Director of Public Prosecutions v Tatlow

[2021] VCC 536

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 19-01453

DIRECTOR OF PUBLIC PROSECUTIONS

v

MARK TATLOW

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JUDGE:	HER HONOUR JUDGE CANNON
WHERE HELD:	Melbourne
DATE OF HEARING:	30 April 2020 (Initial Plea); 28 April 2021 (Further Plea following deferral of sentence)
DATE OF SENTENCE:	3 May 2021
CASE MAY BE CITED AS:	DPP v Tatlow
MEDIUM NEUTRAL CITATION:	[2021] VCC 536

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW

Catchwords:  Sentence - Pleas of guilty - Aggravated burglary - Common law assault - Summary offence commit indictable offence whilst on bail - Lengthy criminal history - History of prescription drug and alcohol abuse - Deferral of sentence - Further supportive reports in relation to psychological treatment and rehabilitation at further plea

Sentence:Convicted and sentenced to 310 days’ imprisonment in combination with a Community Corrections order (CCO) of 2 years’ duration - 310 days’ imprisonment declared as having already been served - s.6AAA Sentencing Act 1991 declaration - Ancillary Disposal order

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J. Piggott	Solicitor for Public Prosecutions
For the Accused	Mr J. Miller	Stephen Petersen Lawyers

HER HONOUR:

1Mark John Tatlow, you have pleaded guilty to one charge of aggravated burglary which has a maximum penalty of 25 years' imprisonment and two charges of common assault; this offence has a maximum penalty of 5 years' imprisonment.

2You have also pleaded guilty to the summary charge of committing an indicatable offence whilst on bail which has a maximum penalty of three months' imprisonment.

3I have hard regard to the maximum penalties in respect of each of the offences, as these reflect the seriousness with which Parliament regards them.

4The prosecution summary, which was accepted by you through your counsel, Mr Miller, indicated the following.

5You were 50 years old at the time of the offending.

6On 7 December 2018, you were granted bail in the Moorabbin Magistrates' Court in respect of other alleged offending.

7On 11 January 2019 at around lunchtime, you and an associate attended the premises of Melissa Angell.  You were carrying a metal pole which was about half a metre long.  Ms Angell was home with her partner, her son, her brother William, and your daughter Jade Tatlow.  Jade was 16 years old at the time and was a friend of William's.  You believed that Jade was having a relationship with a 32 year old man, as this was something you had been told shortly before your visit.

8You asked if you could speak with Jade.  Ms Angell asked Jade if she wished to speak with you and she declined.  You made some remarks about getting into the house one way or the other.  Ms Angell was terrified; she closed the door and called the police.

9You walked down the side of the house with your associate.  By the time that the police arrived, you had left.

10You moved on to the home of a Jennifer Murphy and asked her, in words to the effect of, 'Do you know where a girl is?'  You described her as a blonde girl who was with a 32 year old male.

11Ms Murphy then noticed a galvanised silver bar on her front lawn.  She asked you about this and you said that it was yours and that you would deal with the 32 year old male.

12You then picked up the bar and walked away from Ms Murphy's house and toward the other houses in the same street

13All of the events to which I have just referred were relied on by the prosecution by way of context only and you are not to be sentenced in relation to these, and I have not done so.  The factual basis upon which you are to be sentenced is as follows.

14Just after midnight on 12 January, you went to the Siesta apartments in Sale and broke into an apartment which was occupied by complete strangers.  At about 4.30 am, the female victim, Ms Ware, heard noises from their bathroom and woke up her companion, Mr Swan, telling him that someone was there.

15You entered the bedroom and threatened both of the victims with a pitchfork, raising it above your head, with the prongs of the fork facing the victims.  The victims both raised their arms and screamed.

16You then said word to the effect of, 'Where is Guy?'  The victims both told you that they were not from Sale and were just staying the night.

17You kept saying that you wanted to find Guy as he had your kid and you wanted her back.

18After repeating yourself about five times, you said to the victims words to the effect of, 'Sorry guys, you are safe. I just wanted my kid' and left.

19The victims decided to pack up and leave; they noticed that the flywire on the bathroom window was ripped.  They reported the matter to the Sale police and recognised you when you walked into the police station while they were making their statements.  You had attended the police station to report a theft of your belongings, as you had slept rough overnight and some of your belongings had been stolen.

20Police later found the pitchfork in a carpark near the apartments where you committed the offences.  CCTV footage from the apartments revealed that the clothing that you wore on the day that you went into the police station matched that worn by the person in the footage.

21You were interviewed, charged, and remanded in custody on 12 January 2019.

