Director of Public Prosecutions v Chambers
[2013] VCC 1962
•29 November 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-13-01828
CR-12-01987
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| Stephen Barry Chambers |
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JUDGE: | His Honour Judge Grant | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 November 2013 | |
DATE OF SENTENCE: | 29 November 2013 | |
CASE MAY BE CITED AS: | ||
MEDIUM NEUTRAL CITATION: | [2013] VCC 1962 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A Albert | OPP |
| For the Accused | Mr J Lavery | Tony Danos |
HIS HONOUR:
1 Stephen Chambers you have pleaded guilty to three counts of theft, two counts of prohibited person possessing a registered firearm, two counts of shorten the length of a longarm, one count of possess drug of dependence, one count of attempted armed robbery and one count of recklessly cause injury.
2 You have also admitted a significant number of prior offences going back to 1984. You have prior convictions for drug offences, firearms offences, dishonesty offences and offences of violence. You have variously been fined, released on community based dispositions, placed on suspend sentence orders and sentenced to relatively short periods of imprisonment.
3 The maximum penalties for these offences are – theft, ten years imprisonment; prohibited person possessing a registered firearm, ten years imprisonment; shorten the barrel of a longarm, ten years imprisonment; attempted armed robbery, 20 years imprisonment; and recklessly cause injury, five years imprisonment. The maximum penalty for possess drug of dependence depends on whether the offence was committed for any purpose relating to trafficking. In this case, where there was no such purpose, the maximum penalty is imprisonment for one year or 30 penalty units.
4 The prosecution tendered a summary of your offending which is exhibit A on the plea hearing. I do not propose to read the summary again. It will be annexed to these sentencing remarks. Briefly in relation to charges 1 to 7, on or about 13 March 2012, you were living in a bungalow at the rear of your sister’s home in Ferntree Gully. Her partner, who had died in 2011, owned five longarms that were stored in a locked cabinet in the house. You found the key to the cabinet and stole two of the firearms. You shortened the barrels of both firearms. You told the police that you shortened the barrel of one of the firearms with the intention of using that firearm to commit suicide. After deciding against that course, you swapped that firearm for heroin. This behaviour constitutes a serious breach of the law. Clearly, the recipient of the firearm may use it - or provide it to someone else who may use it - in furtherance of criminal activities. We have a system of firearm registration in this state that is designed to protect the community from persons who would obtain firearms to be used for criminal purposes. Your behaviour undermined that system and thereby undermined the safety of our community.
5 You were in possession of the second firearm on 20 March 2012, when you committed charges 8, 9 and 10. It is not alleged you produced the firearm during the course of the attempted armed robbery. The firearm was in your bag. Even so, it is most concerning that on this day you were carrying a firearm around the streets of Melbourne.
6 The victim of the attempted armed robbery was, like you, a heroin user. She attended in Nelson Street Abbotsford at about 11.45 am to meet you and help you buy heroin. You entered her car, produced a knife and demanded heroin from her. During the incident she saw the firearm in your bag and this added to her fear. The victim threw her purse at you saying “that’s all I’ve got.” She grabbed the firearm and ran off across Nelson Street. You chased her and struggled with her for possession of the firearm. During that struggle the firearm discharged. You bit her on the forearms forcing her to release the firearm. You fled the scene taking the victim’s purse. You were pursued by a particularly brave officer from the City of Yarra. You eventually gave up running and the police attended and arrested you.
7 The victim suffered superficial abrasions to the 4th and 5th knuckles of her right hand, bruising on the outer aspect of her left arm and lacerations to both forearms caused by biting. She has provided a victim impact statement that indicates she has suffered Post Traumatic Stress Disorder as a result of your criminal behaviour. She says this in her statement, “The fact that there was a gun involved that actually went off was to me a near death experience. I was traumatised and hyper vigilant. I had daily flashbacks and could not sleep.” The victim is still not working.
8 Mr Chambers, this is serious offending. You produced a knife and demanded drugs from the victim. At the same time, you had a loaded firearm in your bag. When the victim ran from you, you chased her and injured her in your efforts to recover the firearm. The firearm discharged in the struggle. You stole the victim’s purse. All this happened in the middle of the day in a suburb of Melbourne. In addition, the victim still suffers psychological injury as a result of your behaviour.
