Director of Public Prosecutions v Warren
[2022] VCC 5
•10 January 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 20-01165, CR 21-01552
CR 21-02477
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JAMES IAN WARREN ANGELA PRESNELL |
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| JUDGE: | HIS HONOUR JUDGE LAURITSEN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 8 December 2021 |
| DATE OF SENTENCE: | 10 January 2022 |
| CASE MAY BE CITED AS: | DPP v Warren & Anor |
| MEDIUM NEUTRAL CITATION: | [2022] VCC 5 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Three co-accused – all charged with conspiracy to cause injury intentionally – multiple summary offences –– parity difficult to assess due to different custody status’ of each accused – pleas of guilty entered at an early opportunity – good prospects of rehabilitation – impact of COVID-19 on time in custody
Legislation Cited: Sentencing Act 1991
Cases Cited: Worboyes v R [2021] VSCA 169
Sentence: Warren: 632 days imprisonment and an aggregate fine of $1250
Presnell: 18 month Community Correction Order
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr M. Sharpley | Office of Public Prosecutions |
| For Accused Warren | Mr T. Marsh | Stary Norton Halphen |
| For Accused Presnell | Ms A. Cannon | KPW Lawyers |
HIS HONOUR:
1James Warren and Angela Presnell, each of you has pleaded guilty to a charge of conspiring with each other to commit an offence, being causing injury intentionally.
2James Warren, you have also pleaded guilty to two charges of possession of a drug of dependence, a charge of retaining stolen goods and the summary charges of possessing cartridge ammunition without a licence, possessing dangerous articles at a public place, use of an unregistered motor vehicle and unlicensed driving.
3Angela Presnell, you have also pleaded guilty to charges of burglary and theft.
4The maximum penalties for these offences are:
(a) conspiracy to commit an offence – 10 years' imprisonment.
(b) burglary – 10 years' imprisonment.
(c) theft – 10 years' imprisonment.
(d) possession of a drug of dependence – these charges relates to you,
Mr Warren:(i)in relation to the Cannabis L, since the quantity was a small quantity and your possession was not committed for any purpose related to trafficking – five penalty units;
(ii)in relation to the methylamphetamine, your possession was not committed for any purpose related to trafficking – 30 penalty units or one year imprisonment;
(e) retention of stolen goods – 15 years' imprisonment;
(f) possession of cartridge ammunition – 40 penalty units;
(g) possession of a dangerous article – 60 penalty units or six months' imprisonment;
(h) use an unregistered motor vehicle – for a second and subsequent offence – 50 penalty units;
(i) unlicensed driving – 60 penalty units or six months' imprisonment.
Circumstances
5Nicholas Molina[1] is the son of Hector[2] and Elvia Molina[3].
[1] A pseudonym.
[2] A pseudonym.
[3] A pseudonym.
6On 17 April 2020, his parents left their home in Highton[4] in order to go to work. At 1.43 pm the three of you, and I am including Mr Camm, together with two others arrived at the property by car, looking for Nicholas. The three of you had previously agreed to assault him.
[4] A pseudonym.
7You, Mr Warren, were armed with a baseball bat while another of your group, Anthony Carroll, was armed with a hammer. The fifth member of your group, whose identity is unknown, remained in the car and kept a lookout.
8The three of you approached the front door of the house. Mr Camm knocked on the front door and yelled out for Nicholas while calling him 'a fucking rapist'. You, Mr Warren, also knocked on the door and called out to Nicholas. Both of you, Mr Camm and Mr Warren, left the front door after one of you spied a CCTV camera.
9You, Ms Presnell, rang the front doorbell and, using the sleeve of your jumper, opened the front door. You and Mr Carroll entered the house. Both of you searched every room in the house and both of you searched through all the drawers. You, Ms Presnell, stole a torch. This, and the entry into the house, constitutes the charges of burglary and theft against you, Ms Presnell. You left the house through the front door, which remained open.
10The four of you, including Mr Carroll, searched around the house. Mr Carroll opened the garage doors. Mr Warren, you looked into a sedan parked in the driveway.