22You told the police in your interview that on the night of the offending you slept at the carpark where the pitchfork was found; that you were not happy that your 16 year old daughter was in the company of a 32 year old man.  You said that you had travelled from Moe to Sale to find your daughter as your step-daughter had said she had been missing for a week.  You said that you found out that she was in a relationship with this man 20 minutes before you went to Miss Angell's house.  You said that you went to the house, but Jade refused to see you.  You said, wrongly, that you were not holding the pipe at the time that you went there as you had dropped it down the road.  You also said, wrongly, that you did not force entry into any of the apartments where the victims were staying and did not have a pitchfork at any stage during the night that the offences occurred.

23Mr Tatlow, your offending is serious and calls for punishment which is just in all of the relevant circumstances.  Your offending must be firmly denounced.  Strong weight must be given to general deterrence in a bid to deter others from behaving in the outrageous way that you behaved.  You broke into the apartment of strangers in the dead of night and threatened them with a weapon as they were lying in their bed.  They were entitled to feel safe, but you violated this right in the most terrifying way.  You were on a quest to find the 32 year old male who you believed had taken up with your daughter.  Although your concerns about your daughter are understandable, your preparedness to take matters into your own hands, breaking into an apartment in the dead of night and threatening strangers with a weapon in order to do so, is intolerable.

24I was told by your counsel, Mr Miller, that you had taken some Valium and were also affected by alcohol at the time of the offending, which apparently accounts for you breaking into the apartment of strangers in a bid to find the 32 year old male.  This does not mitigate your moral culpability, nor does it aggravate your offending, but helps explain it.  I must say, that if you behave like this when so affected, I am concerned for the protection of the community if you return to substance or alcohol abuse in the future.

25There were no victim impact statements, but it takes no imagination to find that the impact upon each of the victims must have been significant.

26You have a rather lengthy criminal history with a significant number of prior convictions for dishonesty offences including burglary, as well as drug-related matters, and offences for violence and weapons.  You have previously had the benefit of Community Corrections Orders and suspended sentences.  You have also breached these dispositions from time to time which is  concerning.

27You pleaded guilty to the charges now before me at the case conference stage, after having conducted a contested committal hearing in which identity was in issue.  This is your right and you are not to be punished for running a contested committal, but the discount to which you are entitled is not as great as it would have been, had this step not been taken and you had pleaded guilty at an earlier stage.  However, I still allow for a fairly substantial discount in that you have saved the witnesses the time and trouble of giving evidence at trial and you have saved the community the time and expense of running a trial.

28I have been finding the question of remorse rather difficult.  I cannot find that he had much in the way of remorse, at least up to the time of the committal hearing; running a contested committal hearing where the victims were subjected to cross-examination on the basis that you were not the culprit when you were does not bespeak much in the way of remorse.  Moreover, at the time that you committed the offences before me, you were on bail for other offending which is also most concerning.

29However, you have taken responsibility since this time for your actions and have taken positive steps toward rehabilitation.  I have also factored in that on the night of the offending you apologised to the victims before leaving their room.

30I take into account your background which was set out in your counsel's original plea submissions.

31You were born in Yallourn and grew up in Morwell.  You never knew your father and your stepfather was abusive toward you, your siblings, and your mother.  Your childhood was marred by an environment of alcohol abuse, family violence, and gambling.  Everyone you knew worked in the coal industry and were heavy drinkers.

32Your mother did her best to look after you and your brothers, but she was subjected to constant assaults by your stepfather.

33You left school after Year 11 and have a solid work history, having worked in various industries in labouring roles involving very hard work.  You have worked for your present employers, on and off for a number of years.

34You have two children from a previous relationship and were stepfather to your partner's first child.  You and the mother of your children separated about
11 years ago.

35In 2015, you attended Windana in a bid to address your alcohol issues and worked for a removalist company in the Melbourne area.  Unfortunately you fell down some stairs whilst working and damaged ligaments in your ankle.  You were unemployed for eight months before being remanded for the present offending.

36You are close to your mother and to one of your brothers, both of whom you regularly contact by phone.  You have been very worried about your mother as she is in very poor health after suffering from lung cancer which saw half a lung being removed.  She is dependent on oxygen.  Her health issues were exacerbated when she was involved in a truck crash about five years ago which left her with serious injuries; she was unable to leave the house, and you have been very worried about her vulnerability to COVID-19 especially as she depends on carers to come to her to assist her with daily living.

37You have had struggles with prescription drug abuse and alcohol since you were a teenager and have had three stays in a residential facility in a bid to address these issues.

38You have had a shoulder injury which is in need of surgery, but you have been awaiting the outcome of these proceedings before you take this further.

