax tablets, three beers and four cones of cannabis.     

14You were ultimately charged with theft and committing an indictable offence whilst on bail under the name of your brother.  A preliminary brief was prepared in that name. 

15The following morning you were taken to Ringwood Magistrates' Court.  You were seen by a duty lawyer for Victoria Legal Aid and gave instructions to plead guilty to the new charges as well as to outstanding charges being faced by your brother.

16This was communicated to the police prosecutor and the outstanding court matters of your brother were abridged to the same day so that pleas of guilty could be entered.  This conduct gives further rise to Charge 1 of attempting to pervert the course of justice. 

17Custody staff suspected that you were in fact Andrew Stead, not your brother.  This was conveyed to the Ringwood Police Prosecution's office.  Police Prosecutor Stillman was given LEAP photographs of both brothers and attended the cells with custody staff. 

18She formed the opinion that you were in fact Andrew Stead, not your brother.  She approached you and said, 'Andrew, what's happening?'  You responded, 'Not much.'  The prosecutor said, 'This is you, isn't it?'  You replied, 'I'm just really confused.'  The prosecutor notified the original informant who attended. 

19A further police interview was conducted and recorded.  You said:

·     I don't remember stealing the items from Chemist Warehouse, but I know I did it. 

·     I was planning to sell the stolen items and buy drugs

·     I had a lot of Xanax and drank two bottles of alcohol … I had at least eight or nine Xanax. 

·     I don't remember speaking to police when I was arrested. 

·     I said I was my brother, because I didn't wanna get remanded, and if I said I was Andrew I thought I would get remanded anyway from just doing the theft, but I kept up with the lie until I spoke to the Legal Aid, and yeah, they figured out I was lying, and - yeah.

·     I told the Legal Aid lawyer ‘I was gunna plead guilty to all of it … the stuff from last night … and his charges’. 

·     I just thought that if I kept up with the lie, that I would just get - you know, walk out of this.  My brother would just get a CCO.

20At the time of the offending, you were on bail in relation to a charge of possessing cannabis.  That gives rise to related summary offences 2 and 4 of committing an indictable offence whilst on bail. 

21Further, it was a condition of your bail that you not use a drug of dependence within the meaning of the Drugs Poisons and Controlled Substances Act, and that gives rise to related summary offence 5 of contravene a conduct condition of bail. 

22You were charged and remanded in custody to appear at a filing hearing the following day. 

23This matter resolved at the first committal mention on 8 January 2020.  You entered pleas of guilty and the matter proceeded by way of straight hand-up brief. 

24I now turn to your personal circumstances. 

25As I noted earlier, you are now 22 and you were 21 at the time of this offending last year.  You do have a criminal record.

26Your criminal career commenced in the Ringwood Children's Court in 2013 when at the age of 15, you were placed on a good behaviour bond for eight months. 

27Some two years later you were back in that court on various dishonesty and drug charges and were placed on probation for 12 months.  On breaching that probation, you were given a further seven months' probation. 

28Some two and a half years after that, in the Dandenong Magistrates' Court at the age of 20, you were placed on a community correction order for 12 months for burglary and theft charges. 

29Three months after that you were fined for drug possession, and four months after that you were imprisoned for one day on drug and weapons charges. 

30The following month you were convicted and discharged for contravening a conduct condition of bail - the same charge to which you have pleaded guilty at this court in these proceedings. 

31Just over two weeks after that hearing, you committed the offences for which you are now being sentenced today. 

32In summary, from the age of 13 to 21, you have committed some 19 offences involving prohibited drugs, thefts, deceptions and burglary.  In the past, you have received sentences from the courts designed to assist your rehabilitation, rather than imposing gaol terms.  You have received a probation order and you breached that.  On 30 January 2019, you undertook to comply with the conditions of a 12-month community correction order.  You have breached that order by the current offending.  You have also previously breached bail conditions. 

33Your developing history of criminal offending reflects your descent from a young age into chronic alcohol and both prescription and illicit substance abuse.  You began with alcohol and cannabis from the age of 12, and graduated to Oxycontin, Buprenorphine, Xanax, Valium and Seroquel. 

34You have continued to take alcohol and methamphetamine heavily in recent years and were intoxicated on alcohol and Xanax at least at the time of offending.  You were aware that you were vulnerable to aberrant behaviour whilst under the influence of drugs.  

35You have experienced a disadvantaged family background involving violence from your father to you and to others within the family until your father left the family home when you were aged approximately seven. 

