Director of Public Prosecutions v Yates

[2023] VCC 642

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT WODONGA

CRIMINAL JURISDICTION

CR 22-02105

DIRECTOR OF PUBLIC PROSECUTIONS

v

KYLE YATES

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Wodonga
DATE OF HEARING:	22 March 2023
DATE OF SENTENCE:	22 March 2023
CASE MAY BE CITED AS:	DPP v Yates
MEDIUM NEUTRAL CITATION:	[2023] VCC 642

REASONS FOR SENTENCE

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Subject: Criminal law - sentence

Catchwords: Pleas of guilty to theft, intentionally damaging property  and  two summary charges – trespass and using an unregistered vehicle - unregistered motor bike – drove and damaged  harvester machinery – damage  approx. $200,000 -  20 years old at time of offending – suffers from autism spectrum disorder – generalized anxiety  - supportive family  - adversely affected by lack of stimulation and structured activities  due to  pandemic lockdowns  - remorseful.

Sentence: With conviction  12 month Community Correction Order  - 100 hours unpaid work - $200 fine for using unregistered motorbike.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. O'Doherty	OPP
For the Accused	Ms A. Peek-Lasry	Wilsons Legal

HER HONOUR:

1Kyle Jonathan Yates, you have pleaded guilty to one charge of theft and one charge of intentionally damaging property, as well as two summary charges, trespass and using an unregistered vehicle.  The maximum penalty for each indictable offence is 10 years' imprisonment.  For trespass, the maximum penalty is six months' imprisonment, and for using an unregistered vehicle a fine of 25 penalty units.

2On Saturday 11 September 2021 you and your brother drove in your utility vehicle from your home in Brocklesby, New South Wales, to the Stanley Forest in Victoria to go motorbike riding.  You parked your utility and went riding on your motorbike, which was unregistered.

3The complainant, Mitchell Drummond, had been working on harvesting machinery in the Stanley Forest pine tree plantation.  The work site was located near a road marked with warning signs which in clear terms prevented unauthorised access.

4That morning Mr Drummond was operating a harvester on Gorman's Road in the pine plantation.  He turned off the harvester, got out of the cabin and closed the door.  He then drove a short distance to a separate location where another harvester was located.

5Shortly after that you and your brother came across the first harvester.  You climbed into the cabin, still wearing your motorbike helmet, before getting out and parking your motorbike a short distance away.

6You returned to the harvester no longer wearing your helmet and re-entered the cabin.  You turned on the harvester and started driving it, using the head of the harvester to fell and damage approximately 15 to 20 trees.  While you were operating the harvester the head attachment struck the windscreen of the harvester, but despite knowing this you continued to operate the machine.

7A short time later Mr Drummond returned to the location and heard the harvester moving.  He found it in a different location with a fallen tree resting on it.  You were still in the cabin and you got out and rode away on your motorbike.

8Mr Drummond followed you and your brother for a short time before losing sight of you, whereupon he called the police.  You rode your bikes to where the utility was parked and found a note on the windscreen from the police asking you to contact them.

9You went to the police station on 7 October and admitted to having driven the harvester and used the attachment to push trees over.  You explained that you just wanted to have a play in the machine, regarding it as a 'cool' thing to do.

10You said you did not see the warning signs and did not know that your motorbike was required to be registered when ridden in the forest.  The quantum of damage to the harvester is approximately $200,000.

11You pleaded guilty in November 2022, after three adjourned committal mentions, and you are entitled to a discount on your sentence for the early plea as it has assisted the processes of the criminal justice system by avoiding a trial with the expense and inconvenience to witnesses and others.

12That is a mitigating factor and I take it into account.  The backlog of cases caused by the COVID-19 pandemic is still a feature of delay in the court today, and a plea of guilty is also of value in that regard.

13There are a number of other mitigating factors in this case.  You are a young man, aged 22 now, and 20 at the time of the offending.  You also have a number of vulnerabilities not shared by others in the community, namely that you suffer from autism spectrum disorder, and generalised anxiety.  In addition you have an undiagnosed but suspected condition of Crohn's disease, which is still being investigated medically.