11Ultimately, you realised Nicholas was not home. The four of you returned to your car and were driven away.
12Nicholas’ parents returned home at about 5.50 pm. They saw the front door was open and the state of the inside of the house. Realising the house had been burgled, they called the police.
13At about 5.30 pm the next day police members found you, Mr Warren, unconscious and in the driver's seat of a white Commodore. The engine was running and the vehicle was in the middle of the road at the intersection of Princes Highway and Sparks Road in Norlane.
14The registration plates on the vehicle had been stolen in February 2018. There was another registration plate to the vehicle which had also been stolen. The vehicle had been unregistered since 3 June 2019. Mr Warren, your possession of these registration plates constitutes Charge 3 on the indictment numbered L10935407.1. Your use of the vehicle constitutes the Summary Charge 14, using an unregistered vehicle.
15The police searched the vehicle. Relevant to you, Mr Warren, they found:
(a) a baseball bat and tomahawk. These items are the subject for the Summary Charge of possessing dangerous articles, which is Summary Charge 11.
(b) a live .22 calibre round and a live shotgun shell. These items constitute the charge of possession of cartridge ammunition, which is Summary Charge 10.
(c) an Everlast bag containing two plastic bags. One of these bags contained 2.3 grams of Cannabis L and the other, 0.8 grams of methylamphetamine. Your possession of these bags constitutes Charges 1 and 2 on the indictment L10935407.1, which are the charges of possessing methylamphetamine and Cannabis L respectively.
16At the time you were unlicensed to drive a motor vehicle. This circumstance constitutes Summary Charge 15, unlicensed driving.
17You were arrested but not interviewed due to your unfitness. Later you were interviewed while on remand. Although you answered questions, you made no admissions.
18Mr Carroll was arrested on 2 May 2020 and declined to be interviewed.
Pre-Sentence Detention
19You, Mr Warren, were remanded in custody on 18 April 2020 and have remained in custody since then. As at 10 January 2022, you have been in custody for 632 days.
20You, Ms Presnell, have 15 days of pre-sentence detention in respect of these charges.
Criminal History
21You, Mr Warren, between 8 August 2001 and 2 September 2019, have appeared 10 times in Victorian courts and been found guilty or convicted of 34 offences. You have been sentenced to immediate imprisonment twice with the most serious being in this court on 5 June 2013 for recklessly causing serious injury and affray. You were sentenced to 16 months' imprisonment with a
non-parole period of six months' imprisonment.22On 23 April and 11 May 2018, you appeared twice in the Bundaberg Magistrates' Court and were convicted of five offences. For three of the offences, you were fined. On two you were sentenced to 14 days' imprisonment suspended for four months. These were drug offences.
23You, Ms Presnell, have appeared only once in court, being the Albury Local Court, on driving offences. You were fined small amounts, placed on an 18 month bond and disqualified from driving for two years.
Mr Jeffrey Cummins
24Jeffrey Cummins is a clinical and forensic psychologist. At the request of your solicitors he interviewed you, Mr Warren, on 18 January 2021.[5]
[5]Report dated 22 January 2021.
25He diagnosed you as suffering from an Anti-Social Personality Disorder. He considered the disorder is chronic. It developed in your mid to late teens. He diagnosed you as also suffering from what he called “a Complex Post-Traumatic Stress Disorder”. He considered the circumstances leading to the former disorder also led to the development of the latter.
26Mr Cummins made two further observations:
(a) spending more time in a custodial setting is likely to reinforce your sense of failure; and
(b) as to your offending again, it depends very much on whether you do not use methamphetamine.
27Somewhat surprisingly, he made no recommendations for treatment. However he added:[6]
‘I encouraged him to consider exploring his Aboriginality as, in my experience, for a percentage of offenders this can often be a pathway to their rehabilitation.’
[6]Report at paragraph 48.
Personal Circumstances
Mr Warren
28Mr Warren, you are now 37. You were born in the Echuca area. You have a brother, a half-brother, a sister and two step-sisters. Through your mother, you strongly identify as Koori or Aboriginal.
