Director of Public Prosecutions v Burton

[2017] VCC 1057

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

AT BENDIGO
CRIMINAL JURISDICTION

CR 16-01895

DIRECTOR OF PUBLIC PROSECUTIONS

v

MICHAEL BURTON

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JUDGE:	HER HONOUR JUDGE COHEN
WHERE HELD:	Bendigo
DATE OF HEARING:	1 August 2017
DATE OF SENTENCE:	2 August 2017
CASE MAY BE CITED AS:	DPP v Burton
MEDIUM NEUTRAL CITATION:	[2017] VCC 1057

REASONS FOR SENTENCE
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Subject:   Sentencing; plea of guilty

Catchwords:  Eight charges of burglary; 19 charges of theft, ten charges of obtaining property by deception, possession of methylamphetamine; summary charge of possession of cartridge ammunition without a licence; offences committed over 3 week period; professional theft activity; use of previous employment knowledge to commit thefts of excavation equipment; previous good work record; offending while homeless and addicted to “Ice”

Legislation Cited:     Sentencing Act 1991 s 6AAA

Sentence:TES: 39 months imprisonment with non-parole period of 21 months; $100 fine without conviction  

Summary Charge: Fine of $350 with conviction

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Cordy	OPP
For the Accused	Ms K. Youngson	VLA

HER HONOUR:

1Michael Burton, you have pleaded guilty to 39 charges for which I am to sentence you.  These are eight charges of burglary, 19 charges of theft, ten charges of obtaining property by deception and one charge of possessing methylamphetamine.  You have also agreed to have heard in this court and have pleaded guilty to a summary charge of possessing ammunition without a licence. 

2You have also admitted a prior criminal history to which I shall refer later.

3The maximum penalty for each charge of burglary, theft and obtaining property by deception is ten years' imprisonment. The maximum penalty for possessing a drug of dependence in the circumstances that you were, that is, where it was not for trafficking, is one year imprisonment or 30 penalty units. The maximum for possessing cartridge ammunition without a licence is 40 penalty units. I must and have taken into account the maximum penalty for each charge as part of my assessment of the objective seriousness of each offence.

4Details of each of your offences are set out in the prosecution opening which was tendered, and I shall not repeat all of those but only enough to sufficiently describe matters relevant to sentencing.

5Charges 1-27 are for burglaries and thefts committed over a period of less than three weeks between 27 April and 15 May 2016.  During this period you were without a home, but living with permission of the owner on a vacant bush block in Kangaroo Flat.

6There were 16 different incidents in which you went to sites, stole items from them, and for some incidents there was more than one part of a site burgled - that is, entered by you as a trespasser - or more than one victim's property stolen.

7The first of these involved entering premises used by the Strathfield Scouts and Lions Club, and removing items belonging to the scouts valued at $1300, and a generator and a marquee being property of the Lions Club valued at $550.  Some of those items were recovered from the bush block where you were living but some were not recovered. A day or so later you attended a residential property in Golden Square, jemmied a metal framed sliding window, turned off the power at the metre box, and removed various bathroom and kitchen fittings valued at $2400.  Those two incidents are examples of what became a pattern of the types of offences you committed over the next couple of weeks.

8Within the next couple of days of the last one I have mentioned, you attended a construction site in Echuca, cut a large padlock securing the fencing, and after causing a flat tyre to a Bobcat that you had moved, you abandoned it but stole a Bobcat excavator valued at $75,000, and you removed it by use of a truck or trailer.  That excavator was recovered from the bush block where you were living.

9Your burglaries and thefts targeted several more newly or nearly completed houses, and removed kitchen, laundry and bathroom installations, some yet to be installed.  There was one where you removed furniture and bed linen and the like.

10In one incident you stole a caravan valued at $18,000 from a vacant block in White Hills.  You took it to your bush block address and lived in it for the next couple of weeks.

11On one occasion you attended at a roadworks site, cut the chain on the gates surrounding the roadwork equipment, and removed a Bobcat valued at $75,000.  You then attended at a yard in the cross street from that site where you had previously worked and, knowing where keys were stored, you took keys for and stole a truck onto which you loaded the Bobcat and drove away. Having received information from a member of the public, the police the next day recovered the truck and the Bobcat in the car park of the Mandurang Cricket Oval.

