Director of Public Prosecutions v Carter
[2023] VCC 1706
•14 September 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Suitable for Publication | |
AT WARRNAMBOOL
CRIMINAL JURISDICTION
CR 23-01433
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KEIARHN CARTER |
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JUDGE: | HIS HONOUR JUDGE DOYLE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 September 2023 | |
DATE OF SENTENCE: | 14 September 2023 | |
CASE MAY BE CITED AS: | DPP v Carter | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1706 | |
REASONS FOR SENTENCE
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Subject: Criminal Law
Catchwords: Guilty plea - aggravated burglary – prohibited person in possession of firearm handling stolen goods – deal with suspected proceeds of crime – substantial criminal history – deprived upbringing – general and specific deterrence – community protection.
Cases cited: Worboyes v The Queen [2021] VSCA 169; Bugmy v The Queen [2013] HCA 37; Meyers v The Queen [2014] VSCA 314; R v Verdins [2007] VSCA 102.
Sentence: Total effective sentence of four years and three months, and a non-parole period of two years and 11 months
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr A. Moore | Office of Public Prosecutions |
| For the Accused | Mr R. Thyssen | Gallant Law |
HIS HONOUR:
1 Keiarhn Carter, you have pleaded guilty to one charge of prohibited person in possession of a firearm, five charges of possession of a drug of dependence, one charge of handling stolen goods, one of aggravated burglary, one of criminal damage and a related summary offence of being in possession of property suspected to be the proceeds of crime.
2 The maximum penalty for aggravated burglary is 25 years imprisonment; for prohibited person in possession of a firearm, 10 years; for possession of a drug of dependence, 1 year; for handling stolen goods, 15 years; for criminal damage, 10 years; and, finally, for suspected proceeds of crime, 2 years.
3 The facts of your offending are set out in the prosecution opening which was tendered on the plea as Exhibit A.
4
The victim in this matter is Luke Brandt. You did not know Mr Brandt.
At about 8 am on 1 March this year, Mr Brandt was asleep at his house in Barkly Street, Warrnambool. He was woken up by the sound of glass smashing in his lounge room. He walked into the lounge room, and he saw you leaning through the broken window. You were waving around a sawn-off single barrel .22 calibre firearm. You yelled at the victim, 'Where the fuck is Josh Hall? I want my money, the dog. Doesn't he live here? Do you know him?'.
5 The victim told you that Hall did not live there, but that he did know him. You demanded that he call Josh Hall which he tried to do but was not successful. You then said you were going to kill Hall and continued to yell at the victim to get you the address. The victim saw that there was another male as well. He got a good look at you holding the firearm and gave a description of you to the police. No other person has been charged in relation to the offending, but I am satisfied there was another person there based on the undisputed prosecution opening.
6 Not long after police attended at the victim's residence. They took a statement from him and from another neighbour who had heard banging and swearing. That neighbour had seen two males walking down the street and then leave in a red car. Crime scene officers processed the scene and saw the broken window at the front of the residence. Blood was also observed. A DNA analysis later revealed that that blood matched your DNA.
7 You were arrested at 3.15 pm on that day, namely, 1 March 2023. Senior Constable Bevan Maher saw a vehicle registered to a person named Ashley Fortune being driven by another person, Carly Grey. He made a U-turn and took up a position behind the vehicle and activated the police lights. The vehicle then pulled over. You got out of the front passenger door of the vehicle, and you were recognised by the police at the scene. You were carrying a bag which you dropped to the ground. There was some resistance before you were taken to the ground and handcuffed. Carly Grey was asked to get out of the vehicle.
8 Police searched bags from the back seat of the vehicle which had clothing and personal belongings belonging to you. In a black sports bag police located a stolen sawn-off Winchester bolt action .22 calibre firearm shortened to a total length of 310 millimetres. This was the firearm you used in the aggravated burglary at Mr Brandt's residence.