29Your parents separated when you were about five. At various times, you lived with your father or your mother. Unfortunately, your mother used drugs heavily. She regularly held drug-fuelled parties. From an early age you were exposed to drug use and violence. An instance of the violence occurred when your grandfather entered a house where you were present. He was armed with a loaded shotgun and threatened the people inside the house.
30At nine, you used cannabis supplied to you by your mother. At 13 you were drinking alcohol. By 15, you were smoking cannabis daily. Soon afterwards you starting using amphetamines.
31Because of your mother's itinerate lifestyle, you attended various country schools before ceasing schooling while in Year 9.
32In your late teens you went to live with your father. He was a butcher and you started an apprenticeship with him, which you completed.
33Again, during your later teen years, you met Kylene. You and she have two children, now aged 12 and 17. You and Kylene bought a house in Leitchville, near Cohuna. Unfortunately, it was sold when you were 28 years old due to the inability to make the mortgage repayments. There had been a downturn in the livestock industry due to drought.
34You and Kylene moved to Queensland, where you worked as a butcher. You maintained your employment as a butcher until 2018. In June 2018 you returned to Melbourne, while Kylene and the children remain in Queensland. You hope to return to live with her and your children after your release from custody. She is unwell, having been diagnosed with cancer and lung disease.
35In 2009 you were injured in a motor vehicle accident. You injured your spine and your right shoulder. The former is described by Mr Cummins as a fracture at the top of the spine. You still take pain relieving medicines.
36Also in 2018, you suffered a stroke. It had transient effects on you. You take medicines to reduce the risk of another stroke. They include, statins and blood pressure lowering medicines. Despite your problems, you describe the state of your health as good.
37In custody you are an “essential working prisoner”, working daily between 9 am and 3 pm in the laundry.
Future
38Your mother, Maureen, wrote to the court on 22 October 2021. She is a Koori Elder living in Wodonga. For the future, she speaks of two things; your desire to be reunited with your partner and children; and her belief in the rehabilitative power of her community. She said:
“With correct support & programs & support from family elders & community and given the opportunity to mend his ways, james will be able to turn his behaviour around and be the young strong stable man he used to be.”
39Kylie Walkerden is a social and emotional wellbeing worker with the Mungabareena Aboriginal Corporation in Wodonga. Writing in July 2021 she stated a willingness to assist you on your release:
“Part of my program is to support clients to build healthy supportive relationships within the community, building healthy relationships helps to connect culturally and aid in spiritual healing, this will be highly beneficial to James upon his release. I will also have capacity to link James in with other services and supports relevant to his needs and appropriate to his circumstances at the time.”
Ms Presnell
40Ms Presnell, you are now 28. You have a younger sister.
41You grew up in the Albury and Wodonga area.
42Your parents separated when you were seven. Following the separation, you lived mainly with your mother.
43You left school during Year 10. You obtained a job and moved out of home. For a while you managed a bakery. You also worked in a supermarket. You have not had steady employment since your late teenage years.
44You are the mother of three children. With the older two, you share equal custody with their father. The youngest, aged three, by arrangement lives with your sister.
45You were in another relationship. It lasted six years. Your partner was violent to you. The relationship ended when he went to prison. He is not the father of any of your children. You have had no contact since the relationship ended. This experience of family violence has led to a diagnosis of Post-Traumatic Stress Disorder. It appears you are prescribed medicine for the condition by your general practitioner in Wodonga.
46In early 2018, your best friend, Wayne, died in a motor vehicle accident. Your counsel traces your offending from the time of Wayne's death.
47You have a longstanding issue with drugs. At the age of 12 you were taking prescription medicines, including Lyrica and Morphine. Later you used amphetamines, including Methylamphetamine. In early 2021, you were using Heroin and GHB. When interviewed by a member of the Court Integrated Services Program on 17 August 2021, you said you had not used drugs for about eight months due mainly to your imprisonment. Before that, your use was heavy: half a gram per day of Methylamphetamine, 2 grams a day of Heroin and 30 millilitres of GHB daily.