39When I originally heard the plea, the COVID-19 restrictions were in place and the matter proceeded via Webex which made for a rather difficult process, however, I had been assisted by written submissions from each of the parties and from some material which was tendered in support of you.  As the learned prosecutor, Ms Piggott, observed, the material from Windana was somewhat unsatisfactory although you had shown some promising signs before seeing fit to discharge yourself, apparently because of your concerns about possibly contracting COVID-19.

40In all of the circumstances of your case, including the restrictions imposed in prisons when I heard the plea, your age and the fact that you had spent
310 days in custody on remand before being released on bail, and had not committed further offences, I decided to defer sentence for 12 months to see if you could demonstrate solid steps toward rehabilitation.  At the time, I indicated that I would require evidence of all of the steps that you had taken including treatment for substance abuse, drug screens, and a lack of further offending before I would consider a sentence which did not involve you serving a further period in gaol.

41I have now received the following:

a)Eight drug screens obtained over the course of the adjourned period, each of which are clear, save for one screen which indicated the presence of opiates; however, I received a prescription evidencing your need for ibuprofen and codeine which accounts for this.

b)A psychological report from your treating psychologist indicating that you consulted with Ms Lichte, psychologist, on a fairly regular basis, although there was a need to cancel some of these appointments due to work and other commitments on from time to time.  I understand you are willing to continue with such treatment, perceiving that the sessions are beneficial to you.  You have engaged well in the sessions according to Ms Lichte and are developing appropriate strategies to deal with various difficulties which you have been dealing with over the years.

c)She was of the view that you likely have a diagnosis of PTSD, as well as Other specified Disruptive, Impulse Control and Conduct Disorder. In his original plea submissions, Mr Miller said that you also suffered from bi-polar mood disorder and there is mention of this history in the Forensicare clinician's report which I understand originally emanated from those submissions.  However, I do not have an expert material before me which evidences this.  Mr Miller does not seek to rely on this aspect, so I put it to one side.

d)Another report that I have before me is a medical report in respect of your shoulder injury dated 24 September 2020.

e)A character reference from the manager of the removalist company that you work for, which is very supportive of you as a person and as an employee, as well as a character reference from your daughter, Jeordie, who speaks very highly of your progress over the past year.  She is in a good position to know as you have lived in the same household as she over that period.  I note that that is a household where consumption of drugs and abuse of alcohol would not be tolerated.

42In further written submissions, Mr Miller told me that you are still living with family members in country Victoria and you have worked with the removalist company throughout 2020 and up till now.

43In further written submissions, Mr Miller told me that you are still living with family members in country Victoria and you have worked with the removalist company throughout 2020 and up till now.

44Importantly, you have not committed any further offences during the deferred period.

45I understand that you regularly see your GP, who has weaned you off Epilim, an anti-convulsant, which was apparently to deal with the condition that I do not have sufficient evidence of, that is, bi-polar.  However, you weaned off that medication, and your GP also appears to be involved in your mental care, providing mental health care plans that enables you to keep seeing Ms Lichte.  Your GP is also involved in respect of your drug and alcohol issues.

46I was told that you have not returned to Windana, due to the significant backlog of applicants but also due to the fact that you are on the path to recovery with the help and support of your GP and psychologist; and the benefit of the help you received from Windana over the five months that you attended from November 2019.

47In all of the relevant circumstances, I assess your prospects of rehabilitation as being guardedly fair to good.  I place less than moderate weight on specific deterrence and protection of the community in view of your demonstration of your most positive steps toward rehabilitation.

48I am mindful that you have tried to change things for the better in the past but have not been successful, however, you are now at a stage where if you do not get your act together, there will be little option for you but to spend ever increasing periods in gaol.  In this respect, I note that you appear to be developing some insight and have been working hard to address longstanding issues in your life.

49Your counsel submitted that a Community Corrections Order in combination with the time you had already served in gaol was appropriate in your case.

50In view of your progress that you have demonstrated over the past 12 months,  the prosecution accepted that such a sentence was within the range of available sentences.

51I had you assessed for a Community Corrections Order and you have been deemed suitable for that disposition.  A Forensicare clinician has supported the recommendation that you continue to address your mental health and drug and alcohol issues.

52I have decided to sentence you in the way submitted, as I am of the view that you have demonstrated some impressive steps toward rehabilitation, and it is in the community's best interests and in your own best interests to keep these going.  Indeed, if you were to return to gaol, it may well be that you go backwards in this respect.  Although, it might be that if you return to court in future, it probably will be the case that there will be little option.

53You are convicted of all of the offences.

54I make a disposal order in the terms of the draft order provided by the prosecution which I understand is not opposed by you.  In respect of the summary offence and the offences on the indictment:

55You are sentenced to an aggregate term of imprisonment 310 days, and this period is to be served in combination with a Community Corrections Order.  However, I cannot place you on a Community Corrections Order without your consent.  So please listen carefully to the order that I propose.

