Director of Public Prosecutions v Stewart

[2020] VCC 1671

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 19-01862

DIRECTOR OF PUBLIC PROSECUTIONS

v

TAYLOR STEWART

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:	16 October 2020
DATE OF SENTENCE:	16 October 2020
CASE MAY BE CITED AS:	DPP v Stewart
MEDIUM NEUTRAL CITATION:	[2020] VCC 1671

REASONS FOR SENTENCE

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Cases Cited:

Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms K. Hamill	Office of Public Prosecutions
For the Accused	Mr M. Brugman	Criminal Lawyers Geelong

HIS HONOUR:

1Taylor Stewart, in the early part of 2018 an old Nissan ute was left at a house in Mildura where a Ryan Garner was living or he did at some point.  The owner, a Jonathan McKewan, had left the premises and the car remained there.  You believed at the time that Ryan Garner owed you money and he and you negotiated a payment by you taking the ownership of the ute.  You arranged to go to Mildura to pick up the ute.

2The ute was at the time you arrived in the Mildura area being towed away by the owner and a friend of his.  This was on 11 December 2018.  You came across the car, the ute being towed, by the owner and his friend.  An argument about the car broke out.  You brandished a metal bar to make your point that it was your car and should not be taken by anyone else.  Your conduct was frightening.  You took the car and headed to an associate's house in New South Wales.  You now accept that the car was owned by Mr McKewan.  It seems that it was returned to him some short time after it was taken to New South Wales as you left it there for repairs but did not return to retrieve it.

3You have pleaded guilty to theft of the car and unlawful assault with a weapon to both the owner, Mr McKewan, and his friend, as well as committing the theft offence while on bail.  Originally you were charged and committed to this court on new offences of aggravated carjacking and armed robbery.  These serious offences require or would ordinarily require a term of imprisonment.  As it turns out, you were, after your arrest on 13 March 2019, remanded in custody, and you remained in custody for six months.

4The matter that you were committed on was subject to negotiations and resolved in the terms that I have just described, that is for theft and unlawful assault.  You made an application for a sentence indication this morning.  That resulted in a favourable outcome where I indicated that you would not receive any further imprisonment.

5You are now 25.  I think at some point I said you were 27 but you are now 25.  You have some prior matters arising from five court appearances in Victoria  and one in Queensland.  You received a fine as well as, I think, spending some time in custody on remand for  a handling charge.  This hearing in respect to that matter was before the Magistrates' Court on 23 May 2019 and thus was, as I indicated earlier, concerning proximate to the offending that is before me.

6Your other prior convictions are older and mainly for poor driving.  You have a good work history in Victoria and in Queensland.  You are presently unemployed but you say once these matters are finalised you hope and are confident that you will secure work.  Your counsel emphasised that the community's interests were in you returning to the workforce.

7You live in Bendigo with your father, who requires your help as his health is not good.  In my view, a sentence of six months is just and appropriate for the theft of the car and the assault with a weapon, motivated, as it was, by a misguided belief that you had a right to take the car.

8I have considered whether a community corrections order should be imposed in addition to the six months' imprisonment.  In my view, it is not necessary to meet all the sentencing purposes of denunciation, punishment and deterrence.  The gaol term that you served of six months well satisfies those important purposes.  A community corrections order in the current pandemic would be problematic and nothing arises that requires programs to facilitate your further reform.  In respect of the bail matter I can impose a fine.

9I am required if I convict you, by the provisions of the Sentencing Act to suspend or cancel you licence.  This is a punishment, a significant one in your case as you live in rural Victoria and work in an industry which would require you to have a licence.  I keep this in mind in respect of the period of time with which you will be not able to drive.

10Doing the best I can, I impose an aggregate sentence for the indictable matter and one of the summary matters, that is the assault in company.  That sentence is a sentence of six months.  I declare that you have done six months' imprisonment by way pre-sentence detention.  That figure of six months having been calculated and reckoned, I now declare that it is part of the sentence that I have just imposed.  Indeed, it is every single day of it.  I will ensure that this declaration is entered into the records of the court so the prison authorities know that you have done, and the police authorities know, that you have done each and every day of the six months that I have just imposed.  So you will not return to prison.

11In respect of committing the indictable offence of theft while on bail, that matter is proven.  You are convicted and fined $200.