9 In respect of that firearm you are charged with being a prohibited person in possession and handling stolen goods. You have admitted that you acquired that firearm in circumstances where you were aware it was stolen and where you had no title towards the firearm. That is the way it was put by Mr Thyssen when I made a query about that charge before you pleaded guilty. It seems to me your guilty plea in respect of that charge is very significant in the circumstances where there was not a lot of evidence to establish that it was stolen goods. So, you will be given credit for that in the sentencing in this case.
10 In the bag police located that you were carrying was $6,935 in a vacuum sealed plastic envelope (which is the basis of the suspected property proceeds of crime), three mobile phones, four small Ziploc bags containing small amounts of methylamphetamine, Lyzalon prescription tablets, six Valium prescription tablets, two diazepam prescription tablets and four MDMA tablets.
11 You were taken back to Warrnambool police station and interviewed and remanded in custody. You have been in custody ever since.
12 The victim in this matter, Luke Brandt, made a victim impact statement. It is apparent from that statement that the aggravated burglary in this case had a significant impact on him. He describes his circumstances in the statement. He described himself as having a genetic physical disability which leaves him in constant pain and says that this conduct added significant stress to his life, and it has had a big impact on him. That is well understandable with this sort of offence, Mr Carter, where you smashed his window at 8am in the morning and then just after he had woken up, he saw you at the window holding a gun. The impact on Mr Brandt is a significant matter for me to take into account in sentencing in this matter.
13 Aggravated burglary is obviously a serious offence with a maximum penalty of 25 years. In the case of the DPP v Meyers, the Court of Appeal set out a series of factors for a sentencing judge to consider in assessing the gravity of the offence.[1] They include: the offender's intent at the point of entry (whether it was to steal or commit an assault or cause damage); the mode of entry, for example by forcing a door or breaking a window; whether the offender was carrying a weapon; whether the offender was alone or in company; the time of the day at which the burglary took place; what the offender knew or believed about who would be inside; whether the offender was someone of whom the victim was particularly frightened.
[1]Meyers v The Queen [2014] VSCA 314
14 It can be immediately seen that, having regard to a number of those factors, there are serious aspects of this aggravated burglary. The victim was asleep at the time you entered, which was 8am in the morning. You were present with another person, so it was an offence committed in company. The entry was by smashing his front lounge room window and you were carrying a serious weapon, namely, a firearm. As well your intent at the point of entry, which you have admitted, was to commit an offence involving an assault.
15 This seems to have been a particularly senseless incident. Apparently, you were owed some money by a man named Peter Hall. You must have had some information that Mr Brandt could assist you in providing information about Mr Hall's whereabouts and it seems you were determined to get that information from him. So, there are serious aspects of this offence.
16 On the other hand, it seems as though the entry in this case and your presence was relatively short-lived, and there was not a full incursion into Mr Brandt's residence and no other gratuitous acts of violence or any direct threats to him that would put this well into the higher categories. All of that said, this remains a serious example of an aggravated burglary because of the features that I have attempted to highlight.
17 The offence of prohibited person possess firearm is always a serious offence. You had a criminal purpose which overlaps with the aggravated burglary, in that it is an element of the aggravated burglary that you were in possession of a weapon, in this case the firearm. So, there is some overlapping criminality between those two offences. Nonetheless your prior convictions, and the fact that you had acquired that weapon earlier in the day and you were in possession of it obviously throughout the day and after the offence as well, mean that total concurrency is not appropriate, and it is a serious offence meriting a significant sentence.
18 The other offences in the case strike me as being indicative of you leading a criminal lifestyle. Apart from the nearly $7,000 that was located, the other matters do not add greatly to the overall criminality and I intend to impose shortish sentences concurrent with the main offence in this case of aggravated burglary.
19 The handling stolen goods, again given that it relates to the firearm, seems to me to be part and parcel of the offending here, and, given your significant guilty plea in respect of that, I also intend to impose a concurrent sentence in relation to that offence.