12Within two days of the theft of the Bobcat and the truck, you entered three more newly built or still under construction houses and stole items from them as I have said, ranging from furniture to sinks and an oven.

13You stole two other trailers - one you stole and spray painted to change its colour.  You entered some other semi-industrial or business sites, and stole cabling and wiring.  You stole some generators. From Lockwood Primary School, having climbed a colourbond fence into a small compound where there were three water tanks, you ripped out and took a pump that supplied water to the school, and was valued at $500.

14The ten charges of obtaining property by deception arise from your actions over a two day period - 18 and 19 May 2016.  By that time police had discovered the amounts of stolen property stored at your bush block. On these two days, that is 18 and 19 May, on a total of ten occasions, you used a stolen fuel card to make purchases at several BP stores for cigarette lighters, gift cards, drinks and similar items.  The fuel card had been stolen by you during the theft of the truck from your previous employer's yard.

15You were eventually arrested on 19 May, and that was after you had fled from police as they approached you, but you were tracked down some hours later by a canine unit.  This was after police had already found at the bush block, the caravan and multiple sheds full of items, trailers and an excavator.  They also found a box of ammunition to a fit a rifle, and that is the subject of the summary charge against you, because you do not hold a firearms licence.

16When arrested, you had in your possession an ice pipe and a small amount of methylamphetamine, which is acknowledged to have been for your own use.  That is the subject of Charge 38 on the indictment, possession of a drug of dependence.

17I must assess both the objective and subjective seriousness of this offending.  From an objective point of view, this was frequent offending over the period until you were arrested, and on a large scale with serious commission of burglaries and thefts.

18The total value of all items stolen by you over this three week period was almost $361,000, and of that, barely $1,500 is attributable to the dishonest use of the stolen fuel card. There were 16 separate incidents involving you attending a site where you obviously expected, and were targeting, likely valuable items at those premises.  The clear inference is that you targeted those locations and that required some planning. While the precise time and date of most of those incidents is unknown, as the sites were not attended at the time and sometimes until some days later, it is clear that you were committing these burglaries and thefts almost nightly, or possibly more than one on some nights.

19I do take into account that there was no gratuitous damage done to premises, reflecting that you knew how to gain entry in the most efficient manner but not wanting to do more damage than gave you access. I also take into account that much of what you stole was recovered.  Although that was not your intention, again, there was no wanton damage to items presumably as you were hoping to on-sell or provide them in good condition to whomever was to receive them.

20I also regard this offending as subjectively serious, that is, serious in the context of your circumstances.  You personally were committing these offences and, as far as is known, you did so alone.  This was not a situation where others planned the offences and you just went along or were pressured by peers to do so.  You were clearly a willing and the only active participant.

21You had experience in operating excavating equipment, and Charges 7 and 17 reflect that you knew the nature of the machinery at those locations, and of course also knew how to operate it to remove it. You used your knowledge of a previous employer's practices to locate keys to steal a truck from the site near the excavator.

22The prosecution submits that I should infer that it was from your experience in operating machinery as part of construction work, that you knew that near complete or newly completed houses were likely to have fittings or equipment awaiting installation or newly installed items of value.  I am satisfied beyond reasonable doubt that in attending each of those premises, you knew that there was likely to be new equipment or fittings available to steal, and that you knew how to remove them if already installed. However there is insufficient information from which I could infer that your knowledge came from any direct involvement in the construction of any of these individual houses or from any other specialised knowledge that you had.

23I questioned your lawyer about the type of items stolen from these sites, the fact that much of what you stole had not been immediately on-sold but was stored at the bush block where you were living, and as to what I should make of the list apparently in your handwriting with headings, "To get", and, "To look at". In response I was told that your instructions were that you would be given a mission to go out and steal certain items, that you were being paid for stealing these rather than for the items themselves, and that the people who placed those orders were to come to collect the items in due course, but had not yet done so with most such items at the time police searched where you were living being found.

