Director of Public Prosecutions v Waters
[2021] VCC 627
•18 May 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
CR-20-01690
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRADLEY WATERS |
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JUDGE: | HER HONOUR JUDGE CANNON | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 25 March (Plea) and 18 May 2021 (Further Plea | |
DATE OF SENTENCE: | 18 May 2021 | |
CASE MAY BE CITED AS: | DPP v Waters | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 627 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Sentence - Pleas of guilty - Burglary - Theft of Firearms - Theft - Possess drug of dependence - Summary offence commit indictable offence whilst on bail - Lengthy criminal history - Suffered significant traumatic event in early childhood - History of drug and alcohol abuse from young age - Confirmed intellectual disability - Suffering major depressive order at the time of the offending - Lack of sophistication in offending - No reliance placed on Verdins - Perception, judgment and ability to reason affected by drug addiction, underlying mental health issues and intellectual disability
Cases Cited:R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269
Sentence: Convicted and sentenced on Charges 1 to 5 and summary offences to 251 days’ imprisonment together with Community Corrections Order (CCO) of 2 years’ duration together with Justice Plan - 251 days’ imprisonment declared as having already been served as part of sentence imposed - s.6AAA Sentencing Act 1991 declaration - Ancillary Disposal order
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr M. Roper | Solicitor for the Office of Public Prosecutions |
| For the Offender | Mr B. Nibbs | Clancy Solicitors |
HER HONOUR:
1Bradley Waters, you have pleaded guilty to one charge of burglary, one charge of theft of firearms, three charges of theft and one charge of possessing a drug of dependence.
2You have also pleaded guilty to three charges of the summary offence of committing an indictable offence whilst on bail.
3The maximum penalty for burglary and theft is 10 years’ imprisonment, for theft of firearm – 15 years’ imprisonment and possessing a drug of dependence – in your particular case, five penalty units.
4The maximum penalty for summary offences is three months’ imprisonment.
5I must take into account the maximum penalties in sentencing you as these reflect the seriousness with which Parliament regards the offences which you have committed.
6I was told that you were 20 years old at the time of the offending and living with your mother in country Victoria. At that time you were unemployed.
7On 5 August 2020, between 7.00pm and 3.00am the following day, you attended a commercial building which housed a fence-contracting business. You removed a number of tools from compartments at the back of a truck, then entered a shed near the truck, giving rise to Charge 1, burglary. Once in the shed, you gathered various power tools which were listed in the prosecution opening. You stole a significant number of items from the owner of that business.
8Whilst in the shed, you also stole a semi-automatic .22 rifle and an air rifle, both of which were unregistered and unsecured. This gives rise to Charge 2, theft of firearms. According to the owner of these weapons and the tools, the total value of the tools was at least $4000. Your theft of the tools gives rise to Charge 3 – theft.
9On a date between the hours of 10.00pm in the evening and 9.15am the following day, you went to an address in the same country town, which was owned and occupied by Mr and Mrs Avery. Whilst there, you removed a Royal Enfield motorbike from the back of a trailer which was parked in the driveway. This gives rise to Charge 4 – theft. You also removed a black Compound bow and associated equipment, including arrows, from the back of a trailer. This gives rise to Charge 5 – theft.
10You later admitted that you had arranged to meet an unknown person at a park nearby and exchange the motorbike for a down payment of $200, expecting to be paid more money later. The motorbike was valued at about $15,000 and the Compound bow and accessories was valued at about $3000.
11On 7 September 2020, at about 5.30pm, police attended a semirural vacant property and found you and another male in the front of the property. Upon seeing the police, you ran out to the back of the property and could not be found.
12A search of your car was conducted and bags containing a quantity of cannabis and cannabis seeds were found, giving rise to Charge 6, possessing a drug of dependence.
13In the back of the car were a number of power tools which were linked to the burglary that you had previously committed.
14On 7 September 2020, your mobile phone was analysed by police and photos of the stolen firearms, stolen tools, stolen motorbike and stolen bow were found. The photos seemed to have been taken inside a caravan which was occupied by you.
