Director of Public Prosecutions v Carter
[2019] VCC 2243
•19 December 2019
| IN THE COUNTY COURT OF VICTORIA AT MILDURA CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-01677
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DANIEL CARTER |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Mildura | |
DATE OF HEARING: | 19 November 2019 | |
DATE OF SENTENCE: | 19 December 2019 | |
CASE MAY BE CITED AS: | DPP v Carter | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 2243 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Criminal law – sentencing – burglary, theft, arson and theft of firearms
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D O’Doherty (plea) Mr A Malik (Sentence) | Abbey Hogan, Acting Solicitor for Office of Public Prosecutions |
| For the Accused | Ms J Turfrey | Rebecca Boreham Solicitors |
HER HONOUR:
1 Daniel Carter, you have pleaded guilty before me on indictment to seven charges. Charge 1 deals with a burglary that was committed on 7 February 2019, in relation to 91 Etiwanda Avenue, Mildura; Charge 2 relates to theft of six televisions; Charge 3 relates to theft of various keys belonging to Mildura Houseboats; Charge 4 relates to arson, destruction by fire of an office belonging to Mildura Houseboats; Charge 5 relates to burglary at Trafalgar Drive, Mildura; Charge 6 relates to theft of firearms belonging to Trevor Mitchell; and Charge 7 relates to theft of five boxes of ammunition being the property of Trevor Mitchell.
2 The maximum penalty for burglary and theft is 10 years’ imprisonment. The maximum penalty for arson and for theft of firearms is 15 years’ imprisonment, reflecting the seriousness of the offending.
3 Charges 5, 6 and 7 were committed in company with Bryton Lockerbie.
4 Mr Lockerbie was sentenced in this Court on 20 November 2019 in respect to his charges as well as, a summary charge being commit an indictable offence whilst on bail. He was convicted and placed on a Community Correction Order of two years duration with special conditions, in addition to the core conditions, that he perform 100 hours of unpaid community work, there was supervision and assessment and treatment in respect to drug abuse or dependency as directed, and mental health assessment and treatment that is necessary, also programs to address underlying offending behaviour.
5 Mr Lockerbie was aged 20 at the time of the offending. He is now 21. You are aged 23, and you were 22 at the time of the offending. You knew each other through meeting at a local skate park, but you have also both been part of a drug-using milieu. At the time of the offending, you were living together at the same premises.
6 Mr Lockerbie had a number of appearances in the Children’s Court and had been held at times in custody in juvenile detention. He is in a relationship and recently his son, Ari, was born on 10 September 2019. He had a chronic history of long-term cannabis use, as well as methylamphetamine use. He is a young offender, entered a plea at the earliest stage, he was cooperative and made a further statement admitting the offending and therefore obtained a significant discount on his sentence accordingly.
7 Daniel Carter, you admitted your prior criminal history. There are two entries, one on 14 January 2015 relating to theft of a motor vehicle, theft, unlicensed driving and fail to answer bail. Without conviction, you were placed on an adjourned undertaking for a period of one year. On 22 May 2018, you were convicted of using an unregistered motor vehicle on a highway, unlicensed driving, drive whilst exceeding the prescribed concentration of drugs and drive in a manner dangerous times two, and with conviction you were fined an aggregate fine of $1,000 and your licence was cancelled and you were disqualified for three months.
8 I shall now sentence you on the basis of the Summary of the Prosecution Opening.
9 On Thursday, 7 February 2019, you attended 91 Etiwanda Avenue, Mildura, which is the location of the business, Mildura Houseboats. You gained access to the main office area of the building by breaking through one of the office windows. You stole several sets of houseboat keys from the office. (Charge 1, burglary)
10 You left the office and proceeded to where the boats were moored on the bank of the Murray River, where you used the keys to gain access to enter four houseboats. You then removed six televisions and various other items from inside the houseboats. (Charge 2, theft)
11 Before leaving the business premises, you set fire to the office building and a blue Mitsubishi Trident utility vehicle, which was parked nearby. You lit the fire by igniting petrol that you found in a fuel tank by the boat ramp. You lit the fire so that your fingerprints would be destroyed. The fire was observed by police and the Country Fire Association attended to extinguish the fire. (Charge 3, arson)
12 The damage caused to the premises and the motor vehicle is estimated to have totalled $32,000.
13 You then used a tinny to take all of the stolen items across to New South Wales.
14 On 15 February 2019, you, in company with Mr Lockerbie, were at a friend’s house in Mildura where you were using methylamphetamine. A conversation took place that led to you both deciding to steal firearms owned by your step-father, Mr Trevor Mitchell. The firearms were stored in a shed at 9 Trafalgar Drive, Mildura, where he lived together with your mother, Ms Selena Mitchell. You arrived at 9 Trafalgar Drive at about 10.00am and you went into the house first to make sure nobody was home. You both then proceeded through a gate in the carport to the shed. You removed the louvre glass panels of the shed so that you could gain entry. You then reached in and used pliers to unlock the shed door.