24The prosecution urged me to doubt that explanation or at least to doubt that you were acting only on orders.  An example is the circumstances of Charge 7, in which you had gone to a construction site in Echuca to remove a Bobcat, but when it got a flat tyre, you abandoned it and instead stole a Bobcat excavator valued at $75,000 and removed it using a truck or trailer. The taking of an alternative expensive and specialised piece of equipment, with which you would have been familiar due to your employment experience, does reflect that you were using your own initiative on that occasion.

25The explanation you gave overall for this extensive spate of burglaries and thefts is that you were suffering from depression, and self-medicating with methylamphetamine, and were effectively homeless and at a personal low point in your life.

26There is no medical evidence about your suffering depression, but I am told through your lawyer that you had become seriously depressed after the breakup of a previous longstanding relationship, that although you had sought medical treatment you ceased taking prescribed anti-depressant medication because it made you feel sick, and that you had taken to illicit drugs to self-medicate, specifically what is known as “ice” or crystal methylamphetamine. While courts are frequently told that that drug is the cause of other criminal offending, it is more often in circumstances that are less planned or consistently performed than your offending was here.  There is no evidence before me of that causative connection.

27In any event, even if this spate of offending was fuelled by your use of such drug, it was self-induced use of the drug, and that could not excuse your offending but only explain its context.

28Further, if you were suffering depression as your sister gave evidence to confirm, her evidence did not explain the connection between such condition and your offending.  To simply say that it is known that people commit offences while using the drug “ice”, which has become widely known in the community as a scourge, is not a cogent connective piece of evidence.  There is no cogent evidence before me connecting the cause of your offending with the mental health disorder of depression. Without such evidence, the principles known by lawyers as Verdins principles are not enlivened.  So there is no legal basis for sentencing principles of general and specific deterrence to be moderated, nor to lower your moral culpability.

29Another feature which increases the subjective seriousness of this offending is that it commenced barely four months after you had completed two months in prison for the first time in your life, and commenced on a Community Corrections Order for offending which included burglaries and thefts, obtaining property by deception and other offences of dishonesty, as well as a charge of possessing methamphetamine. I was not given a description of those prior offences except that they were extensive and occurred from about mid-2015, and I was told arose from you using methamphetamine to self-medicate for your depression.

30I infer from the fact that you were sentenced to some imprisonment on what was your first time before a court for criminal offending, that these were not low level instances of such offences.  It is an aggravating feature of your involvement in the offences for which I sentence you, that you were on a Community Corrections Order at the time for relatively recent prior offending of similar nature, and yet were prepared to embark on an intensive spate of the same nature or even more serious offending.

31For all of these reasons, I consider that both objectively and subjectively, your offending is to be regarded as serious.

32Despite mainly not being aimed at premises or belongings of individual people, thefts and the associated damage caused during break-ins of this type are not victimless.  Although there were no victim impact statements tendered, I take into account that such offences generally impact the personnel in the organisation or business who first discover that the items are missing, and the immediate businesses or operations whose items are stolen, causing disruption and inconvenience, and unless insured, monetary loss or expense.  Further, the general community is ultimately indirectly disadvantaged, as at least part of the losses or cost from these types of offences is ultimately passed on through higher prices or higher insurance premiums where those apply.

33You seem, in your letter to the court, to realise that your actions did cause harm of this general type, but it surprises me that you did not realise this before you began this spate of offending.

34Just punishment and general deterrence are important sentencing purposes in this case.  That means that your sentence must serve as a warning to others tempted by this type of offending, that serious punishment can be expected.  That is the description of general deterrence.

35Your lawyer argued that specific deterrence should not be given much, if any weight.  That is, the sentencing purpose of the need to deter you personally from further offending. The prosecution disagreed, pointing to the fact that this offending all occurred within months after you had served two months imprisonment and were on a community corrections order, both of which indicate that you were not sufficiently deterred and cautioned against further offending by the sentences that had been imposed in November 2015.  Those, it can be taken, did not deter you from relapsing into drug abuse and more offending.