9 In offences of this type, general deterrence assumes a central role in sentencing. Given your criminal history, specific deterrence is also relevant, as is denunciation and punishment. I must, of course, give appropriate weight to those matters raised in mitigation and consider those matters relevant to your possible rehabilitation. I turn now to those matters.
10 You are a 51 year old man. You are the youngest of three children. Your parents separated when you were four years old and you remained living with your mother until the age of 17. You completed year 11 at school before commencing an apprenticeship as an electroplater. You worked in that industry for 13 years. You moved into sales for a period of time before commencing work in office re-locations in 2001. You sustained a serious injury to your back in 2004 and because of that, have not been able to obtain regular work. You were prescribed Oxycontin for pain relief. A reference from Dr Elshenawy indicates that you started consulting him in August 2011. You were suffering from chronic lower back pain, depression and opioid addiction. You were referred to a pain specialist (Dr McCarthy) because you were taking Oxycontin in large doses. You admitted to Dr McCarthy that you were injecting that drug. Dr McCarthy took you off Oxycontin and started you on methadone. Your counsel indicated that shortly thereafter you started using heroin. Clearly, these offences are heroin related. One of the firearms was exchanged for heroin and the attempted armed robbery was committed to obtain heroin. For completeness I should note that in addition to your Oxycontin abuse and more recent heroin abuse, you have been a persistent user of cannabis since about the age of 18.
11 In 2008 you received a significant pay out for your back injury. Your counsel indicated that the money has “now all gone”.
12 You have been in two long term relationships. The second lasted from 1996 to 2008 and there are two children. The relationship was described as volatile. Intervention orders are in place and have been breached in the past.
13 In 2010 you went to live with your sister. The theft of the firearms has affected that relationship.
14 I have been provided with a psychological report from David Ball, forensic psychologist. He describes you as having a cannabis use disorder. He also says this:
“Mr Chambers has experienced an episode of depression that satisfies the DSM 5 diagnostic criteria for Major Depressive Episode. Based on his self report and medical records, these symptoms were operating at the time of his offending and linked to the charges before the court. He has responded well to treatment and is beginning to manage his depressive symptoms.”
15 Mr Ball also notes that your depressive symptoms will require effective long term monitoring and treatment as warranted.
16 I accept your counsel’s submission that, as far as charges 1- 6 are concerned, there should be some mitigation of sentence to reflect your mental state at the time of that offending. I also accept that as far as all charges are concerned there should be some mitigation of sentence to reflect the fact that jail will be more onerous for you than for someone without your mental health problems. I note that you are currently held in the Chilwell High Dependency Unit. That unit accommodates prisoners with emotional distress, psychiatric or personality issues that might make them vulnerable within the wider prison population.
17 Mr Chambers, you have pleaded guilty to these charges. You were originally indicted on different offences than those to which you pleaded guilty. On the filing of a fresh indictment you entered pleas of guilty so you will be given appropriate credit for that. I am satisfied that you are remorseful for your criminal behaviour. In addition, your guilty plea has relieved the victim of the attempted armed robbery from the burden of giving evidence and also avoided the cost of a criminal trial.
18 Your counsel submits that you are a good prospect for rehabilitation. I cannot agree with that assessment. You are a man with a large number of prior court appearances. You have been the recipient of a number of orders designed to assist your rehabilitation. You have been a long term abuser of cannabis and over more recent times Oxycontin and heroin. The offences before me mark a significant escalation in your offending behaviour. I do accept Mr Ball’s assessment that you are now presenting as generally insightful and that you have responded well to pharmacotherapy. I note his invitation for you to participate in the “Best Chance” program upon your eventual release from prison. If you are able to follow through in the way Mr Ball suggests your prospects of rehabilitation would be stronger. Your failure to follow through in the past explains why I am extremely guarded about your future prospects.
19 Mr Chambers you will be convicted and sentenced as follows. On Charge 8, attempted armed robbery, two and a half years' imprisonment. This is the base sentence. On Charge 9, recklessly cause injury, nine months' imprisonment. On Charges 1 and 4, two counts of theft, 15 months' imprisonment on each charge. On Charges 2 and 5, 15 months on each charge. On Charges 3 and 6, nine months' imprisonment on each charge. On Charge 7, one months' imprisonment and on Charge 10, six months' imprisonment. I order three months of the sentence on Charge 9 and nine months of the sentence on Charge 1 be served cumulatively on each other and cumulatively upon the base sentence. This makes a total effective sentence of three years and six months. I order you serve a minimum period of two years and four months before you will be eligible for release on parole.