48On about 23 January 2021, you purposely overdosed and you were admitted into a psychiatric unit, Nolan House, for four or five days. On your discharge from Nolan House, you were arrested and remanded in custody for offences committed in New South Wales. On 1 June 2021, you were sentenced in the Local Court at Albury for those offences to 10 months' imprisonment with a
non-parole period of five months imprisonment. You were released on parole.49On 15 August 2021, you were arrested on a warrant for this matter and extradited from New South Wales. On 26 August, you were bailed with a condition to reside with your mother and a condition relating to the Court Integrated Services Program.
50You were due to appear in the Magistrates' Court at Wodonga on 21 December 2021 to answer two set of charges laid by police members James and Niksic.
Court Integrated Services Program
51As I said earlier, in August you were bailed with a CISP condition. Although it is early days with that condition, the most recent progress report is favourable.
52You are residing with your mother in Wangaratta. It is a two bedroom unit, which is overcrowded when your children visit. You would like your own home. You have limited contact with your youngest child, who lives in Albury.
53Both your mother, grandmother and sister have written letters about you. Plainly, they will give you every support. Your mother speaks of your efforts to reconnect with your children after an absence of years, your efforts to find work, obtain separate accommodation and to undertake a self-help course online.
Discussion
54Section 5(1) of the Sentencing Act 1991 (“the Act”) sets out the purposes for which sentences may be imposed:
(a) to punish the offender to the extent and in the manner which is just in all of the circumstances;
(b) to deter the offender or other persons from committing offences of the same or a similar character;
(c) to establish conditions within which it is considered that the offender's rehabilitation may be facilitated;
(d) to manifest the denunciation of the type of conduct the offender engaged in;
(e) to protect the community from the offender.
55In most cases, one or more of those purposes are relevant. It is true in each of your cases, Mr Warren and Ms Presnell.
56Plainly, the purposes of deterring you and deterring others from committing the principal offence, or similar offences, are important. The community cannot tolerate people conspiring to injure another person. My sentences upon each of you should have such a deterrent effect.
57My sentence should manifest a denunciation of these offences. They should also act to protect the community from you. Aspects of these purposes may be achieved through your rehabilitation. For if you are rehabilitated, then you will not re-offend by committing these or similar offences again.
58Section 5(2) of the Act sets out factors which I must, if they are relevant, take into account in sentencing you.
Guilty Pleas
59Each of you pleaded guilty to these offences on the morning of the committal hearing, before any evidence was given. Prior to the committal hearing, there had been two committal case conferences. Your pleas were not entered or indicated at the earliest reasonable opportunity. That would have occurred at the first committal case conference. However, they were entered at an early opportunity.
60In almost every case, a plea of guilty deserves a mitigation of the sentence which would be otherwise imposed in the absence of such a plea. At the very least it avoids the need of a trial. This saves the time and expense of a trial and allows other cases to be heard earlier than would otherwise be the case. It avoids the need for witnesses to give evidence at a trial. Generally, this is an onerous task for witnesses.
61Due to the restrictions caused by the pandemic, the courts have struggled to deal with criminal cases efficiently. This has prompted the Court of Appeal, in the case of Worboyes v R[7], to explain that pleas of guilty made at this time are worthy of even a greater discount of the sentence. It is important to quote a passage from the Court's judgment in Worboyes' case to show the emphasis placed on pleas of guilty at this time of restriction:[8]
“As is abundantly clear, one of the pernicious effects of the current pandemic is that the lists of the criminal courts in this State have become severely congested. Unacceptable delay in the disposition of criminal cases is endemic. Indeed, it is not an overstatement to say that the system of criminal justice in this State is in crisis, requiring a response from the courts. We therefore consider that, whilst the courts of this State continue to labour under the adverse effects of the pandemic, a sentencing court should view a plea of guilty as carrying with it a greater utilitarian benefit than at other times and in other circumstances, and, concomitantly, as attracting an augmented mitigatory effect on sentence, simply because the plea will benefit the beleaguered administration of justice. Given the unhappy state of the courts’ lists, the courts must, in an endeavour to alleviate the strain on the system, encourage those accused who are guilty to so plead. Such encouragement must come from an actual and palpable amelioration of sentence.”