12Had you pleaded not guilty to the matters that ultimately came before the court, theft and assault, I would have imposed a term of imprisonment of 10 months, thus you can see as can others, that by pleading guilty you receive a considerable benefit for facilitating the course of justice.

13With respect to the licence, what I propose to do is impose upon you a suspension from driving for one month.  The sentence that I have just announced and, in particular, the driving licence.  I will not authenticate those orders until tomorrow.  They will be authenticated tomorrow, meaning I will sign them tomorrow.  That means that the effect upon your licence operates from tomorrow.  That will enable a return to Bendigo.  I only do that because we are in pandemic circumstances and you should not be in Geelong or on public transport or moving anywhere that you should not, particularly as you are, as I understand it, with a partner at the moment.

14So the order will not be signed until tomorrow.  You are authorised to drive, if you otherwise have a licence, to get your partner back to where she should have stayed, and you return to Bendigo and remain, but do not drive any time after today, Mr Stewart, because if you do you will be driving whilst your licence is suspended and that will be a criminal offence for which there are very significant consequences.

15Ms Hamill, it seems to me, and I have seen it done in other instances, that an order can be made but not authenticated until the day following.  I would not ordinarily do it and I do not think I have done it ever before, but I have seen it done, especially when people are being sent to prison but no one is looking after the children.  So somehow they allow them to go and sort that out and then the order is authenticated.

16MS HAMILL:  Yes, Your Honour.

17HIS HONOUR:  Is there a problem with that?

18MS HAMILL:  I do not see any, Your Honour, and certainly I have had instances where there have been difficulties with the sentence imposed that are required to be fixed.

19HIS HONOUR:  Yes.

20MS HAMILL:  And that can be done prior to the order being authenticated and so it would seem that the same thing follows.  I am - again, Your Honour, my apologies for not having indicated this earlier.  There is disposal sought of a screwdriver.

21HIS HONOUR:  Yes, I saw that.  There will be a disposal order of the screwdriver.  I do not know what it has got to do with anything but - - -

22MS HAMILL:  Nor do I, Your Honour.

23HIS HONOUR:  - - - someone has got a screwdriver that they do not want and I will dispose of it because it is got nothing probably to do with Mr Taylor but there it is.

24MS HAMILL:  Yes, Your Honour.  Perhaps if I can also indicate for Mr Taylor's benefit that there was also application for disposal of his phone.

25HIS HONOUR:  Yes.

26MS HAMILL:  But the informant has indicated that he can have that back.  So that is not being pursued.

27HIS HONOUR:  All right.  So you will get the phone back one way or the other, Mr Stewart.  Mr Brugman might have to take that up with the informant.  Is there anything else required?

28MS HAMILL:  I do not believe so, Your Honour, no.

29MR BRUGMAN:  No.

30HIS HONOUR:  All right.  So in the unusual circumstances, despite my shock that Mr Stewart brought someone else from Melbourne to Geelong, he ca drive today but that is it.  One month thereafter.  Understood, (inaudible words)?

31MR BRUGMAN:  May I let Your Honour know that she is his intimate partner and she is from Bendigo he has told me, Your Honour.

32HIS HONOUR:  That is a different matter but what people were doing in Melbourne picking up partners in Melbourne I have no idea, but if it is an intimate partner that is fine.  He can visit an intimate partner, but an intimate partner, there is no provision for bringing them to court.  I would not have allowed it if it were in an open court.  I would say he does not need it.  Anyway.

33MR BRUGMAN:  Yes, Your Honour, he has heard that.

34HIS HONOUR:  Yes, all right.  So hopefully no harm done.  Who knows?  But I will now leave the meeting.  I will sign the orders tomorrow - I will sign the orders - we are up to Friday.  I will sign the orders on Monday.  It looks like the weekend might be available because if I sign them now he cannot drive from that minute on.  I will sign them on Monday, Ms Hamill.

35MS HAMILL:  Yes, Your Honour.

36HIS HONOUR:  All right.

37MR BRUGMAN:  So it should be a month from Monday that he - that - - -

38HIS HONOUR:  A month from Monday, a month from Monday, yes.  It will be forwarded on to the Chief Commissioner and the Roads Corporation or whatever we do or someone else does for me from Monday.

39MR BRUGMAN:  If Your Honour pleases.

40HIS HONOUR:  Thank you very much.  Thanks for your assistance and thank you for resolving this case, which looked difficult at one point.  Thank you.

41MS HAMILL:  As the court pleases.

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