36I consider that specific deterrence remains an important purpose in sentencing you, as even if you think you have resolved to resist lapsing back into those activities when next released, last time you did not manage to do so despite a supportive family, and the court cannot be confident that you have learnt the importance of doing so.

37I turn now to your personal circumstances.  You are now aged 31.  You were born into a family which says that it prides itself on exceptionally strong ties and relationships, and I have no reason to doubt that, and that you have had the support of your parents and siblings all of your life.

38You had worked from your mid-teens, then returning to complete some more schooling and finally leaving school in Year 11.  You have a strong work history from working casually at a supermarket at age 14, then full time, and rising to night shift manager before returning to school.

39I am told that after leaving school you worked in mines for some years, as a delivery driver of dangerous goods for about three years, then returning to mines, and in excavation work for a company installing NBN cabling. You have had good experience and credentials in this wide range of work, to be able to gain work again, and you have specialist licences and tickets, such as for excavators, front end loaders, a white card, and also first aid training. All of those stand you in good stead for obtaining work in the future.  What employers make of you with these matters on your record remains to be seen.

40Your family's reference describes your work ethic as very strong, and indeed, that even since you have been remanded in prison, you have made a point of seeking out work. You have been working, I am told, seven days a week in the kitchen.

41There are two references from former employers who write that you are highly reliable and a trustworthy and conscientious worker.  I am told that you maintained full time employment almost constantly after leaving school, seeking it out actively rather than being idle. As I have said, all of that stands you in good stead for prospects of future employment, and reflects that you were leading a responsible life in the community over many years. Until two years ago, you had no criminal history. 

42Your sister gave evidence that there is a history of depression in your father's side of your family. She said that your father sought out medical treatment early and has been on medication, and all of the children have known that for many decades.  Your sister spoke of her own condition, acknowledging her need for medication.

43You apparently became deeply depressed about two to three years ago on the breakup of a long standing relationship.  Your sister described noticing the condition she recognises as a family one emerge in you, but on talking to you, you were reluctant for some time to really face it, and were reluctant to seek treatment, especially in rejecting medication after feeling sick from what was originally prescribed. You apparently took to the illicit drug ice as an alternative, and although your family could see it harming you, they were unable to stop your descent into illegal activity with it.

44Your criminal offending in 2015 clearly upset your family, as did your being imprisoned, but even on your release you were not willing to seek medical treatment and legal medication for your depression. You reverted to using methylamphetamines and were apparently living homeless, although it is not clear to me quite why, with strong family connections around.

45You then apparently embarked on this spate of offences that saw you remanded for three months from your arrest until you obtained bail, and again from when bail was revoked on 1 June this year.

46Your sister says that during your latest period in custody, you have shown a marked change in attitude and been willing to discuss with her and engage with others in facing both your problems with depression and drug abuse.  You have undertaken counselling for the drug abuse over the last few weeks, and you have apparently been prescribed an anti-depressant, Cymbalta, whilst in custody this time, and you say you are finding it helpful for your depression and acknowledge that you should continue to take it while it is helping.

47You also describe as was explained to me, the confronting experience of seeing another prisoner unable to be resuscitated after having taken his own life.

48The experience in prison for two months at the end of 2015 ought, I would have thought, to have been a sufficient shock to you to bring you to grips with the need for change. However it does seem that in this latest period in custody, you may be engaging better in seeking assistance, and also have been confronted even more severely by the punishment of imprisonment.

49You have also started a new relationship, and your current partner and you plan to start afresh, away from Bendigo, when you are released.  You and she both write of your regret at being unable to be with her to give her support and assistance in some serious emotional stresses that are presently on her.  Unfortunately you are to spend considerably longer in prison, so that will be delayed for some time to come.

50It seems to me a great pity for your own, your family's, and the community's sake, that it has taken until the last two months for you to acknowledge a need for counselling for your drug abuse, and medical treatment for your mental health condition of which I am told, and that all of that had driven you to serious offending. Nevertheless, you seem to have now realised this need and resolved to address those problems.  If you can successfully address them, there is still the prospect of a stable and satisfying future for you.