20 You have a very significant criminal history. You have been before the criminal courts since at least September 2014 when you appeared before the Warrnambool Children's Court for a range of offences which included burglary and theft, making a threat to kill, recklessly causing injury, criminal damage and contravening a family violence intervention order. As early as 2014 you were given a sentence in a Youth Justice centre of four months. Then in the Warrnambool Magistrates' Court in February 2016 for a range of offences, including assault in company, a further offence of contravening a family violence intervention order and others, you were placed on a Community Correction Order, which you appear to have contravened later in 2016.
21
Your offending escalated in December 2017 when you were sentenced in the County Court to a sentence of three years and 10 months, with a non‑parole period of two years and three months for armed robbery. I am told by
Mr Thyssen, and I accept, that you managed to get through a period of parole under that sentence. It seems that sometime in the lead up to May 2022 you reoffended by contravening a family violence intervention order again, committing an unlawful assault, a burglary and some other offences, which led to you being placed again on a Community Correction Order for a period of 18 months which you seem to have been on when you committed these offences.
22 You are not to be sentenced again for your prior convictions, but your significant criminal history is relevant in several ways to sentencing. It is relevant to the assessment of your prospects of rehabilitation and to the weight I must give to specific deterrence which is the need to deter you from committing further serious offences in the future. It is also relevant to the assessment of your moral culpability in this case which seems to be significant on all the facts here.
23 Your personal circumstances are set out in a report of Ms Gina Cidoni which was tendered on the plea and which I have read. That report was provided this morning and then tendered in evidence. That report sets out in quite some detail your background, which was also outlined by Mr Thyssen, your counsel, on the plea, and I take into account the contents of that report. There is nothing in the testing which would indicate any of the Verdins principles apply in this case.[2]
[2]R v Verdins [2007] VSCA 102
24 I will briefly outline your personal circumstances.
25 You are now 27 years old. You were born in Canberra. You lived there until you were three years old. You then moved to South Australia with your family where you lived until you were 10 years old. Thereafter you went to live in Queensland with your father. After a few years you and your father moved to Warrnambool where your father had employment on a farm. Your parents had earlier separated when you were seven years old, with your mother simply moving out with your siblings and never having any further contact with you.
26 In Mr Thyssen's submission there were some real problems in your relationship with your mother and you were subjected to a level of physical and psychological abuse from her which led to issues of anxiety and depression from which you still suffer. You had very limited education and you only went to school until Year 7 and then you were expelled. Your father had his own issues with alcohol and drugs and was absent from your life from time to time. You were left to your own devices, and you lacked parental guidance.
27 It seems you did not successfully complete any studies and you do not have any significant employment record, although you have worked in labouring jobs and as a bricklayer. Mr Thyssen told me that your former employer as a bricklayer is prepared to give you further employment when you are ultimately released. The reality is that will not be for some time, but at least you have demonstrated a capacity to do work when you have had the opportunity.
28
You have had long-term problems with both drugs and alcohol since you were aged about 12. I am told, and I accept you have used cannabis from the
age of 12, alcohol from the age of 14, and dabbled in morphine through your father from the age of 15. You used heroin between 16 and 19 years old and you have also used methylamphetamine on and off since you were 16 years old. You have used other drugs as well. I am told at the time of this offending you were using Xanax and Ice. The conduct here does seem consistent with someone under the influence of drugs.
29 It seems to me you do have a deprived upbringing. We are all a product of our formative influences and yours led to a life of entrenched drug use and criminality, and I apply the principles of Bugmy as reducing your moral culpability to an extent.[3] The other side of the Bugmy principles though is that because of the entrenched nature of your issues with drugs and criminality, I can only take at best a guarded view of your prospects of rehabilitation. Therefore, considerations of community protection and specific deterrence are more significant than they otherwise might have been but in sentencing you in this matter I have taken into account your deprived upbringing.
[3]Bugmy v The Queen [2013] HCA 37
30 I accept that you now feel that you let everyone down and you have genuine remorse in relation to your actions. You certainly pleaded guilty at the earliest opportunity. I accept your guilty plea is consistent with remorse and indicates a willingness to facilitate the course of justice. The principles of Worboyes apply in that the court still faces a backlog of trials resulting from the suspension of its operations during the pandemic and the utilitarian value of your plea is therefore heightened.[4] You have spared the prosecution and the police and, importantly, Mr Brandt, the experience of having to run a trial in this case; that is a significant matter in sentencing in this case.
