IN THE COUNTY COURT OF VICTORIA
AT Latrobe Valley
CRIMINAL DIVISION	Revised
Not Restricted
Suitable for Publication	
CR-22-00184

DIRECTOR OF PUBLIC PROSECUTIONS		
		
v		
		
JAYDEN WORTHINGTON		

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JUDGE:	Her Honour Judge Gwynn	
WHERE HELD:	Latrobe Valley	
DATE OF HEARING:	3 May 2022	
DATE OF SENTENCE:	23 June 2022	
CASE MAY BE CITED AS:	DPP v Worthington	
MEDIUM NEUTRAL CITATION:	[2022] VCC 985		

REASONS FOR SENTENCE
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Subject:	Criminal law
Catchwords: 	Burglary; theft; theft of firearm
Legislation Cited:	Sentencing Act 1991 (Vic); Disability Act 2006 (Vic)
Sentence:	231 days' imprisonment & Community Correction Order (12 months, supervision, drug treatment, Justice Plan)

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APPEARANCES:
	Counsel	Solicitors	
For the Director of Public Prosecutions 	Mr C. McConaghy (for Plea)
Ms J. Cohen (for Sentence)	Office of Public Prosecutions	
			
For the Offender	Mr J. Livy	Tyler Tipping & Woods	

HONOUR:

1	Jayden Worthington, you have pleaded guilty on indictment to charges of burglary, theft and theft of a firearm.
2	You have also entered a guilty plea to a related summary offence of committing an indictable offence, namely burglary and theft, whilst you were on bail. 
3	In sentencing you for your crimes I am obliged to take into account the maximum penalty for each of the offences that you have committed.  The maximum penalty for burglary and theft is 10 years imprisonment.  The maximum penalty for theft of a firearm is 15 years imprisonment.  The maximum penalty for committing an indictable offence whilst on bail is three months imprisonment.  These maximum penalties reflect the seriousness with which Parliament regards these offences.
The offending
4	In terms of the offending, the circumstances of your offending were set out in a document entitled “Summary of Prosecution Opening for Plea” dated 20 April 2022.  This is an agreed document.  It represents your acceptance of the elements of the offences to which you have pleaded guilty as well as the factual basis on which I am to sentence.
5	In short compass, at approximately 7:00 am on 24 July 2021 you attended a remote coastal property in Port Albert.  The victim, Will Palmer, and his mother, Wendy Palmer, live on adjacent properties.  Will Palmer used a detached shed on Wendy Palmer’s property as a workshop. 
6	You entered the shed, forming the basis for Charge 1, burglary, and located a locked and secured Winchester Firearms safe bolted to the floor.  That safe contained ten firearms, with ammunition stored in a separate lockbox inside.  
7	You used tools which you found in the shed to open the safe.  Whilst not charged with it, this action caused damage to the safe and the ammunition box inside.
8	You removed a Miroku ML22 Lever Action Rimfire .22 calibre rifle, and a pack of .22 calibre ammunition, forming the basis for Charge 2, theft of ammunition, and Charge 3, theft of a firearm.  You left the remaining firearms in the safe, with the tools you used to open it still wedged in the safe door. 
9	At the time of the offending you were on bail, forming the basis for Summary Charge 3, commit indictable offence on bail.
Investigation
10	At about 10-11am on 24 July 2021, Will Palmer entered the shed, noticed the safe had been broken into and then contacted police.  The tools were seized for forensic examination.  A preliminary DNA report indicated that DNA consistent with yours was located on the tools. 
11	The items stolen have not been recovered.
12	You were arrested on 4 November 2021 in relation to an unrelated matter and have not been formally interviewed in relation to the matters before me. 
Offence gravity and victim impact
13	Your offending, Mr Worthington, is serious.
14	You have entered private property and, at least as it relates to the gun, taken property of extreme personal value to its actual owner. 
15	It is concerning that the property has not been recovered, if not from the perspective of Mr Palmer, then certainly from the perspective of the community in terms of an unknown location of a gun with ammunition.  
16	The purpose of a victim impact statement is to give those affected by your crime the opportunity to participate in the criminal justice process by informing the court about the effects of the crime upon them.  Will Palmer did make a Victim Impact Statement which was read to the court by the Prosecutor on the previous occasion.  You are therefore well aware as to how he has been affected.  In that document Mr Palmer speaks of the loss of what was a family heirloom of great sentimental value, value likely to exceed the monetary worth of the firearm which you took.  He speaks of losing an irreplaceable memory.  Your actions have also seen him lose trust in people and he had costs associated with the need to replace the gun safe and to make repairs.    
Plea of guilty
17	The Sentencing Act obliges me to take into account the stage at which you entered your plea.  
18	This matter proceeded by way of straight hand-up brief. You indicated your intention to plead guilty at an initial directions hearing, when a preliminary DNA report was available but a statement was yet to be completed.  No witnesses were cross-examined. 
19	I do accept that your plea was at an early opportunity, a fact that is conceded.
20	Your plea has saved the court the time and expense of contested proceedings and the need for witnesses to give evidence.
21	Your plea has additional value at this time as it provides certainty and finality to all parties in circumstances where the court’s operations have been significantly disrupted by the COVID-19 pandemic and many trial dates remain as yet unfixed.
22	You have taken responsibility for your offending through your plea of guilty.
23	I take all of these factors into account in your favour.
Personal circumstances
24	In terms of your personal circumstances, you were aged 22 at the time of your offending and you are now aged 23 years.
25	You were born in Tasmania and identify as an Indigenous Australian of the Palawa.  You are the youngest of five siblings with three older sisters and one older brother.
26	You had a positive upbringing with a good relationship with your siblings and parents.  You have a particularly good relationship with your sister Kara. 
27	You attended school to year five/year six level.  You ceased when your family moved from Tasmania to the mainland and into the Latrobe Valley region.  You were bullied at school and have genuine difficulties with reading and writing. 
28	You have been a cannabis user since the age of about 16 years.
29	Your parents unexpectedly returned to Tasmania about two years ago, reportedly due to issues with your older brother, who has substance abuse issues.
30	You were formally recognised as having an intellectual disability in November 2019.  You do have trouble reading and writing and you need assistance with some daily tasks, as well as with understanding conversations and communications. I am satisfied that this reduces your moral culpability for your offending and lessens the weight to be given to both specific deterrence and general deterrence in the sentencing mix.
31	Protection of the community of course remains a factor.
Prior criminal history.
32	You do have a somewhat relevant prior criminal history.
33	On 23 August 2017 you appeared at the Latrobe Valley Magistrates' Court in relation to charges of criminal damage and assault with a weapon.  You were fined the amount of $500 without a conviction being recorded.
34	On the same day you appeared in the Latrobe Valley Children’s Court in relation to charges of burglary, three charges of theft, two charges of criminal damage, four charges of failing to answer bail, and using an unregistered motor vehicle.  Without conviction, you were placed on probation for a period of 12 months.