15On 8 September 2020 at about 10.30am you were arrested. A Record of Interview was conducted in the company of an independent third person who attended via phone link due to COVID-19 restrictions. You made full admissions to all of the offences, but you did not provide enough detail so as to help police with the whereabouts of the missing firearms.
16You were on bail at the time of these incidents, having been bailed on 27 July 2020, to appear at the Benalla Magistrates’ Court on 24 November 2020. You had been charged with handling stolen goods and dealing with property suspected of being proceeds of crime, which had allegedly been committed on 12 July 2020. Your offending whilst on bail gives rises to the three summary charges of committing an indictable offence whilst on bail.
17Mr Waters, your offending is serious and is deserving of a punishment which is just in all of the circumstances and your conduct must be appropriately denounced in the relevant circumstances. Despite your intellectual and mental health as well as drug issues, you knew very well that you were taking items that you were not entitled to take. I understand that you are often asked to do the dirty work for others who exploit you, as you seem to be willing to steal or commit burglaries for them so you can obtain money to feed your drug habit. I am especially concerned that you have not been of assistance in the location of the firearms. The owner of the business that you stole from lost valuable tools which were required by him to run his business. I understand that some of these were recovered but not all of them, and were most valuable.
18You have a concerning criminal history which dates back to 2014, which is when you first appeared in the Benalla Children’s Court. You have committed a variety of offences since that time, a number of which are dishonesty offences, as well as drug-related offences. I also note that you have committed offences in relation to possessing weapons. You also have bail-related offences, including the one for which you are now to be sentenced, and failing to answer bail. You have previously served some time in jail and have had other sentences which have been designed to help you. Unfortunately, you have not taken full advantage of such orders which now sees you in trouble yet again.
19In sentencing you, I have had regard to the various reports tendered in respect of your mental health and intellectual challenges. A Disability Overview Report which was provided to the Magistrates’ Court in Wangaratta on 8 July last year, where you had been charged with a number of offences, indicates that you were declared eligible to receive services under the Disability Act 2006, on 7 August 2012. A psychological assessment of you at that time indicated that you had deficits in your cognitive functioning and showed significant deficits in your adaptive behaviour. Therefore, you satisfied the criteria to establish the existence of an intellectual disability as relevantly defined. In sentencing you, I have had regard to your developmental history as contained in that report, and also note the trauma you suffered when you witnessed your youngest brother drown when you were still a young boy. Your mother was concerned that somehow you felt partly responsible for this as you had not closed the gate or door, which then saw your little brother get into the swimming pool. You were only eight years old at the time and I do hope that you do not hold yourself responsible in any way for this tragic event.
20The second event that occurred in more recent times was your split with your girlfriend, Kody, who is the mother of your child. She has now taken up with your older stepbrother, who is the person who introduced you to ice when you were only 12 or 13 years old.
21I have factored in the report of Mr Cummins, psychologist, dated 18 March 2021. Mr Nibbs, on your behalf, did not place reliance on the report in respect of Verdins’ considerations as he submitted it was too difficult to unscramble the effects of drug addiction that you were labouring under when you offended from underlying mental health and intellectual disability issues. However, he submitted that any time you had spent in jail, and might spend in the future, would be more difficult because of those mental health and intellectual disability issues. I accept this submission and have made allowance for such hardship.
22Mr Cummins was of the view that you were suffering from a major depressive disorder and an intellectual disability at the time of the offending, and currently. In fact, he said that at the relevant time you suffered from a major depressive disorder with associated symptoms of traumatisation, coupled with your intellectual disability which is of a permanent nature. Mr Cummins was of the view that at the time of the offending you were a poly-substance user and suffered from an intellectual disability which, in combination with symptoms of Major Depressive Disorder 'rendered [you] a more psychologically vulnerable person who is prone to adverse influence'. He was of the view that your symptoms impacted adversely on your perception, judgment and reasoning ability.
