Director of Public Prosecutions v Till

[2014] VCC 2224

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-01217

DIRECTOR OF PUBLIC PROSECUTIONS

v

BERNARD TILL

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JUDGE:	HER HONOUR JUDGE CANNON
WHERE HELD:	Melbourne
DATE OF HEARING:	12 November 2014
DATE OF SENTENCE:	17 December 2014
CASE MAY BE CITED AS:	DPP v Till
MEDIUM NEUTRAL CITATION:	[2014] VCC 2224

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:             Sentence – Plea of guilty – Theft – Burglary – Criminal record – Long history of drug use – Serious medical and health issues

Cases Cited:            R v Verdi’s (2007) 16 VR 269

Sentence:Total Effective Sentence 14 months’ imprisonment with 8 months imprisonment to be served before being eligible for parole – Ancillary Order – Disposal and Forensic Sample orders

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. Ayres	Office of Public Prosecutions
For the Accused	Mr C.T. Farrington	Ballmer & Associates

HER HONOUR:

1Bernard Henry Till, you have pleaded guilty to one charge of burglary and one charge of theft, each of which carry a maximum penalty of ten years' imprisonment.

2The maximum penalties reflect Parliament’s view as to the seriousness of these offences.

3Your offending was opened as follows:

4Sometime prior to 7.00 pm on 2 January 2014, you, who were then aged 49, and co-offender, Christian Burton aged 34, gained access to the emergency fire escape stairwell of an arcade in the city and remained hidden there until the arcade had been locked up. 

5At about 12.15am on Friday 3 January 2014, you and Burton emerged from the fire escape emergency exit door on the second level of the arcade.  Each of you were carrying a back pack and were wearing dark clothing with a hooded top which covered your head.  You were also carrying a satchel over your shoulder.  You removed a nearby fire extinguisher from the wall and lodged it inside the emergency exit door, preventing it from closing. 

6You and Burton ran down the internal stairs to the ground level and approached  a shop called Gold Digger Trading Co.  The business buys and sells gold, jewellery, watches and other valuable commodities which are displayed in the front window of the premises and inside cabinets and partitions around the store.    Burton then produced a half-broken brick from inside his bag and threw it against the laminated glass entrance door.  He then kicked through the glass panel, causing the bottom half of it to shatter. 

7You both entered through the broken door and proceeded to ransack the premises, filling your backpacks with items of jewellery taken from various shelves and smashed display cabinets.  This caused the internal motion detector alarms to activate which notified a security company.  A number of nearby residents heard the sound of breaking glass and called 000. 

8After being inside the premises for less than one minute, you fled the scene with your bags and headed back up the internal staircase to the second floor of the arcade.  You entered the same emergency exit door which had previously been propped open and made your way to a ground floor exit which opens on to Manchester Lane.  As you were running, some of the items of stolen jewellery fell out of your bags and on to the ground. 

9You turned on to Flinders Lane and began running towards Elizabeth Street when you were seen by patrolling police officers responding to the 000 call. They ordered you to stop.  You then turned left on to Degrades Street and were pursued by police officers on foot.  At one point, you ran towards Constable Ben Mitchell with your fists raised and you were subdued by capsicum foam and detained.  Mr Burton dropped his back pack on Degrades Street and continued running towards Flinders Street, before he was apprehended by Constable Matthew Flanders. 

10Your bags were searched and contained numerous items of jewellery stolen from the premises.  A satchel carried by you contained a half-broken brick and a head torch with your name written on it.  Mr Burton was found to have a screwdriver concealed down the front of his pants.  [1]

[1]Statements of Const. Ben MITCHELL (pp.52-54) & Const. Matthew FLANDERS (pp.56-59)

11A total of 272 items of jewellery were stolen by you from the business, with a total retail value of $149,720.  All items were recovered. 

12You were arrested and taken to the East Melbourne Police Station where you were interviewed but made ‘no comment’ answers to questions regarding the offending.

13Your offending is aggravated by the fact that there was a fairly significant degree of planning, although your getaway strategy was somewhat unsophisticated in nature, as was your mode of entering the shop.

14As to your counsel’s submission that it was your co-offender’s idea to commit the offences and it was he who planned these and who surveilled the premises and pressured you to take part, there is no evidence in this regard. In the absence of evidence, I make no finding as to these matters, notwithstanding that your co-offender does have a concerning and relevant criminal history. Insofar as the offending itself is concerned however, you were both active participants, both of you having a need for financial gain.

15The value of items taken was quite significant, albeit that all of the items were recovered. Obviously, there are burglaries and thefts which involve far lesser and far greater values of goods. Although the recovery of the jewellery was no thanks to you, it is a relevant matter in your favour that there was no permanent loss to the victim insofar as items taken from the shop were concerned.

16I have no victim impact statement, however, you and your co-offender smashed a window causing damage to the premises, which no doubt caused a degree of inconvenience and interruption to the victim in conducting his business. No doubt, finding your business premises broken into and plundered would be an upsetting experience.