20 I make a declaration that you have served 283 days by way of pre-sentence detention.
21 If you had pleaded not guilty and been found guilty after trial, you would have been sentenced to a total effective sentence of five years with a minimum of three years and ten months.
22 I order the retention of the forensic sample pursuant to s464ZFB of the Crimes Act 1958.
23 I make the forfeiture orders requested by the prosecution.
24 Are there any other matters, gentlemen?
25 MR ALBERT: No Your Honour.
26 MR LAVERY: No Your Honour.
27 HIS HONOUR: Yes, thank you, you can be seated there Mr Chambers. You can be taken now, thank you.
- - -
Exhibit A:
DPP
-v-
Stephen Barry Chambers
SUMMARY OF PROSECUTION OPENING on plea
| Date of document: | 3/10/13 |
| Filed on behalf of: | Prosecution |
| Prepared for: Craig Hyland Solicitor for the Office of Public Prosecutions, 565 Lonsdale Street, Melbourne Vic. 3000. | Solicitor’s Code: 7539 |
Charges - Indictment no. C10782378.2
| Date | Charge | Offence | Subject |
| On or about 13/3/12 | 1 | Theft. | Boito shotgun |
| 2 | Being a prohibited person possessed a registered firearm. | ||
| 3 | Shorten barrel of a longarm. | ||
| 4 | Theft. | Birmingham 22 | |
| 5 | Shorten barrel of a longarm. | ||
| 6 | Being a prohibited person possessed a registered firearm. | ||
| 7 | Shorten barrel of a longarm. | Heroin | |
| 20/3/12 Victim: Aplar | 8 | Attempted armed (knife, Birmingham .22) robbery. | Heroin. |
| 9 | Recklessly cause injury. | Bruising, abrasions. | |
| 10 | Theft. | Purse |
Background
Chambers-
(1)was -
(a)heroin dependent.
(b)a “prohibited person” under the Firearms Act 1996.[1] On 19/9/11 he was sentenced to a total of 2 months imprisonment by the County Court on appeal from the Maqgistrates’ Court for theft x 2 and contravention of a family violence intervention order.
(2)from 2010 lived in a bungalow at 30 Silverton Drive, Ferntree Gully. His sister lived in the house at that property with her partner Kevin Pout.
[1] S. 3 Firearms Act 1996 provides that a "prohibited person" means -
in relation to a person—
(v) not more than 5 years have expired since the person finished serving a term of imprisonment of less than 5 years for such an offence.
Pout -
(1)owned 5 longarms. They were all registered.
(2)stored the firearms in cabinet that was locked with a large padlock.
(3)died in 2011.
Theft, shortening and possesssion of firearms
Chambers was arrested by police on 20/3/12 and interviewed in relation to the incident that occurred that day and is the subject of charges 8, 9, 10. Police on that day and on 22/3/12 attended at 30 Silverton Drive. Simpson was unable to find the key to the firearm cabinet. She permitted police to cut through the padlock to the cabinet. They found -
(1)two longarms had been removed from the cabinet. They were a -
(a)Boito shotgun
(b)Birmingham .22 calibre rifle.
Simpson did not give permission for those firearms to be removed.
(2)the sawn off barrel of the shotgun.
Chambers was interviewed by police a second time on 27/3/12. He said said:
(1)10, 11, 12, 15-19, 25-27, 54, 61, 62 Pout had 5 firearms in a gun cabinet. He found the key that opened the lock to the cabinet. He removed two firearms from the cabinet. – charges: 1, 4 – theft; charges 2, 5 – prohibited person in possession of registered firearm.
(2)10, 20-22, 27-34 He
(a)removed the shotgun about 2 weeks previously.
(b)originally took the shotgun to commit suicide.
(c)changed his mind.
(d)cut the stock and barrel off the shotgun as it was too big to keep in his room and to transport – charge 3: shorten barrel of longarm.
(3)10, 35, 39, 40, 46-49, 64, 113, 119, 121 He -
(a)had been sick for heroin.
(b)called his heroin dealer to swap the shotgun for heroin. The dealer rang him back with the number of a guy who might be interested.
(c)rang the guy. The guy agreed to swap heroin for the shotgun. They arranged to meet in Kilsyth. He drove to Kilsyth. They met.