23Although Mr Nibbs did not rely or did not seek to rely on Verdins’ considerations in respect of your moral culpability and other sentencing considerations that would flow from that, your mental health issues were present at the time of the offending. Although masked a good deal by your drug taking, your mental health and intellectual disability issues, in particular the latter, still impacted on your ability to make sound judgements in such a way as to justify reduction in your moral culpability in my view and the weight which I would otherwise attach to specific and general deterrence.
24However, because you were under the influence of drugs at the relevant time, the reduction in these respects would not be as great as it would otherwise be. On the other hand, I must be concerned for protection of the community in circumstances where you are vulnerable to be exploited by others and also have struggles with drug addiction which you have encountered since you were introduced to ice when you were only 13 or 14.
25Your disability support worker, Ms O’Sullivan, who had been your carer in effect for 12 months, appeared at the plea hearing and was most helpful and she has appeared again today to and given some evidence this morning. At the plea hearing, she indicated that you were prepared and willing to go into residential rehabilitation to address your drug issues and that you had been about to go to Odyssey House in the recent past in order to do so. Ms O’Sullivan was going to look into the appropriateness of residential rehabilitation before today's hearing and include any suggestions in this respect in the Justice Plan that I sought. Are you listening?
26OFFENDER: Yes.
27HER HONOUR: She was of the view that you might need a short period in the community before going into a residential facility, but was of the view that residential drug rehabilitation was a good approach as your drug addiction was so entrenched.
28This morning Ms O'Sullivan updated me in relation to this particular aspect saying that you had indicated that you wished to come out of custody and spend some time with your son whilst dealing with your drug addiction issues in the community but you were prepared to attend a residential facility in the future at some stage, perhaps in three to six months once you had settled yourself into a routine of sorts.
29Mr Nibbs told me that you had finally realised that others were using you to commit offences and that you were sick of doing their dirty work and being the one who got into trouble. You had made a decision not to behave like this in the future, and I do hope that you stick to this decision. However, you are going to need to be supported and intensively managed in the community so that you can stop taking drugs and learn how to stand up to others who do want to use you.
30At the original hearing, I was told that you did not wish to return to your home town of Benalla, as you know people who used drugs there and that you wish to move in with your brother in Boronia and to clean yourself up. However, in the report prepared by Ms O’Sullivan dated 12 May this year, the plan proposed is that you live at an address which I understand is near your brother and receive drug treatment in the community rather than a residential program which I had been proposed in the past with a view, perhaps, as I have said to attend your residential program down the track.
31You have said that you do not wish to attend a residential program as this will impact on your ability to see your son. But you should understand, Mr Waters, that if you are directed to attend a residential program for drug treatment which I would have thought would be ideal for you in the not too distant future, then you had better do so. It may well be the best way to ensure that you can get off the drugs once and for all and in that way, be in the best position to see your son in the years to come. If you do not stay off drugs, then you risk going to gaol again and again for further offending. So, residential treatment may well be short term pain for long term gain.
32I was told that you have been drug free whilst in gaol. I understand that you are on the methadone program. I was told that you wished to make a clean start. You have significant funding in place through the NDIS which is going to help you with your support in the community.
33I allow for a significant discount in the sentence that you would otherwise receive as you pleaded guilty at an early stage, saving witnesses the time and trouble of giving evidence and saving the community the time and expense of contested proceedings.
34You also made full admissions to all of the offences, however you refused to give detailed information in relation to the whereabouts of the missing firearms or any co-offenders. I understand that you have a concrete view about getting other people into trouble. However, you have facilitated justice by making full admissions to the offences that you committed, which is also to your credit.
35The lack of sophistication of your offending is evident, in that you had taken photos on your phone of a number of the stolen items. I have also taken into account that some of the tools were recovered. I was told that you sold some tools for $1500 and three points of methamphetamine.
36In sentencing you, I am also mindful of your age and although you have a criminal history and have committed offences for which I now sentence you, which are serious, you have not reached the stage where I ought not maximise your chances of rehabilitation.
37I take into account your background, some of which I have already referred to.