36Your father also was a heavy drug user.  There was ongoing conflict with your mother and you had a distant relationship with a subsequent stepfather. 

37After progressing well through primary school, you developed conduct problems at secondary level and would frequently truant from school.  You were expelled from high school in Year 8 and left Croydon Community School in Year 9 due to disinterest. 

38Your employment has been limited to a roof-tiling apprenticeship between 2012 and 2018.  Your drug use became a significant problem after you spent $5000 on drugs when you had received a loan to buy a car.  You have been unemployed since 2018. 

39A report from Ms Miriam Latif, forensic psychologist, was tendered on your plea.  In her report, Ms Latif has diagnosed you as suffering from Generalised Anxiety Disorder, Major Depressive Disorder, Stimulant Use Disorder and Alcohol Use Disorder.  At the time of assessment, your anxiety and depressive levels were considered to be extreme.  I note that at the time of that assessment you had been in custody for approximately four months.  In that time you presumably had less access to illicit drugs. 

40Your further offending in the present circumstances, beginning with the two thefts, is disturbing by its continuity with earlier similar offending in the context of illicit drug use, and is aggravated by your recourse on this occasion to an attempt to deflect your offending onto another.     

41That deception was calculated and reinforced by repetition.  The act had the potential to cause an innocent person, your brother, to be subject to a criminal conviction and sentence.  This is regarded by the law as obviously very serious misconduct.  It has the potential to subvert the proper administration of the law, undermining our legal system and creating a loss of public confidence. 

42In mitigation I have taken into account the submissions made by your counsel, and I accept in particular:

·     your plea of guilty and the early stage at which it was entered, both for its practical value and as an indication of your remorse;

·     your disadvantaged family background;

·     your long term alcohol and illicit use addiction and associated mental health conditions;

·     the rehabilitative courses you have undertaken whilst in remand custody, your willingness to engage in community drug rehabilitation and the practical steps you have already taken in that regard;

·     the close support you have from your family, and particularly your mother;

·     your youthful age; and

·     your recent attempts to obtain employment. 

43I also accept that the level of offending is within the relatively low range for each type of offence. 

44Balancing all the circumstances I am satisfied that, taking into account the time that you have already spent in remand custody, the mitigating matters and the progress that you have made towards your rehabilitation, a sentence of imprisonment followed by a community correction order would appropriately balance the required sentencing considerations, giving due emphasis to the totality of the offending balanced with the need to continue to encourage and assist your rehabilitation. 

45You have been assessed as suitable for a community correction order. 

46I have not imposed any unpaid community work condition to the order on the basis that I consider that the punitive aspect of the sentence is adequately represented by the reasonably extensive period that you have already spent in custody, and the circumstances of that remand custody in light of the current pandemic environment, and also to allow for you more comprehensively to apply yourself to actual paid employment in the community. 

47Mr Stead, could you please now stand. 

48On Charge 1 on the indictment of attempting to pervert the course of justice, you are convicted and sentenced to six months' imprisonment. 

49On each of charges 2 and 3 on the indictment of theft, you are convicted and sentenced to three months' imprisonment.

50Charge 1 is the base sentence.

51I direct that one month each of the sentences imposed on Charges 2 and 3 to be served cumulatively on the sentence imposed on Charge 1. 

52The total effective sentence is eight months' imprisonment.  The sentence starts today.

53As to the term of imprisonment, you were remanded on 8 October 2019 and you were released on bail on 22 June 2020. So pursuant to s.18(4) of the Sentencing Act 1991, I declare that the period of 259 days - which represents eight months and some 20 or so days - be reckoned as time already served under the sentence, and I direct that the fact of this declaration and its details be noted in the records of the court.

54I note that since the pre-sentence detention exceeds the term of imprisonment, it is my intention by the sentence that I have imposed that you be released from the dock forthwith.  The term of imprisonment has been served by the taking into account of the pre-sentence detention.  

55So just directing my remarks to the custody officers, do you understand that, gentlemen?  Mr Stead, you may leave the dock.  I ask you to come down and sit on that bench just there.  Thank you.  I will continue with my sentence. 

56On Charges 1, 2 and 3 on the indictment you are further ordered, with conviction, to serve a community correction order for a period of two years. 

57The community correction order commences today and ends on 23 July 2022. The Corrections Centre you will attend is the Ringwood Community Correctional Service at Level 1, 2 Bond Street, Ringwood, and you must telephone there - the number is on the order which you will be given a copy of shortly - within two clear working days after the commencement of the order, that is, by 4 pm next Tuesday 28 July. 