56The Community Corrections Order would run for two years.  The conditions of the order would be firstly the mandatory terms that apply to all Community Correction Orders are:

a)You must not commit another offence for which you could be imprisoned during the period that the order is in force;

b)You must comply with any obligation or requirement prescribed by regulation 17 of the Sentencing Regulations 2011;

c)You must report to, and receive visits from, the Secretary to the Department Of Justice (or his or her delegate);

d)You must report to the Sale Community Corrections Centre before 4 pm within two clear working days of today;

e)You must let a Community Corrections Officer know within two clear working days of you changing your address or job;

f)You must not leave Victoria without first obtaining permission to do so from the Secretary to the Department of Justice (or his/her delegate);

g)You must obey all lawful instructions from and directions of the Secretary to the Department of Justice (or his/her delegate).

57The conditions that apply in addition to the mandatory terms listed are:

58Community work:  You must undergo 100 hours of unpaid community work within the next two years.  Up to 50 hours of this condition may be satisfied by the equivalent period of the successful completion of any of the treatment and rehabilitation conditions of this order.

59Supervision:  You must be under the supervision of a Community Corrections Officer for a period of two years.

60Treatment and rehabilitation:  You must undergo assessment and treatment including testing for alcohol and drug abuse or dependency as directed by the Regional Manager.  You must undergo mental health assessment and treatment including (but not limited to) mental health, psychological, neuropsychological, and psychiatric treatment in a hospital or residential facility, as directed by the Regional Manager.

61Programs re-offending: You must undergo programs or courses aimed at addressing factors relating to the offending as directed by the Regional Manager.

62Monitoring:  I am also going to monitor you on this order; that means that from time to time you will be required to attend court, which might be by video link rather than you coming into the court room.  I will receive a report from Community Corrections ahead of each appointment and we will discuss your progress.  Your first appointment with me will be on Wednesday 30 June at 9.30 am.

63Having heard the proposed Community Corrections Order, do you consent to the order?  Sorry, you have just got off the screen.  You might have pressed the wrong button.  I need to hear whether you consent to the order.

64OFFENDER:  Yes, Your Honour.

65MR MILLER:  I cannot hear you now, Your Honour.

66HER HONOUR:  You are muted.  Unmute yourself to speak, it says.  Can you hear me now?

67MR MILLER:  Yes.

68HER HONOUR:  All right.  I should tell you, that if you do not comply with all of the requirements of this order then you will face breach proceedings before me.  You will be sentenced in relation to the breach and you will be re-sentenced in relation to the charges, in which case you may well be sentenced to gaol. 
I would regard a breach of the Community Corrections Order as a most serious matter, whether it be because of further offending, or because of
non-compliance with any of the other conditions of the order.

69Do you understand this?  Sorry, you just need to turn your ‑ ‑ ‑

70OFFENDER:  Yes, Your Honour.

71HER HONOUR:  All right.  Do you still consent to the making of the order?  

72OFFENDER:  Yes, Your Honour.

73HER HONOUR:  All right.  I note for the records of the court that have just consented to this Community Corrections Order, which will be noted on the records as has been given via audio visual recording.

74Therefore, in relation to the charges, you are convicted and sentenced to a Community Corrections Order in the terms and conditions that I have just set out in combination with the gaol term that I previously announced.

75I declare that you have already served 310 days by way of pre-sentence detention. 

76If not for your pleas of guilty, I would have sentenced you to a total effective sentence of five years imprisonment with a non-parole period of three years.

77Is there anything arising, counsel?  I am sorry, Ms Piggott.  I cannot hear you.

78MS PIGGOTT:  Sorry.  My calculation, Your Honour, was the time served was 310 days, not 311.  I do not know whether Mr Miller agrees with that or not.

79MR MILLER:  No, that is right.  We did agree on that last week.

80HER HONOUR:  I beg your pardon.

81MR MILLER:  I apologise, I did not ‑ ‑ ‑

82HER HONOUR:  I do not know where I got that from.  All right, yes.  Well, thank you.  I will change that to 310 days.  So, wherever I have mentioned 311, it will be 310 days.  I will amend my sentence in that regard.

83MS PIGGOTT:  Thank you, Your Honour.

84HER HONOUR:  Thank you for that, Ms Piggott.  Anything from you, Mr Miller?

85MR MILLER:  No, nothing from me, Your Honour.

86HER HONOUR:  All right.  Yes, thank you.  All right, now did you want to speak with your client, Mr Miller, before we turn off the transmission?

87MR MILLER:  No, Your Honour.  I will make a phone call after this hearing.

88HER HONOUR:  Very well.  Thank you very much, we will now adjourn.

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