[4]Worboyes v The Queen [2021] VSCA 169
31
I take into account the principle of totality, which is that the total effective sentence I impose must be proportionate to the total criminality of your offending. To comply with the principle of totality I have ordered significant concurrency between the individual charges in this case. I repeat,
I have taken into account where there is overlapping criminality between the charges in this matter.
32 The sentencing purposes that are relevant in this case are primarily general deterrence - the need to send a message to others who might be inclined to offend in the same way as you did - that serious punishment will be the result. General deterrence is plainly the most significant sentencing principle for a case of aggravated burglary such as this. The need to deter you from further offending is also important. Denunciation of your offending through the sentence I impose and just punishment are important sentencing purposes as well and community protection is not without some importance in this case.
33 All of that said, although I can only take a very guarded view of your prospects of rehabilitation, there is hope for you. As Mr Thyssen said, sometimes people in your circumstances get to an age where they are sick and tired of spending their life in prison and can turn around their circumstances. For you obviously it will depend on your ability to stop using drugs and to remove yourself from the criminal elements in the area in which you are living which seems to have, in recent times at least, been in Warrnambool.
34 That is what you will need to do. As I say, there is some hope, and I will attempt as best I can to facilitate your rehabilitation through the imposition of a reasonably significant period of parole in this case.
35
Taking into account all those matters, and balancing those matters as best
I can, the sentences that impose in this case are as follows:
(a) In relation to Charge 1 of being a prohibited person in possession of a firearm, you are convicted and sentenced to a period of imprisonment of two years.
(b) In relation to Charge 2, possessing a drug of dependence, methylamphetamine, you are convicted and sentenced to a period of imprisonment of two months.
(c) In relation to Charge 3, possessing a drug of dependence, Valium, you are convicted and sentenced to a period of imprisonment of 14 days.
(d) In relation to Charge 4, possessing a drug of dependence, namely diazepam, you are convicted and sentenced to a period of imprisonment of 14 days.
(e) In relation to Charge 5, possessing a drug of dependence, Lyzalon, you are convicted and sentenced to a period of imprisonment of 14 days.
(f) In relation to Charge 6, possession of ecstasy, convicted and sentenced to one month's imprisonment.
(g)
In relation to Charge 7 of handling stolen goods, namely, the .22 bolt action rifle, taking into account your plea of guilty and the significance of that, you are convicted and sentenced to a period of imprisonment of
six months.
(h) In relation to Charge 8 of aggravated burglary, you are convicted and sentenced to a period of imprisonment of three years and six months.
(i) In relation to Charge 9 of criminal damage you are convicted and sentenced to a period of imprisonment of six months.
(j) In relation finally then to the suspected proceeds of crime offence, you are convicted and sentenced to a period of imprisonment of three months.
36 The base sentence is Charge 8. Eight months of the sentence on Charge 1 is cumulative on the base sentence of Charge 8, and one month of the sentence on the proceeds of crime offence is also cumulative on Charge 1 and on the base sentence of Charge 8, making a total effective sentence of four years and three months.
37
I fix a minimum non‑parole period in this matter of two years and 11 months.
Is it 196 days PSD, Mr Moore?
38 MR MOORE: Yes, Your Honour.
39 HIS HONOUR: One-hundred-and-ninety-six days of pre‑sentence detention to be deducted from the sentence that I have imposed under s18 of the Sentencing Act.
40 Pursuant to s6AAA of the Sentencing Act, I indicate that but for your plea of guilty I would have imposed a sentence of six years and two months, with a minimum non‑parole period of four years and four months.
41 I make the disposal orders and forfeiture order as sought by the prosecution in this matter.
42 Nothing else, Mr Thyssen, Mr Moore?
43 MR THYSSEN: No, Your Honour.
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