15 You opened the shed door and entered, followed by Mr Lockerbie. (Charge 3, burglary) Mr Lockerbie located a multi-tool and utilised this to lever the bolt from the front of the gun safe. You both opened the safe and removed all items, including:
· 1 x Lanber shotgun
· 1 x Remington Centrefire rifle
· 1 x BRNO Rimfire rifle
· 1 x Sterling Rimfire rifle
· 1 x Webley and Scott air rifle
· 5 x boxes of .22 ammunition
· 1 x box of .08 primer
· 1 x bottle of .308 gunpowder
· Numerous shotgun shell boxes
16 You put all the items taken from the safe in a white recycling bag, but for one of the firearms, which was put in a different bag. You then sprayed the safe with a can of degreaser to get rid of your fingerprints.
17 You used your iPod to contact a friend, Les Yarham, to ask him for a lift from the address. Mr Yarham attended and picked you up and then took you to his address. You took the white recycling bag containing four of the stolen firearms and the ammunition to that address. (Charge 3, theft of firearms; Charge 4, theft)
18 Your co-accused, Mr Lockerbie, returned to his home in a taxi and he took with him the swag bag containing the remaining stolen firearms. He placed the firearms under his bed.
19 Upon arrival at Mr Yarham’s address you unloaded the ute and went inside the house, where another male, Chris Dei Mase, was present. You sent a message to Mr Lockerbie letting him know that you had arrived, and then he made his way over to Mr Yarham’s address.
20 You, Mr Yarham and Mr Dei Mase had the firearms spread out on a tarp and proceeded to sort the ammunition to match the firearms. Mr Lockerbie arrived. A conversation took place between you and Dei Mase about the sale and purchase of the rifles. You told Mr Dei Mase that if he were to buy a firearm, that you would probably end up buying it back in about a month or so, because you were only doing the job to get back at your step-father. Mr Dei Mase and Mr Yarham each took a rifle.
21 Mr Lockerbie decided to leave and told you to sort it all out and not to bring any of the guns back to the house. Mr Lockerbie asked you to get rid of the firearm which he had taken earlier and hidden under his bed.
22 Once at 352 Etiwanda Avenue, you asked Mr Lockerbie if he could help you to sell the other guns. Mr Lockerbie sent a friend a message on Snapchat to see if he was interested in buying the guns. A conversation took place between that friend, Mr Philip Neary, and you, resulting in Mr Neary arranging to attend the address.
23 Mr Neary arrived about 1.00pm at the address, and he purchased the two remaining rifles (a shotgun and a .22 rifle). Mr Neary provided $250 and a gram of cocaine as payment, initially with an agreement to pay a further $100 at a later stage. He was picked up from the address by a third person, taking the firearms with him.
24 Mr Lockerbie asked you to bury two of the remaining firearms in the back garden because he did not want them in the house. You buried the firearms in the backyard veggie patch.
25 Later in the evening of 15 February, Mr Dei Mase and Mr Yarham decided to return the firearm Mr Dei Mase had taken possession from you. They returned to your address in Etiwanda Avenue and Mr Dei Mase handed back to you both the rifle and ammunition.
26 Later that night, Mr Lockerbie’s friend, Mr Dennis Johnson, arrived at the address and a conversation took place about him buying the rifle that had just been returned by Mr Dei Mase. He took the rifle that night but did not pay for it.
27 Subsequently, Mr Dei Mase and Mr Yarham told your step-father, Mr Mitchell, that his guns were missing from the shed. Mr Mitchell checked the shed and noted the bolt of the gun safe had been tampered with, and the safe was no longer secure. When he opened the door he saw that all of his firearms, some ammunition and cleaning items were missing. He then called the police and reported the incident.