51At the age of 31, you are not classed as a youthful offender, but especially as you did not fall into criminal behaviour until age 29, and with your strong work history and credentials to gain work on your release, and the ongoing support of family, I regard your rehabilitation prospects as reasonable. Although that will not be a prime sentencing factor, it is in the community's, as well as your own and your family's and partner's interests, that your rehabilitation not be discouraged by a crushing sentence.

52You pleaded guilty to these charges and you are entitled to considerable leniency for saving the community the time and cost of disputed hearings, and in this case, a large number of witnesses from the inconvenience of having to give evidence. Even though there was strong evidence against you with the finding of so many of the stolen items where you were living, and with the aid of some CCTV footage, this utilitarian value, that is, of your plea of guilty, still entitles you to leniency in your sentence.

53Your pleas of guilty also reflect that you accept criminal responsibility for your offending.  The prosecution submits that I should not infer much remorse from your pleas. I note that when interviewed by police, you answered “no comment”, apparently on legal advice, and I do not take that as indication of lack of remorse.  You now express remorse, and although I suspect it is as much your regret at your present circumstances and the upset this has caused you, your family and your new partner, I do accept that you feel some true remorse for your offending and its impact on those from whom you stole.

54Current sentencing practice is a consideration, in order for your sentence to reflect consistency and fairness.  I have looked at summaries of cases in this court in 2016, involving multiple burglaries and thefts, but of course, many more such charges are heard in the Magistrates' Court and they vary enormously in seriousness.  What also varies of course is the background circumstances of the offenders. I have also looked at published sentencing snapshots for burglary and theft, although it is not possible from those to discern whether there were multiple events, the degree of planning or spontaneity, the personal circumstances of the offenders, or even whether they were for a plea of guilty or after a trial.

55I am satisfied that for the extensive number and nature of burglaries and thefts that you committed, current sentencing practice requires a sentence of imprisonment, the total of which is higher than usually imposed in the Magistrates' Court, but not in the highest range.

56I have been referring to you committing a spate of offences.  I regard it as serious and have taken into account in assessing the seriousness of the offending, that you engaged on a continuing basis in the same type of offences, at different locations, and against different owners, over a relatively short period. However those features also mean that I must apply the principle of totality, and moderate through orders that do not amount to a lot of cumulation, the total effective sentence that I impose, to make a proportionate total to adequately reflect the overall quantity and seriousness of the offending in this period.

57Michael Burton, on Charges 1-37 on the indictment, you are convicted and sentenced as follows:

58On each of Charges 7, 17 and 18, I impose eight months' imprisonment.  Charge 7 becomes the base sentence;

59On each of Charges 16 and 13, I impose six months' imprisonment;

60On each of Charges 2, 5, 6, 11, 15, 19, 21, 23 and 27[1], I impose four months' imprisonment;

[1] Omitted after correction

61On each of Charges 1, 3, 4, 8, 9, 10, 12, 14, 20, 22, 24, 25, 26 and 27, three months' imprisonment;

62On Charges 28-37 inclusive, I impose an aggregate sentence of two months' imprisonment.  For clarity, those are the ten charges of obtaining property by deception;

63On Charge 38, of possessing methylamphetamine, without conviction, you are fined $100;

64I direct that three months of the sentence on each of Charges 17 and 18, two months of the sentences on each of Charges 1, 5, 9, 11, 13, 16, 19, 21, 23, 26 and 27 and one month of the sentences on each of Charges 8, 12, 14 and 21[2], be served cumulatively on each other and on the sentence imposed on Charge 7.

[2] Omitted after correction

65That leads to a total effective sentence of 40 months'[3] imprisonment.  That is three years and four[4] months.  I fix a minimum term before you can be eligible for parole of 21 months.

[3] Corrected to 39 months

[4] Corrected to 3 months

66I declare 156 days of pre-sentence detention reckoned served and direct that that be recorded in court records.  It will be deducted administratively and just to make clear, that is deducted from both the head sentence and the minimum term before parole.

67On the summary charge of possessing ammunition without a licence, you are fined $350 with conviction.