35	On 30 August 2018 you appeared at the Latrobe Valley Magistrates' Court in relation to a number of driving related offences and you were fined the amount of $400 with a conviction being recorded.
36	On 20 January 2020 you again appeared at the Latrobe Valley Magistrates' Court. On this occasion it related to offences of theft, handling stolen goods, fraudulently use a numberplate, use and possess cannabis, contravene a conduct condition of bail, committing an indictable offence whilst on bail, use unregistered motor vehicle, dealing with property suspected to be the proceeds of crime, possess prohibited weapon, carrying a controlled weapon and possess dangerous article in a public place.  You were convicted and placed on a community corrections order for a period of 18 months.  This order included treatment conditions and a justice plan. 
37	On 10 September 2020 you appeared at Latrobe Valley Magistrates' Court in relation to drug possession, weapon possession, driving offences, and committing an indictable offence whilst on bail.  You were convicted and fined the amount of $800.
38	While not to be punished for your criminal history a second time, it is relevant to the weight that needs to attach to specific deterrence (that is, putting you off further offending), denunciation, as well as protection of the community.  It is also relevant to the assessment which needs to be undertaken as to your prospects for rehabilitation.
39	You are still relatively young and your future prospects should still have some emphasis. 
Prospects for rehabilitation
40	A psychological assessment of you conducted by David Ball, forensic psychologist, dated 7 November 2019 was tendered on your behalf.  It was prepared for the court proceedings held in the Magistrates' Court in January 2020.  At that time he diagnosed you with severe cannabis use disorder.  Mr Ball also expressed the opinion that you presented with low self-esteem and have a limited capacity to solve problems and act with good judgement.
41	Mr Ball estimated that your IQ fell below the borderline range and he recommended an assessment for a justice plan.
42	A final report from the Court Integrated Services Program (CISP) dated 5 May 2021 has been tendered.  At the time of that report you had identified alcohol use as a contributing factor to your then offending and reported ongoing cannabis use which you had reduced.  You had managed to maintain a rental property for about 10 months.  You were also being assisted to obtain an NDIS package.  You were reported as engaging exceptionally well with the CISP case management over a 
four month period.  That program recommended that court proceedings you had in the Magistrates' Court at that time be adjourned into the Assessment and Referral Court, or ARC list.
43	The ARC list is a specialist jurisdiction of the Magistrates' Court that deals with therapeutic intervention for offenders who suffer a mental illness, intellectual disability, acquired brain injury, autism spectrum disorder, or neurological impairment which reduces their capacity for self-care, self-management, communication, and/or to socially interact.
44	I have also received a referral report for the ARC list dated 20 May 2021.  By the time of that report you had lost your rental accommodation and were in arrears.  An episode of drug and alcohol counselling had been closed and you had been referred for neurological assessment on 16 June 2021 but did not attend.  You did have continuing support from your sister Kara.  You had also been linked in with Sureway, a disability employment service, with you case manager describing you as a ‘star pupil'.  You had been working picking vegetables and planting trees.  It was recommended that your proceedings in the Magistrates' Court be transferred to the ARC List.
45	Of course, the offending before me occurred in July of 2021.  I am told that around that time your brother moved back in with you and that there was a relapse into drug and alcohol use which set the context for your offending.  Your brother has apparently returned to Tasmania, reducing your risk of reoffending 
46	You were arrested on 4 November 2021 as already outlined and have remained in custody, serving now some 231 days by way of pre-sentence detention.  This is the longest period of time in which you have been in adult custody.  In that sense it already has a role to play as both a sanction and as a deterrent.
47	In addition, you have been on remand during the Corrections response to the COVID-19 pandemic. I accept in general terms this has meant less access to treatment and educational programs, as well is to personal visits from friends and family and less freedom of movement.  It has also required an offender to spend 
14 days in isolation upon reception or when moved between prisons.  As such, I accept in the circumstances that the experience of a remand, or indeed sentenced, prisoner is more difficult than it would otherwise be.
48	Upon release you have the continued support of your sister Kara who has access to a vehicle and is able to help you to get to appointments.  You are able to live with her, her partner and their children in Traralgon.  I accept that this is a supportive and stable environment for you.  Kara attended your initial plea hearing.
49	In addition, you are able to work in your sister’s partner’s father’s concreting business and your sister’s partner can take you to and from work.  This is a great opportunity for you.  Such supports also reduce your risk of reoffending.    
50	I am also told that there is an NDIS package to be reviewed and hopefully you will have that additional assistance. I accept, Mr Worthington, that you are highly motivated to make positive changes in your life.
Sentencing submissions
51	In terms of sentencing, both parties submitted that all relevant sentencing considerations could be reflected in a combination sentence; that is, a period of imprisonment in combination with a community corrections order.
Assessments
52	I have had you assessed for your suitability for a community corrections order with a justice plan attached.  Section 37 of the Sentencing Act obliges me to seek an assessment when considering the imposition of such an order.  The making of any order also requires the consent of the offender.
53	You have a Statement of Intellectual Disability pursuant to the Disability Act 2006.
54	I have also received a disability overview report from the Department of Health and Human Services.  The justice plan also received recommends that you engage with a Disability Justice coordinator from the Department of Families, Fairness and Housing for the duration of any order and participate in further planning as required.