17I must impose a punishment which is just in all of the circumstances of your case and your offending conduct must be denounced.

18You have a relevant criminal history, although the last offending occurred ten years before the offences for which I now sentence you.  I factor in that your criminal history is somewhat dated.  You have a number of prior court appearances in respect of dishonesty offences, including theft.  You have  two prior convictions for burglary.  You have prior criminal matters - the retention of stolen goods and going equipped to steal. You also have a prior matter for possessing an article of disguise. There are no subsequent criminal offences alleged against you.

19Notwithstanding that you entered pleas of guilty in this court at a directions hearing, I understand that the matter proceeded by way of straight hand up brief in the court below and that you entered pleas of not guilty at that time as you did not have the benefit of representation until that day and the value of the goods stolen was not resolved. The Crown accept that you are to be treated as a person who entered a plea of guilty at an early stage. In the circumstances, I allow for a substantial discount in the sentence you would otherwise receive, as you have saved the witnesses the time and trouble of cross-examination at committal and trial and you have saved the community the time and expense of contested proceedings.

20By way of background, I was told that you are now 50 years old. You have been in a de facto relationship for 23 years and there is one child of that relationship, who is now 21 years old. Your son is studying at university.

21You are one of eight children. Unfortunately, you never had a meaningful relationship with your father, who left your family when you were only four. You had a very close relationship with your mother, who, sadly, passed away in 2004. Since then, you have had no contact with your siblings as your mother had been the glue keeping the family together.

22You left school when you were 15 years old, having struggled academically. You commenced to use heroin and other opiate-based drugs when you were 17,  having started with marijuana when you were 14.  Marijuana use grew to a hefty daily habit by the time you were 16 and continued until you were 21. However, it was heroin and opiates which eventually took hold of you, and you have battled with this addiction over a number of years now.  Sometimes you have managed to abstain from drug use for fairly lengthy periods. At one stage your addiction was costing you $600 a day. You told Carla Lechner, psychologist, that you still use heroin or opiates ‘a couple of times a week’.  You are on the methadone program. Your most recent relapse commenced when you were prescribed Endone and Oxycontin for your broken leg which led you to return to heroin use. You have attended two counselling sessions with a psychologist in recent times in respect of your general practitioner’s diagnosis of depression, stress and substance abuse. Your difficulties with drug use puts you at risk of further offending in the future. You must know that if you do not finally defeat your addiction, it will defeat you. Even if you do not care about your own future in this regard, your son needs a father in his life who he can look up to. You are not beyond hope. You have shown that you can remain offence free for a significant period and that you can remain drug free for a significant period.  Similarly, you are not averse to honest work.

23You have some significant health issues. You suffer from Hepatitis C and skin cancer and you have been recently diagnosed with cirrhosis of the liver with a high risk of complications. Such complications include gastrointestinal bleeding and primary liver cancer, both of which are life-threatening conditions.  I refer in this regard to the report of Dr Stephen Bloom, Gastroenterology Registrar, from Eastern Health Gastroenterology, dated 15 December 2014. Dr Bloom says that you will require regular ultrasounds and endoscopic assessment for the risk of life-threatening bleeding. He said that it would be highly likely that you would require treatment for Hepatitis C in the near future and would require significant specialist input and close follow up, initially with second weekly outpatient reviews.

24You have been under the care of Dr Andrada, a general practitioner, since December 2012, and in more recent times you have been seen by Dr Suong Le, Consultant Gastroenterologist, from Monash Health. Dr Le writes in his report dated 12 December that you had recently been diagnosed with cirrhosis, being permanent scarring of the liver, due to chronic HCV.  Because of your condition, you are not a candidate for interferon-based therapies. An application on compassionate grounds has been made for a new therapy but it will take four to six weeks for your application to be processed and determined. There is no guarantee that your application will be successful, and it is anticipated that there will be a great deal of competition throughout Australia for the new treatment which will be limited in its availability. Otherwise, you would have to wait for two to three years for this kind of treatment.  Therefore, the way in which you are to be treated for this rather serious condition is uncertain at this stage, as is your prognosis. In relation to the skin cancer problem I understand that you have been referred to the Peter MacCallum Clinic but I am unaware as to your present condition insofar as this health problem is concerned.

25Mr Farrington on your behalf submitted that in view of the medical material before me, the treatment and monitoring required of you, and the risk of complications of a life-threatening nature that in all of the circumstances of your case an immediate custodial sentence would be inappropriate and that all sentencing principles could be addressed by a Community Corrections Order. Unfortunately, he was not aware as to the level of medical attention that prison could provide in your case.

26I make a good deal of allowance for the fact that time in custody will be harder for you than for someone without your serious health issues and I have made allowance for the uncertainties of and difficulties with treating the cirrhosis and your inevitable anxiety about this, as well as your Hepatitis C status.  I am not of the view however that your condition is so dire that imprisonment is not appropriate for this reason.