58All the mandatory terms of the community correction order apply and the additional conditions I impose are that:

·     you be under the supervision of a community corrections officer,

·     you undergo assessment and treatment (including testing) for drug abuse or dependency as directed by the regional manager,

·     you undergo assessment and treatment (including testing) for alcohol abuse or dependency as directed by the regional manager,

·     you undergo mental health assessment and treatment including (but not limited to) mental health, psychological, neuro-psychological and psychiatric, if necessary in a hospital or residential facility, as directed by the regional manager, and

·     you attend for judicial monitoring in this court on 15 October 2020 at 10 am.

59I realise you have already had the mandatory terms of the community correction order explained to you, but I will just go over them again now.  The mandatory terms are that:

·     you must not commit another offence for which you could be imprisoned during the time that the order is in force,

·     you must comply with the requirements of Regulation 17 of the Sentencing Regulations 2011, which essentially set out your obligations as to your attendance at the Community Corrections centre - such things as not attending drug or alcohol-affected;

·     you must report to and receive visits from a community corrections officer; 

·     you must report to the Community Corrections Centre, that is the Ringwood centre, by telephone within two clear working days of the order starting, and as I already indicated, that is by 4 pm next Tuesday 28 July; 

·     you must notify a community corrections officer of any change of address or employment within two clear workings days after the change;

·     you must not leave Victoria without first getting permission to do so from a community corrections officer; and

·     you must obey all lawful instructions from, and directions of, Community Corrections officers - such directions may be given orally or in writing. 

60Now you can come forward to the Bar table and sit at the Bar table, because I need to record your response to my next question. 

61Do you understand and agree to these conditions, Mr Stead?

62OFFENDER:  Yes, I do, Your Honour.

63HIS HONOUR:  If you get sick or if there are exceptional circumstances, the order may be suspended for a period of time, and if your circumstances materially alter, you may apply for a variation or cancellation of the order.  In either case you must notify the Ringwood Community Corrections Centre, and I recommend that you obtain legal advice if any of these things happen. 

64However, I must warn you that if you breach any condition of this order, you will be brought back to court and that will be before me.  One of the options open to me is to cancel the community correction order and re-sentence you on the original charges - which in your circumstances is most likely to result in further imprisonment for you - and I may also deal with you for the crime of breaching a community correction order, which is a separate offence in itself, by sending you to prison for a further period of up to three months.  So do you understand the consequences of breaching your community correction order?

65OFFENDER:  Yes, I do, Your Honour. 

66HIS HONOUR:  I will ask you to sign that correction order shortly. 

67I order that on each of the transferred summary Charges 2 and 4 of commit an indictable offence whilst on bail, you are convicted and fined $100.

68On the transferred summary Charge 9 of contravene a conduct condition of bail, you are convicted and fined $100.

69Pursuant to s.6AAA of the Sentencing Act, but for your plea of guilty, the sentence that would have been imposed on Charges 1, 2 and 3 on the indictment is two years' imprisonment with a minimum period of 18 months to be served before eligibility for parole.

70Mr Stead can now sign the community correction order.  I will pass this down and if you agree to those terms I will countersign it and then you will be provided with a copy. 

71I will just mention one thing to you, Mr Stead.  You will be aware of this, I know, because you are in a better position now, because of the time you previously spent in custody and the short time you have been out on bail.  But, you are at a very, very strong crossroads in your life.

72OFFENDER:  Yep.

73HIS HONOUR:  You should write that word down, put it on your computer, put it on your phone, because unless you can get away from this drug addiction, you are going to spend your life mostly in gaol and in all sorts other difficult circumstances, and you might even be dead by the time you are 40. 

74I have seen this pattern that you have done since the age of 12 or 13.  It is a very difficult one to move away from, and that is why you have to take every opportunity you can of dealing with the people and the resources that are at your disposal now to help you address the issues in your life, not just your drugs, but any underlying conditions you have got - anxiety and the like - and in my experience the only way that you can manage this, with the depth you have gone down, is to keep on that methadone program.

75OFFENDER:  Yep.

76HIS HONOUR:  So if you breach this order after these serious offences, particularly the first charge of attempting to pervert the course of justice, any opportunities for further community correction orders are probably gone.

77OFFENDER:  Yep.

78HIS HONOUR:  Well I hope you can make it, and we will see you on the 15^th of October. 

79OFFENDER:  Yep, thanks Your Honour.

80HIS HONOUR:  Thank you. 

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