14You grew up in a very supportive family with a childhood diagnosis of ADHD, autism spectrum disorder and later, as I said a moment ago, generalised anxiety.  Your mother, a school teacher, resigned from her job and undertook your home schooling from Grade 6 until Year 12 when it became clear that you did not fit in at school, even at an autism specific education program.

15Your father, a police officer, also resigned in order to provide the support you needed.  Your parents saw to it that you were involved in community activities, interacting with other young people.

16You volunteered as a farm worker from the age of 12 and this eventually became paid employment over about seven years, during which time you were taught to operate machinery.  You enjoyed working, but you had to cut back owing to your deteriorating physical health.

17You have been prescribed medication for mood control and your parents remind you when you forget to take it, as they are alert to the changes in your mood.  One of your autism symptoms is difficulty adjusting to changes in routine, such as that brought about by the pandemic lockdown periods when you were unable to continue with farm work, as the farm was located over the border in Victoria.

18This caused you to be bored with nothing to do, leading to the trail bike riding expedition with your brother on the day in question.  When you saw the harvester you saw it as a chance to have a bit of fun and you did not expect it to start.

19Nor did you intend to cause any damage and you did not think before acting.  You know that you did the wrong thing, you understand why you did it and you are, as I understand it, genuinely sorry.

20The damage caused was very considerable, and although there is no victim impact statement from Mr Drummond, it would no doubt have been very inconvenient for him to have been deprived of the use of the machine.

21In sentencing you I must take into account the need for general deterrence, that is to deter others from committing offences like these, and the sentence I impose should reflect that.  I must also consider the need for specific deterrence, the need to deter you from further offending.

22Ms Cameron, the forensic psychologist who saw you in January, confirmed the diagnoses to which I have referred and noted your difficulties with problem solving, impulsivity and risk-taking behaviours.  She considered that the lack of stimulation and structured activities caused by the pandemic probably increased your propensity to offend.

23Added to this the lack of maturity often seen in young men between the ages of 18 and 25, which has been well documented.  You have recently seen your doctor, who has set in train a mental health plan to attend to psychological issues.

24This will add to the support you already have from your parents and will help reduce the risk of reoffending.  Your chances for rehabilitation are very important for the future protection of the community, and that is best achieved through a Community Correction Order rather than a gaol sentence.

25This was the submission made by your counsel and the prosecution supported that submission.  As you counsel said, this is an unusual case, and although imprisonment might be warranted, the circumstances of this case avoid that necessity.

26A Community Correction Order in this case does not require any treatment conditions because those needs will be well taken care of through your existing supports.  I will impose an order requiring unpaid work only, apart from the core conditions of the order.

27Before explaining the details of the CCO I note that the offence of using an unregistered motorbike is not punishable by imprisonment, so the penalty will be a fine of $200.

28The CCO will commence today and will last for 12 months.  It will include convictions for the two indictable offences and the offence of trespass.  You will be required to perform 100 hours of unpaid community work, and you must attend the Corrections office at Wodonga at 2 pm tomorrow, 24 March.

29If you had pleaded not guilty to these charges I would have sentenced you to a CCO lasting two years with 200 hours of unpaid work and the fine would have been $300.  Are there any other matters, Mr O'Doherty?

30MR O'DOHERTY:  No, Your Honour.

31HER HONOUR:  Anything else, Ms Peek-Lasry?

32MS PEEK-LASRY:  No, Your Honour.

33HER HONOUR:  Would you like to approach the dock with my associate who has the CCO there for signature?  Ms Peek-Lasry, I have just realised that the documents you referred to and relied upon you did not tender them.  Do you want them to be tendered?

34MS PEEK-LASRY:  Yes, if I could tender those?

35HER HONOUR:  Will a bundle of one numbered exhibit be satisfactory?

36MS PEEK-LASRY:  Yes, that is satisfactory, Your Honour.

37#EXHIBIT 1 -   Bundle of documents.

38HER HONOUR:  Thank you.

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