(d)swapped the shotgun for .7 gm heroin and a bit of cannabis. That amount of heroin would normally cost $200 – charge 7: possess drug of dependence.
(e)had not seen the guy again.
(f)had written down the number of the guy but had lost it.
(4)49 He went home and used the heroin.
Charges 8, 9, 10
Aysin Aplar was heroin dependent. At about 9-10 a.m. on 19/3/12, Aplar was in Victoria St., Richmond. She me met a heroin user she knew as Con. He was with Chambers. This was the first time Aplar and Chambers met. Aplar, Con and Chambers -
(1)were all in the area to find heroin.
(2)were unable to do so as there were no suppliers about due to police presence.
(3)exchanged their phone numbers.
After Chambers arrest, police found Aplar’s number in the contacts list in Chamber’s phone under the name of “Jes”. Police examined Chambers phone and call records for his number. The examination showed calls between Aplar’s phone and the accused’s phone.
Date of call Time of call Duration Call from Call to 19/3/12 11.04.30 0 Aplar’s phone Accused’s phone. 11.05.36 0
On the morning of 20/3/12:
(1)Aplar drove to the Fitzroy-Richmond area from her home in Hawthorn. She went to her families old take-away shop in Brunswick St, Fitzroy for a short time.
(2)There were a number of calls between Aplar and Chambers. Aplar thought she might have been speaking to Con.
Date of call Time of call Duration Call from Call to 20/3/12 9.26 unknown Aplar’s phone Accused’s phone. 11.16.00 2.25 11.42.28 .25 11.45 unknown 11.47.08 1.00 (3)In the calls Chambers told Aplar that he-
(a)had $800 and women’s jewellery and wanted to buy 2 lots of 1.7 gm. heroin. Aplar was willing to help Chambers to buy heroin and/or take him to the pawn shop to get money.
(b)would be at the brewery in Abottsford at the corner of Church St. and Nelson St. The brewery was on the way home for Aplar.
At about 11.45 a.m. Aplar drove to the brewery. She parked in Nelson St. on the other side of the road to the brewery (photo book 3, photos28, 30). Chambers appeared. He -
(1)was wearing a workman’s fluoro top.
(2)was carrying a blue satchel “Billabong” bag (photo book 4, photo 3). In the bag was the Birmingham .22 calibre rifle that Chambers had removed from the firearms cabinet. Its barrel and stock had been cut down (photo book 3, photo 8) – charge 6: shorten barrel of longarm
(3)entered Aplar’s car and sat in the front passenger seat (Photo book 3, photo 19).
(4)produced a knife (photo book 4, photo 7) and demanded heroin from Aplar. Aplar -
(a)said she did not have anything. Chambers grabbed at the bags at the front of Aplar’s car looking for heroin (photo book 3, photo 24).
(b)during the incident observed that the accused was in possession of a firearm. She only saw the barrel of the firearm in the car. This contributed to her fear.
(c)had her purse in a slot underneath the steering wheel. She threw it at the accused, saying “that’s all I’ve got”. The purse contained Aplar’s cards and approximately $245 cash (photo book 4, photo 9).
(d)did not have any heroin in the car or on her. Chambers did not obtain any heroin – charge 8: attempted armed robbery of heroin.
(e)got out of the car. She grabbed the firearm and ran off with it across Nelson St. to the brewery side of the street.
Chambers -
(1)chased after Aplar. Aplar yelled for help.
(2)struggled with Aplar for the firearm on the footpath next to the brewery wall. They fell to the ground. During that struggle
(a)the firearm discharged.
(b)Chambers bit Aplar’s forearms - charge 9: recklessly cause injury. This forced Aplar to release the firearm.
(3)with the firearm returned to Aplar’s car and collected his bag.
(4)picked up Aplar’s purse and took it. – charge 10: theft
(5)ran along Church Street towards Victoria Street, Richmond.
Aplar’s cries for help, the struggle and the discharge of the firearm attracted the attention of persons in the area. One of them was a City of Yarra Traffic officer – Paul Malios. Malios –
(1)was in his City car in Nelson St. at that time.
(2)was in uniform.
(3)saw some of the incident.
(4)pulled up next to Aplar. She told Malios that she had been robbed and the robber had a gun. Malios told Aplar he would go after him.
(5)put on the flashing lights fitted on his car.