68I state for the purposes of s.6AAA of the Sentencing Act, that if you had not pleaded guilty but been found guilty of each of these charges after a trial, I would have imposed a total effective sentence of five and a half years' imprisonment, and I would have fixed a non-parole period of three years and nine months.  I would have imposed fines of $200 for the methylamphetamine and $500 for the possession of ammunition on the summary charge.

69Now there were two forfeiture orders and disposal order applied for.  I have signed the disposal order and the forfeiture order in respect of the ammunition.  I just had a question about the other matter and it was this.  Mr Cordy, I thought there is a form of order for which, where there is a large body of items that have been stolen and may be in a condition to be returned to the owners, I thought that is usually reflected in the form of order that they be forfeited but that they be held for a certain period to be returned, or does it happen anyway without that having to be added to the order?

70MR CORDY:  I will double check that, Your Honour.

71HER HONOUR:  You can take a seat, Mr Burton.  I will just deal with this.  My associate thinks the arithmetic does not work.  She thinks I have mentioned Charge 27 twice.  I will have to get back to that.  Charge 27, that is the pump from the school?  I think it is.  I think I meant that to be in the list for three months.  It is because of the nature of the property from which it was stolen.  That should be three months' imprisonment.  It should not be four, I meant it to be three.  Yes, I have apparently cumulated Charge 21 twice.  I had it that there were 11 charges for which there is two months cumulation each.  So that would bring down to only three charges.  I do not think I have left out others.  So it should be a total effective sentence of 39 months it seems, not 40.  I will just ask counsel to check on that.  But about the forfeiture order?

72MR CORDY:  Yes.  Returning to that, Your Honour, the prosecution understanding is, this is the appropriate form of order and all practicable steps will be taken to return property that can be identified and returned.  So I would ask Your Honour to proceed on that order.

73HER HONOUR:  All right.  Ms Youngson, first in relation to the forfeiture order, do you agree - I did not hear from you.  I am assuming it was not opposed?

74MS YOUNGSON:  It is not opposed, Your Honour.

75HER HONOUR:  All right.  I can repeat the specifics of - it is quite extensive, the particular orders I have to make because I am repeatedly told by the Court of Appeal not to aggregate.  For the sake of transparency, every offence should have a sentence reflecting its seriousness, although it seems to me that ten instances over two days of using the same stolen fuel card at a BP outlet could be aggregated.

76MR CORDY:  I do not think even the Court of Appeal would complain about that one.

77HER HONOUR:  I say that from the heart.  I was the judge in Fenton's case many years ago now.  I still think there should be an ability to, whilst still showing the comparative seriousness, but anyway.  I have therefore gone through 27 of the charges separately, or something more than that.  Now does my arithmetic cause a problem?

78MR CORDY:  No, I think that that has now been made clear what Your Honour's intention is.

79HER HONOUR:  My associate picked it up.  She is quite right.  It should have only been three, not four months for Charge 27 and the cumulation for Charge 21 should be two months, not one.  So there are now only three charges for which there is only one months' cumulation, and that I think, brings it to 39 months' imprisonment and I am still leaving the non-parole period at 21 months, which already gives a significantly lower non-parole period for reasons I have stated.

80MR CORDY:  The other matter which I remind, Your Honour, was the necessity to deal with ‑ ‑ ‑

81HER HONOUR:  Sorry, yes, the licence.

82MR CORDY:  Yes, Your Honour.  So Charges 7, 17 and 18.

83HER HONOUR:  It was, I think you said, discretionary but you urged that there be ‑ ‑ ‑

84MR CORDY:  A significant period.

85HER HONOUR:  Sorry, there has to be at least a suspension and it is discretionary whether there be a cancelation and disqualification period, and your argument was that these are serious large pieces of equipment.

86MR CORDY:  Yes.  So how it works, Your Honour, is on conviction, it has to be either a suspension for such a period as Your Honour thinks fit or a cancellation and a disqualification for such a period Your Honour thinks fit.  The prosecution ‑ ‑ ‑

87HER HONOUR:  On the latter, there would have to be therefore an application for a new licence?

88MR CORDY:  Yes.  It is the prosecution submission, because there are multiple thefts of motor vehicles, that cancellation is the most appropriate penalty.