27I take into account the report of Ms Lechner dated 6 November 2014 in respect of your mental state at the time of the offending and at the time of her assessment of you on 15 October this year. It was not put that your moral culpability ought be reduced; nor that any other Verdins considerations applied in your case. I take into account Ms Lechner's findings in a general sense, however.

28You have a somewhat fractured work history due to your problems with drugs over the years. You have done what you could however to maintain employment, working in various fields, including small acting parts on television. Your drug abuse was so severe that you have been on the disability support pension from 2000 to 2010.  Between 2010 and 2012 you worked for Jamco Signs, replacing signage on billboards. However, in October 2012 you broke your leg on site and were placed on workers compensation payments. Ultimately, you lost your position. Prior to the offending, you had not been employed since August 2013. For the past three months, you have worked as a labourer in a building maintenance company.

29At the time of the offending you were under a good deal of stress. You had returned to heroin use and were suffering financial difficulties as well as a breakdown in your relationship. You had demolished the house that your family lived in and built two dwellings on the one block of land. Your intention was to live in one of these and to sell the other. However, you have not been able to obtain permission to subdivide the property, and as at the time of the offending, you were in arrears in respect of your mortgage and the increasing debt was exacerbated by you spending money on heroin.

30You have expressed shame and remorse to Ms Lechner, psychologist, and Ms Lechner said that you were able to reflect on the impact of your behaviour on yourself and on others. I was not advised as to the detail of such reflections. As against this, when it comes to your offending, you embarked on a fairly sustained course of conduct.  This was no spur of the moment decision to offend which you subsequently came to regret. You had a good deal of time to reflect and pull out of the offending if you wished to do so, but you kept going. In this respect, I do not accept your report to Ms Lechner that you joined your co-offender in the fire exit on impulse. You were clearly prepared in terms of your mode of dress and the equipment you had with you in order to commit this offence.

31I factor in that the inability to sell the second dwelling on your house block and the ramifications of this for your financial situation and your family will weigh heavily upon you whilst incarcerated. I also factor in that you have the support of your partner and child to look to in the future, which are positive elements for your prospects of rehabilitation.

32In all of the circumstances of your case, I find that your prospects of rehabilitation are fair. You have demonstrated in the not too distant past that, on balance, you are older and wiser and have been able to reflect with some insight as to the wrongfulness of your actions in respect of the offences before me.  On the other hand you have abused drugs for a substantial part of your life, turning to drug abuse in times of stress, which puts you at significant risk of re-offending. Your rehabilitation will depend on your ability to stop taking drugs and to devote yourself to your family and to a crime free existence.

33In making the finding as to your prospects of rehabilitation,  I have also factored in your current medical condition.  I attach some weight to specific deterrence and protection of the community. However, I must give strong weight to general deterrence in a bid to deter others from behaving as you have.

34Your counsel submitted that a Community Corrections Order was warranted in this case, placing particular emphasis on your medical condition and the significant period between the last of your prior matters and the offence before me. He submitted that you had reached a crossroads in your life where you would benefit from such a disposition, as would the community. The prosecution submitted that an immediate term of imprisonment is the only appropriate sentence.   This submission was made again today after further medical evidence was before me and further submissions were made by your counsel.

35Mr Till, you have had the benefit of Community-Based Orders in the past, and although there was a lengthy gap in time before you returned to offending, I am of the view that a Community Corrections Order cannot be justified in your case in view of the weight I must attach to all relevant sentencing principles. However, I will ensure that Justice Health is advised today of your health issues and that all necessary steps are taken to address these in accordance with the expert reports which with your consent will be provided to the relevant authorities to assist them in appropriately monitoring you and putting into place an appropriate treatment regime.

36You are convicted in respect of both of the offences.

37Ancillary orders:

38I make a forensic sample order which is not opposed by you because of the seriousness of the offending before me, because of your prior convictions and because it is in the public interest to make such an order. I should warn you that if you fail to co-operate in the taking of the sample then reasonable force may be used by the authorised officer in order to take it.

39I make a disposal order in the terms set out in the document handed to me by the Crown which is not opposed by you.  I should also say in relation to the forensic sample order I make it also on the basis that it is not opposed by you.

40in relation to Charge1, you are sentenced to 14 months' imprisonment. In relation to Charge 2, you are sentenced to eight months' imprisonment

41The sentences are to be served concurrently with each other, producing a total effective sentence of 14 months' imprisonment and I direct that you serve eight months' imprisonment before becoming eligible for parole.

42If not for your pleas of guilty I would have sentenced you to a total effective sentence of 3 and a half years' imprisonment with a non-parole period of two years’ imprisonment.

43Is there anything further?

44COUNSEL:  No, Your Honour.

45HER HONOUR:  Thank you, if you could please remove Mr Till.

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