28 You were arrested on Saturday, 16 February 2019 at the address at Etiwanda Avenue, Mildura. Police searched a caravan parked in the driveway, where they located a small TV, one of which was identified as being part of the six that had been taken from Mildura Houseboats.
29 Police seized an iPod belonging to you that you used as a mobile phone. Your Facebook messenger account on the phone revealed a conversation with Mr Lockerbie that led to him being identified as a co-offender in the burglary at your step-father’s house.
30 Mr Lockerbie was then arrested and interviewed.
31 When formally interviewed in which you made admissions to the offending. You then approached the police on Sunday, 17 February 2019 and stated that you wished to provide a statement. In that statement you made full admissions to the offending on both 7 and 15 February 2019. Four of the five stolen firearms have now been recovered. The stolen ammunition has also been recovered.
32 Mr Carter, the offending is serious, involving, as it does, the forcible entry into 91 Etiwanda Avenue, Mildura and the theft of the various items. In addition, you destroyed the Mildura Houseboat’s office and the utility in an attempt to avoid detection for the break in and the thefts. The damage to the office is estimated to have totalled $32,000.
33 In addition, you forcibly entered the carport and shed at 9 Trafalgar Drive in company with another and took the items that have been previously detailed with a view to on-selling and distributing those firearms and ammunition.
34 In sentencing you, I must formally denounce your behaviour and the sentence must emphasise both general and specific deterrence. I consider your moral culpability is high but moderated to a degree by reason of your underlying developmental disability accentuated by your ABI.
35 Ms Turfrey submitted on your behalf and I agree that arson is a very serious offence that would ordinarily call for the imposition of a custodial term of imprisonment. Notwithstanding the seriousness of the offence, she submitted that it was at the lower end of gravity. Nonetheless, she conceded that a period of imprisonment was appropriate penalty. She further submitted, and I accept, that the burglary and theft offences were committed over a relatively short period of time. In relation to the offending involving your step-father, that involves a breach of trust which is an aggravating feature of your offending.
36 There are a number of mitigating features which I accept. You were cooperative with the police eventually and made full admissions in the record of interview and statement that you provided to police. You entered a plea of guilty at an early stage and, through your plea, you have avoided the necessity of witnesses having to come to court to give evidence in your trial. There is real utility in your plea. The State has been spared the expense and inconvenience of a trial. You have facilitated justice and your sentence will be discounted accordingly.
37 I accept that you have demonstrated genuine remorse. Those sentiments were expressed to Dr Borg when she assessed you. You are now sorry for the impact of your offending.
38 At the time you were homeless and without a job, and you were heavily using methylamphetamines. The burglary and theft involving Mildura Houseboats was committed so as to make money to further service your drug habit. You stole the firearms from your step-father because of your antagonistic relationship with him.
39 You were born and raised in Mildura and your parents separated when you were aged five months. You have two half-siblings who are younger than you. Your mother and grandmother were present in court and remain supportive of you. You have had a difficult relationship with your step-father. Your mother re-married when you were about three or four years of age. You did not complete Year 9 at school. You attempted, but did not complete, a TAFE course.
40 You have had a long-term addiction to drugs commencing with cannabis at age 15 and using methamphetamines from age 16. At the time of the offending, you were using up to a gram a day.
41 You left home when you were aged 16 because of your personal difficulties with your step-father and went to live with your grandmother. When this offending occurred you were homeless and you were couch-surfing.
42 Another feature of your life is that you were involved in a transport accident in 2017, following which you suffered a significant Acquired Brain Injury (ABI). You were assessed by Dr Linda Borg, and I have read her report of 4 July 2019. She states that you have very likely suffered a very severe ABI but that you have made a remarkable recovery to date. She noted that there is an underlying developmental disability which the ABI has extenuated.
43 Your counsel, Ms Turfrey, did not seek to rely upon the provisions of Verdins. Nonetheless, I have taken into account the content of Dr Borg’s report in a general sense. I accept that whilst you have made a good recovery from your severe ABI you have an underlying developmental disability that has been accentuated by your ABI. This to a large extent gives context to this offending and explains your ill-considered judgment and actions. It does not excuse your offending
44 Following your accident, you were at Caulfield ABI Rehabilitation Centre until 7 December 2017, at which time you returned to Mildura. You had a job painting with a local painter for about six months, but then stopped because you started using drugs. You were suffering anxiety and depression and were using drugs to self-medicate. In the past you have been reluctant to engage with psychologists in the past. In jail you have been prescribed antidepressants for anxiety and depression.