89HER HONOUR:  Do you want to be heard on that, Ms Youngson?

90MS YOUNGSON:  Your Honour, I take the prosecution's point but I would ask Your Honour to consider his previous lack of criminal and traffic history and his future job prospects, Your Honour.

91HER HONOUR:  Yes.  I think to reflect that there is theft of more than one vehicle, there should be cancellation rather than suspension of the licence, but for the reason pointed out by Ms Youngson, that there is no history of driving offences as such and also because I regard Mr Burton's work history and ability and prospects of getting further employment, as important for his rehabilitation, I am left with having to decide whether to make it a disqualification period that extends beyond the period he is going to be in prison.  I think cancellation will mark, that is, a result of stealing these vehicles and I do not think the disqualification period should last beyond the time he would not be able to use a licence in any event.

92I will disqualify him from being eligible to obtain a licence for 12 months.

93MR CORDY:  As Your Honour pleases.

94MS YOUNGSON:  As Your Honour pleases.

95HER HONOUR:  Which the net result is, he needs to apply for a new licence on his release, but he will be eligible to do so then.  All right.  Those orders are going to take a little while.  I have just realised, Ms Youngson, I have not mentioned a stay at all; the fines.  You will be giving your client advice on what to do about those.  Do you specifically want - I think there is 30 days allowed.  28 or 30.

96MS YOUNGSON:  Yes, Your Honour.  Your Honour, my understanding from the sheriff is that the fines effectively will turn to warrants, but the warrants will not be issued because he is in custody.  The computers apparently talk to one another which is a pleasant ‑ ‑ ‑

97HER HONOUR:  It is up to him, an option to convert them, so he can seek advice on it and what to do about it.

98MS YOUNGSON:  I will speak to him about it.  It may be that the family can pay the ‑ ‑ ‑

99HER HONOUR:  So you are not seeking a stay on the fines?

100MS YOUNGSON:  No, Your Honour.

101HER HONOUR:  All right.  The wording is always cancel all licences.  Does that apply to the - I think he has got some - some of it is so-called tickets and some of it is ‑ ‑ ‑

102MR CORDY:  Those licences, Your Honour, one has to have a valid driver's licence and in fact he is disqualified from driving any of those types of vehicles until such time as the disqualification order runs out.  So in effect, if he were to be released in the 21 months, he is not then disqualified from driving in Victoria.  He needs a motor vehicle licence to drive on a highway, but his forklift ticket for example, if that is what he has got ‑ ‑ ‑

103HER HONOUR:  That reactivates does it?

104MR CORDY:  That is what he has got.  Once he is released he can ‑ ‑ ‑

105HER HONOUR:  I think he has got that amongst a number of others that he mentioned.

106MR CORDY:  Yes, he can utilise that on private property.  That is not the problem.  So the effect of Your Honour's order ‑ ‑ ‑

107HER HONOUR:  But the excavator one might be.  It is called a licence I think, not a ‑ ‑ ‑

108MR CORDY:  Yes, but the point ‑ ‑ ‑

109HER HONOUR:  He will have to find that out.

110MR CORDY:  Yes.  The point is that whilst the disqualification period is on foot, which is academic, because he is in custody, he cannot drive anywhere in Victoria.  But once he is released from prison and the disqualification order is no longer on foot, he can drive on private property but he cannot drive on a highway.

111HER HONOUR:  Until he gets that motor vehicle, yes.  I was a bit concerned about the more specialist licences, but now I - as I think about it, he stole two excavators and a truck, so if - I am not sure if he has to apply again for that licence or whether it is - if it simply reactivates once he has got a normal driver's licence back.

112MR CORDY:  I think they may well, Your Honour, because they are specialist tickets through OH&S and Work Safe and the like.  So I do not anticipate that ‑ ‑ ‑

113HER HONOUR:  But that is how it reads and I just had to think it through, yes.  All right, thank you.  I am going to adjourn for the day and leave the Bench.  In the circumstances, there is not to be physical contact, but can you keep Mr Burton here just for three or four minutes so that his family can briefly speak to him, but without physical contact.  Then when the paperwork is done, to remove him. 

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