38You are now 21 years old and at the time of your arrest you were living with your parents and 17-year-old sister in Benalla. You were unemployed at the time of arrest and had been unemployed since leaving school.
39According to your mother, your intellectual difficulties became evident when you were of kindergarten age and you needed help through your schooling years.
40You grew up in a home of 11 children, although sadly your youngest brother drowned when he was 22 months old. Your mother and father each had three children from previous relationships and went on to have five children together. Your stepsiblings did not always live with you at home, but did so during school holidays and at other times. Your mother stayed at home until recently, when she became a cleaner, and your father has always worked as a butcher. You were well cared for and supported by your parents. I understand that you were hit by a car when you were 14 years old, which resulted in multiple fractures to your right ankle and required six weeks’ rehabilitation in hospital. You enjoyed playing football until this accident and I understand that you were a good footballer.
41You first met your ex-partner, Kody, when you were 12 years old. You had another relationship during your teenage years which led you to live in other parts of Victoria for lengthy periods of time. You resumed your relationship with Kody when you were 17 and you had your son when you were 18. At the end of 2019, Kody began a relationship with your older brother, John, which has been the source of a great deal of misery for you.
42You completed primary school, although you were bullied, and you were expelled from secondary school after only six months. You then attended a flexible learning centre, however, you frequently truanted from this school. You finished this education when you were 15 years old. As well as truancy issues at school, you also displayed behavioural issues. You have never had any particular job, although you have had the odd day of work from time to time for cash payment. You have been in receipt of a Disability Support Pension from when the age of 16 years old.
43Your half-brother, John Ross, introduced you to cannabis and heroin when you were 12 or 13, and shortly after this to methamphetamine. You began drinking alcohol when you were 18 years old and this progressed to daily drinking and binge drinking. According to the Disability Overview Report, you have also used prescription medications such as Valium and Codeine. You used ice regularly from age 13 and after your relationship breakup, you were using 'a heap of meth'.
44The community corrections assessment report seems to record variation in respect of your history of drug taking. However, I understand that you might well be a poor historian when it comes to talking about your past.
45In the previous Disability Overview Report, you said that since living with your brother you had only used ice once, but that you continued to use cannabis daily as it helped with anxiety. At that time, you acknowledged that your substance abuse had been a contributing factor to that offending that you were facing court for on that occasion and that it had not been addressed in the past. That is, your drug or substance abuse had not been addressed in the past.
46That report indicated that you were reconnected with the ACSO Restart Program, which had lost contact with you due to you being placed in custody. You had taken part in a phone interview with ACSO on 30 June 2020 and had been referred by them to a medical practice in Boronia for a Mental Health Care Plan, with an appointment having being made for 2 July last year. I note that the offences for which I now sentence you occurred in Benalla, your hometown, about one month later, which is of concern.
47I understand that your son has been the subject of Child Protection Services intervention, with Children’s Court Orders relating to parental drug use and family violence. However, there has not been Child Protection Services involvement with your child since March 2020 and there were no open or current orders.
48After your breakup with Kody I understand that you were extremely distressed and attempted to overdose on Valium and pain medication. I understand you have previously attempted suicide in 2018, however a friend found you in time to prevent this occurring. I understand that you have recurring nightmares in relation to the tragedy with your younger brother and may well use drugs to self-medicate in order to sleep. You do not like to talk about this event involving your little brother, which is understandable, but in order to deal with your problems including drug problems, it may well be necessary for you to do so with a psychologist or counsellor. Do you understand that?
49OFFENDER: Yes.
50HER HONOUR: You instructed Mr Nibbs that after Kody left you towards the end of 2019 your use of ice increased to almost 20 points a day and you would self‑medicate with Valium, Seroquel and Xanax. Mr Nibbs said that your life focus appeared to be obtaining drugs in order to continue the self-medication, which was reflected in your Record of Interview. Again, there seems to be a bit of variation with what you told the assessor in the community corrections report to the submissions of Mr Nibbs and what you said in the record of interview. You have used drugs to escape the pain of losing your brother and also partner, apart from other things.