45 You have been abstinent from drugs in a controlled environment for about 12 months. You express a desire to remain drug-free. Dr Borg, considered that you had insight and sufficient problem-solving skills to overcome your cognitive limitations to enable effective engagement and to prevent re-offending. She made numerous recommendations, including suggestions for guiding you towards employment through the Disability Employment Services. She also recommended that you receive drug and alcohol counselling adapted for your level of cognitive functioning. She recommended that you be reviewed by a psychiatrist that specialises in ABI, in view of making new recommendations to manage your mood and behaviour through medication. She also recommended counselling. She suggested that you would benefit from living within a supported living environment with structured routines for activities of daily living and community access. She recommended occupational therapy in attended care support. Provided that you remained drug-free and are willing to accept the assistance recommended, I conclude that you have good prospects for rehabilitation.
46 In your favour, whilst in prison you have remained drug-free. There have been some drug screens that are all negative. You have expressed an intention to remain drug-free in the future and understand that you need help to remain drug free. You had undertaken some drug programs in jail (“Ice and me” and the 6 hour AOD Program).
47 You have good support from your family with whom you have had regular telephone contact since your remand.
48 You have undertaken various programs related to your drug issues, including Take Stock AMB, Adapt Ice and Me, a six hour alcohol and drug program, various OH&S certificates and cleaning certificates, such that you have utilised your time in custody productively working as a cleaner at Ravenhall Prison.
49 This is your first experience of an adult gaol. You had had a difficult time in custody. Having reference to the affidavit sworn by Jennifer Ann Hoskins I accept that gaol has been difficult for you. It has been very traumatic. On 14 September 2019 you were sexually assaulted whilst at Marngoneet Prison, so much so that you were moved to protective custody to Ravenhall Prison in mid-September 2019. There have been real concerns about your safety and at times you have been held in protective custody.
50 For the future, you would like to re-engage with your church, namely the River Edge Church in Mildura. You have expressed a desire to work in hospitality. Eventually, you want to establish your own business.
51 Ultimately, your counsel sought a disposition that involved a combination sentence with release on a Community Correction Order that focuses on rehabilitation, including supervision treatment for psychiatric conditions, drug and alcohol counselling and ABI-specific case management. Alternatively, she sought a jail term with a non-parole period.
52 Mr O’Doherty on behalf of the prosecution emphasised that this was serious offending. He conceded that you had spent significant time on pre-sentence detention already. He conceded that a combination sentence was within the range of appropriate sentencing dispositions. He emphasised that there were significant differences between you and your co-accused, Mr Lockerbie, having regard to the fact that he was younger, serious offending was involved, and that he played a lesser role in the burglary and theft of the firearms.
53 Due to the differences between you and Mr Lockerbie, there will be a disparity of sentence. You were the instigator of the offending relating to the firearms and acted alone with respect to the other offending.
54 In formulating a just sentence I have had regard to totality. I consider that the arson charge represents imprisonment to be followed by a community corrections order, you will be placed on a community corrections order for the remaining charges.
55 The formal court orders will be:
56 In relation to Charge 4, arson (office of Mildura Houseboats). You are convicted and sentenced to 307 days imprisonment and a community corrections order of 2 years and 6 months duration to be commenced upon you released
57 In relation to Charge 1, burglary (Mildura Houseboats); Charge 2, theft (six televisions); Charge 3, theft (various keys belonging to Mildura Houseboats); Charge 5, burglary (15 Trafalgar Drive); Charge 6, firearms theft; and Charge 7, theft (five boxes of ammunition). You are convicted and sentenced to a community corrections order of 2 years and 6 months duration.
58 I will engross on the Court order that you are a high risk offender.
59 The Community Corrections Order will emphasis treatment for drug and alcohol abuse. I also direct that you undertake a mental health program and offender behaviour program with an emphasis on ABI specific management.
60 I make the following declaration of pre-sentence detention. I direct that you have served 307 days pre-sentence detention and that will be noted in the records of the Court.
61 I make the following s6AAA[1] declaration but for the plea of guilty, the sentence the Court would have imposed is a total effective sentence of 2 years and 6 months with a non-parole period of 18 months.
[1]Sentencing Act 1991 (Vic)
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