55	In an Assessment Outcome Report dated 21 June 2022 you were found unsuitable for a community corrections order as you had been non-compliant with a previous order and denied the offending before this court.  The writer of that report did not have the benefit of the Disability Overview Report which details the difficulties you have with communication and receptive language skills.
56	In any event, I do not see the recommendations made in the assessment undertaken as a basis to form the view that you should not be placed on such an order.  
Sentencing
57	In terms of sentencing, the basic purposes for which a court may impose a sentence include punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community. In sentencing you, I must have regard to a range of matters such as the seriousness of the offending, your culpability for it, your personal circumstances and those any victim. 
58	I must also balance the interest of the community in denouncing criminal conduct with the interest the community in seeking to ensure, where possible, that offenders are rehabilitated, and are reintegrated into society. 
59	I have taken into account the relevant sentencing guidelines referred to in 
section 5 of the Sentencing Act 1991 where relevant to your case.  I have taken into account current sentencing practices for the offences to which you have pleaded guilty as well as the important principles of both totality and proportionality.  
60	I now turn to the sentencing exercise.  
61	For the bail offence you are convicted and sentenced to 7 days' imprisonment.
62	The offences on the indictment are such that I propose to impose an aggregate sentence as I am satisfied that those offences are founded on the same set of facts. 
63	For the charges of burglary, theft and theft of a firearm you are convicted and sentenced to 231 days' imprisonment, reckoned as already served.  
64	This is in combination with a community corrections order of 12 months' duration. There is merit, in my view, in this order being therapeutic only.  Therefore, the conditions of that order are as follows
(a)	firstly, you are to be supervised by the Office of Corrections;
(b)	secondly, I think it is a good idea that you participate in drug and alcohol counselling; and
(c)	thirdly, are to participate in the Justice Plan dated 17 June 2022
65	You should know, and probably do know, but in addition to the conditions I intend to impose there are standard conditions.  The first one is that you must not commit any other offences during the 12 months of the corrections order; any offences, that is, that could be punished by imprisonment.  You need to report within two working days of your release to the nearest community corrections office.  You have to let your corrections office know of any change of address of where you are living or working and you must do so within two clear working days.  It is also a term of all community corrections order that you submit to visits as directed and obey all the instructions and directions of a corrections officer.  You can't leave the State of Victoria without their permission. 
66	In my view, Mr Worthington, this order presents you with a chance to change your life in a positive fashion, as you wish to do, and should you choose to take up that opportunity and the supports that should be made available.  The order in effect can be breached if you don't do it, and the order can be breached if you re-offend whilst it is in place.  If you do, you are going to have to come back before me, I'm going to have to punish for breaking the order and I might have to resentence you all over again for these charges.  
67	Now, I can only place you on that order if you consent to being placed onto it.  In a moment I will stand down so you can speak to Mr Livy privately about that, but before I do, section 6AAA of the Sentencing Act requires me to tell you the sentence that I would have imposed if you had not pleaded guilty to the charges. If not for your plea of guilty, I would have received a sentence of 18 months with a minimum of 12 months before being eligible for parole.
68	Ms Cohen, just whilst I'm still here I am just going to check if there's anything arising from your end, from the sentences I just announced and the facts I've been through?
69	MS COHEN:  No, Your Honour.  Thank you.
70	HER HONOUR:  Mr Livy, anything from your end?
71	MR LIVY:  No, Your Honour.
72	HER HONOUR:  All right, what I'm going to do is stand down, Mr Livy, very briefly, Ms Cohen will be booted out very briefly, promise to bring you back Ms Cohen.  You can speak with Mr Worthington about the corrections order and his willingness to sign and I will come back get an update all right?
73	MR LIVY:  Thank you.
(Short adjournment)
74	HER HONOUR:  All right how are we going, Mr Livy?
75	MR LIVY:  With that time Your Honour, yes, Mr Worthington consents to making of an order.
76	HER HONOUR:  All right, I'll just get that verbally from you Mr Worthington, you happy to go on this order for 12 months?
77	OFFENDER:  Yeah, I'm prepared to – yeah I'm prepared for it.
78	HER HONOUR:  Yes, good.  It shouldn't be too onerous in a sense that hopefully you'll get a disability justice co-ordinator will help you.  But not a bad idea to do a drug and alcohol treatment for you particularly when you get out.  It can be a bit tricky.
79	OFFENDER:  I probably will but I haven't been drinking or smoking for eight months so I'm not (indistinct) so I actually want to stay, stay clean.
80	HER HONOUR:  Yes well you're not going to be able to maintain living with your sister and working you know if you go back to the way things were.
81	OFFENDER:  I know.
82	HER HONOUR:  I accept that you really want to make things different, 
Mr Worthington.
83	OFFENDER:  Yeah I do, yeah.
84	HER HONOUR:  So make sure you prove me right, won't you?
85	OFFENDER:  Yeah, yeah.
86	HER HONOUR:  All right because in the nicest possible way I don't want to see you back here.
87	OFFENDER:  Yeah no, I'm making this the last my last time.
88	HER HONOUR:  All right.  
89	OFFENDER:  For sure.
90	HER HONOUR:  All right well Ms Cohen can I thank you very much for your assistance this morning.
91	MS COHEN:  Thank you Your Honour. 
92	HER HONOUR:  Mr Livy I thank you again for yours.
93	MR LIVY:  Thank you Your Honour.
94	HER HONOUR:  I'm going to stand down now till 2.15 if you wish to speak to 
Mr Worthington again Mr Livy, you'll be given that opportunity.  
95	MR LIVY:  Thank you. 
96	MS COHEN:  If the court pleases.
97	MR LIVY:  Thank you. 
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