51If not for the operation of Verdins, I would have given strong weight to general deterrence and moderately-strong weight to specific deterrence in a bid to deter others and you from behaving as you have. However, in applying Verdins’ principles, I reduce the weight to less than a moderate extent in relation to each of these principles and the weight which would otherwise attach to just punishment and denunciation.
52I assess your prospects of rehabilitation as being guarded. On the one hand, you have a long way to go in terms of addressing underlying issues which have led you to abusing drugs. You have an intellectual disability which will continue to impact on your capacity to make appropriate decisions and make sound judgements, and although you have abstained from drug use whilst in custody, you have a long-standing drug issue. You also have a mental health diagnosis which needs to be addressed and you are vulnerable to being used by others if you do not quickly develop strategies to avoid this, and also to avoid the need to take drugs, which in itself also makes you more vulnerable to criminal offending. On the other hand, you come from a loving and supportive family and you are prepared to take steps to address your mental health and drug issues, having come to the realisation that if you do not do this, you will risk going to jail in the future quite regularly. I understand that your present experience of gaol has not been a positive one.
53The prosecution and defence agree that a Community Corrections Order in combination with a gaol term on the basis of the days you have already served in jail is within the range of sentences available to me. It is agreed that a Justice Plan ought be attached to the Community Corrections Order.
54I had you assessed in relation to a Justice Plan and a Community Corrections Order and the reports are now to hand.
55You have been deemed to be appropriate for these orders in combination with a jail term, and I am satisfied that it is appropriate for you to be placed on a Community Correction Order with a Justice Plan attached. You must take full advantage of the Community Correction Order with the Justice Plan attached and do everything you are required to under the order, including residential drug treatment and mental health treatment, if this is what is required. Going back to Benalla is not a good idea for you, which you acknowledge, but saying these things and doing these things is different from each other, so I do hope you follow through on what you said and that you realise that there is a danger for you if you were to return to Benalla. That is, that you would get caught up again with people who take drugs and no doubt be used up and end up committing offences which will see you in gaol. That will mean that you will not be able to see your son for an even lengthier period.
56I am now going to impose a sentence in this matter. You are convicted of the offences on the Indictment and the summary offences.
57I make a disposal order in the terms which is sought by the Prosecution and not opposed by you.
58In respect of Charge 6 on the Indictment, you are fined $100 and I will give you three months to pay that fine.
59In respect of Charges 1 to 5 on the Indictment and the summary offences, you are sentenced to 251 days’ imprisonment in combination with a Community Corrections Order and I will take you through the terms and conditions of the Community Corrections Order in a moment.
60I declare that 251 days has already been served by you by way of pre-sentence detention.
61In combination with the gaol term that I have just announced in relation to Charges 1 to 5 on the Indictment and the summary offences, you are to undertake a Community Correction Order but I can only put you on a Community Corrections Order if you agree to this. So please listen carefully to the order that I propose:
62The Community Corrections Order would run for a period of two years.
63The conditions of the order would be as follows:
64Firstly, the mandatory terms that apply to all Community Correction Orders which are: 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 any obligation or requirement prescribed by Regulation 17 of the Sentencing Regulations 2011; you must report to, and receive visits from, the Secretary to the Department of Justice or his or her delegate; you must report to the Ringwood Justice Service Centre before 4 pm within two clear working days of your release from gaol, which your release should be today, so you need to make contact with the Ringwood Justice Service Centre before 4.00pm this Thursday. All right?
65OFFENDER: Yes, so that is the 20th?
66HER HONOUR: That would be the 20th. Yes.
67OFFENDER: Okay, thank you.
68HER HONOUR: All right. Now, you must also let a community corrections officer know within two clear working days of you changing your address or job. You must not leave Victoria without first obtaining permission to do so from the Secretary to the Department of Justice or his or her delegate; you must obey all lawful instructions from and directions of the Secretary to the Department of Justice or his or her delegate.