[7][2021] VSCA 169.
[8]At paragraph 35.
62In the case of each of you, Mr Warren and Ms Presnell, your respective pleas of guilty are evidence of your remorse.
Prospects of Rehabilitation
63Mr Warren, there are two factors bearing upon my assessment of your prospects of rehabilitation. First, you identify as Koori and want to understand who you are and where you came from. It is through an understanding of who you are that you can look to the future. This is the theme expressed by your mother and Ms Walkerden. This is an important factor.
64On the other hand, you have a longstanding addiction to substances, especially methamphetamine. It is difficult to rid oneself of such an addiction.
65Overall, I consider your prospects of rehabilitation are positive.
66In relation to you, Ms Presnell, your prospects of rehabilitation are also good. You have done well on the Court Integrated Services Program. You want to own your own home so that you can accommodate your children. You would like to work. You have the unqualified support of your family.
67Ms Presnell, I ordered an assessment in relation to a Community Correction Order. You were assessed as suitable for such an Order. I will adopt the assessor's recommendations.
68For the purpose of that assessment, you were also interviewed by a registered nurse, Gregory Day, for the purpose of whether to impose a mental health condition as part of the Community Correction Order. I will also adopt Mr Day's recommendation.
Sentence
Mr Warren
69Mr Warren, on the charge of conspiracy to commit an offence, I will sentence you to 632 days' imprisonment.
70On the charge of possessing methylamphetamine, I will fine you $500.
71On the charge of possessing Cannabis L, I will fine you $100.
72On the charge of retaining stolen goods, I sentence you to one months’ imprisonment.
73On the charge of possessing cartridge ammunition, I will sentence you to 14 days' imprisonment.
74On the charge of possessing dangerous articles, I will sentence you to six months' imprisonment.
75On the charge of using an unregistered motor vehicle, I will fine you $250.
76On the charge of unlicensed driving, I will fine you $400.
77The sentence on Charge 1 will be the base sentence. The sentences of imprisonment on the other charges will be served concurrently with themselves and with the base sentence.
78I declare the 632 days of your pre-sentence detention as time served under my sentences. I will refer the collection of fines to Fines Victoria.
Ms Presnell
79Ms Presnell, on the charge of conspiracy to commit an offence and on the charges of burglary and theft, I will sentence you to a Community Correction Order of 18 months duration with the following conditions:
(i)to undergo any assessment and treatment, including testing, for drug abuse or dependency;
(ii)to undergo any mental health assessments and treatment;
(iii)to undertake any program that addresses factors related to your offending behaviour; and
(iv)be subject to being supervised, monitored and managed by the Secretary.
80In proposing that order, I have taken into account your 15 days of pre-sentence detention. Pausing there - and this is addressed to you, Ms Cannon - is your client prepared to enter into a community correction order in those terms?
81MS CANNON: Yes, Your Honour, she is.
82HIS HONOUR: Although it's probably unnecessary to say in this court, the Correction Order would be proceeded by a conviction for the offences.
83MS CANNON: Yes, Your Honour.
s6AAA Declaration
84If each of you had not pleaded guilty to the various charges and had been found guilty by a jury, I would have sentenced you as follows:
(a) Mr Warren: 900 days' imprisonment.
(b) Ms Presnell: a Community Correction Order of two years duration with the same conditions.
Parity
85Although it is made a little bit more difficult by the absence of Mr Camm in the sentencing process it was important that I address the issue of parity.
86The issue of bail and no bail has made the issue of parity difficult. Mr Warren, you alone came to court today in custody, having been in custody for 632 days. Your co-offenders, Mr Camm and Ms Presnell, were bailed after different periods in custody. You have pleaded guilty to more charges but the additional charges are relatively unimportant compared with the principal charge of conspiracy. Your prospects of rehabilitation are less favourable than those of Mr Camm and Ms Presnell. Your criminal history is more extensive than the other two and certainly much more so than Ms Presnell.
Disposal Order
87Finally, I make the disposal orders sought.
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