69The conditions that apply in addition to the mandatory terms listed are:
Supervision
70That you must be under the supervision of a Community Corrections Officer for a period of 2 years; you must engage in the Justice Plan that has been created for you by Ms Katherine O’Sullivan and authorised by Ms Noeleen Smith, dated 12May 2021
Treatment and Rehabilitation
71Further, you must undergo assessment and treatment including testing for drug abuse or dependency as directed by the Regional Manager. Also, 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. You must undergo programs or courses aimed at addressing factors relating to the offending as directed by the Regional Manager.
72I require that Community Corrections liaise closely with those people who are administering the Justice Plan, namely the Disability Justice Coordinator or his or her delegate from the Department of Families, Fairness and Housing for the duration of this order to ensure that all of the conditions of the order are delivered to you in an appropriate way.
73Now, having heard the order that I propose, do you agree to the Community Corrections Order?
74OFFENDER: Yes.
75HER HONOUR: Yes. I must tell you that if you do not obey all of the requirements of this Community Corrections Order, then you will face breach proceedings before me. You will then be sentenced in relation to breaching the order and you will be re-sentenced in relation to the charges, in which case you may probably be sentenced to another period in 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.
76Do you understand this?
77OFFENDER: Yes.
78HER HONOUR: Do you still agree to do everything that you need do under the Community Corrections Order?
79OFFENDER: Yes.
80HER HONOUR: Therefore in relation to the charges that I have just referred to, you are convicted and sentenced to the Community Corrections Order that I have just explained and as I have said, this is to be served in combination with the gaol period that I have already indicated has been previously served.
81Now, I will note for the records that you have agreed to the Community Corrections Order by way of audio-visual communication. That will be noted in the records instead of you having to sign a document.
82If not for your pleas of guilty, I would have sentenced you to a total effective sentence of four years' imprisonment with a non-parole period of three years.
83Now, counsel is there anything arising?
84COUNSEL: No, Your Honour.
85HER HONOUR: Mr Roper, just the value of the tools, I am just concerned that I might have not had that recorded properly. Just wanted to check that. Is that $4000?
86MR ROPER: Just have not got a copy of my - - -
87HER HONOUR: That is all right.
88MR ROPER: Yes, 4000.
89HER HONOUR: Yes, the tools - that is right. So the tools did come to at least $4000 and the firearms were valued at $500.
90MR ROPER: Five hundred, yes.
91HER HONOUR: Yes. No, thank you. Very well, as there is nothing further arising, I am going to adjourn. But Mr Nibbs, did you want to have a word with your client over the television before I turn off the transmission?
92MR NIBBS: Sorry, I am caught up in casters.
93HER HONOUR: That is all right.
94MR NIBBS: Actually, I believe it would be Ms O'Sullivan who would benefit from having the conversation in terms of what happens from here because I know that there was some requirements when he is released and they were talking about that before you came on.
95HER HONOUR: All right.
96MR NIBBS: So it may be that there is some benefit there.
97HER HONOUR: Yes, Ms O'Sullivan, do you want to have a word with Mr Waters before we turn off the transmission?
98MS O'SULLIVAN: Yes, that would be good. Thank you, Your Honour.
99HER HONOUR: All right, yes.
100MS O'SULLIVAN: Just a few details to confirm with him. Thank you.
101HER HONOUR: Thank you. All right. Well, thank you and thanks for all your help in this matter. I really appreciate it. Thank you.
102MS O'SULLIVAN: Thank you.
103OFFENDER: Thank you.
104MS O'SULLIVAN: Thank you, Your Honour.
105HER HONOUR: Sorry, I beg your pardon. My associate's reminded me that the worker from Phoenix, the NDIS worker, has asked for a copy of the Community Corrections Order. Is that something that your client is able to agree with?
106MR NIBBS: I would not see any difficulties with that at all, Your Honour.
107HER HONOUR: All right. Yes, thank you.
108MR NIBBS: Certainly, he has always indicated he wanting to assist those who were going to assist him.
109HER HONOUR: Yes, all right then. Thank you. Very well, then a copy will be provided to the people from Phoenix who were going to support Mr Waters through NDIS. Thank you very much. Yes, we will now adjourn.
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