(6)followed Chambers. Aplar attempted to follow Malios and Chambers in her car. While doing so she had a minor collision with a tram in Victoria St. This ended her involvement in the pursuit.
Malios alerted other City officers of what was happening by radio and when he passed near them as he followed Chambers. Other City officers observed Chambers in the area and also followed him.
Chambers ran (see map on pg. 202 depositions):
(1)east along Nelson St.
(2)south along Church St. to the corner of Victoria St. Malios parked his car near the intersection of Church and Victoria Streets as he thought he had a better chance of following Chambers on foot - Malios was a triathlete.
(3)west along Victoria St.
(4)south on Lambert St.
(5)east on Baker St.
(6)north on Wells St.
(7)east in the lane connecting Wells St. and McKay St.
(8)south on McKay St. Just north of its intersection with Baker St. Chambers was observed by a City officer putting something in a green wheelie garbage bin. Police later searched the bin and found the firearm (Photo book 3: photos 5, 6, 7).
(9)east along Barker St.
(10)turned south along Johnson St. At this stage Malios was about 2-3 meters behind Chambers. Chambers stopped, turned to Malios, said he had enough and sat down.
Police -
(1)arrived at about this time.
(2)arrested Chambers.
(3)found the knife and Aplar’s purse (Photo book 4: photos 5, 6) in Chambers blue bag (Photo book 3: photos 12, 13, 14)
(4)did not find any heroin or any heroin packaging (e.g. foil).
(5)conveyed Chambers to the police station and interviewed him.
Aplar was examined by a forensic doctor. Injuries that resulted from the incident were:
(1)Superficial abrasions overlying 4th and 5th knuckles of her right hand (Photo book 1: photos 3, 4) In the doctor’s opinion the injury was consistent with blunt force trauma associated with tangential force and is a common site for injuries resulting from punching.
(2)Bruising on outer aspect of the left upper arm (Photo book 1: photos 18, 19). In the doctor’s opinion this was consistent with blunt force trauma.
(3)Injuries on the forearms caused by biting:
(a)5 cm. x 6 cm. wound to the inner aspect of the left forearm consisting of two semi-circular sets of multiple lacerations or abrasions approximately 4 x 4 cm. in span. (Photo book 1: photos 12, 13).
(b)6 cm. x 7 cm. wound to the inner aspect of the right forearm. consisting of two semi circular sets of multiple lacerations or abrasions approximately 4 x 4 cm. in span. (Photo book 1: photos 14 - 17). [2]
Police interview
[2] Forensic dentists on examination of photos of this injury opined that it was most likely caused by an adult human bite.
Chambers in his police interview on 20/3/12 said:
(1)72, 73, 247, 249 He had a heroin habit.
(2)10, 27 He knew the female that he met that day as Jess. She deals in heroin in Richmond.
(3)76, 77, 133 He had given Jess his phone number for the purpose of sourcing heroin. She phoned him a few times.
(4)15, 27, 74, 75, 135, 136 He arranged to meet Jess in Richmond to get heroin. He told her that he would not be buying a lot.
(5)65-72 He drove to Richmond at 10.30 – 11 a.m.
(6)104, 105, 106, 158, 159 He was wearing a fluoro top.
(7)15, 99, 123, 124, 139, 140, 146, 147, 149, 154, 16 He -
(a)went into Jess’s car.
(b)did not have much money.
(c)threatened Jess with a pocket knife and demanded drugs. She showed him some heroin. She handed him a foil.
(d)did not see how much heroin was there.
(e)said he wanted it all. She threw her red purse out of the car, grabbed his wallet and got out of the car.
(f)did not know why she threw her purse out of the car.
(g)told her to give him his wallet back.
(h)got out of the car and struggled with her for his wallet.
(8)15, 88, 89, 111, 112, 113, 115, 116 They fell to the ground in the- struggle. He -
(a)heard a crack. She must have been holding a pistol.
(b)did not see the pistol.
(c)heard it when they were on the ground.
(d)would not have run after Jess if he knew she was holding a pistol.
(9)122 At no stage did he hold a firearm.
(10)15, 118, 119, 120 He -
(a)bit her arm so she did not shoot him.
(b)pulled his wallet out of her hand.
(11)15, 96-99 He picked up her purse from where she threw it.
(12)92 , 93, 94 Jess was yelling that he had a shotgun and had taken her purse.
(13)15 He took off. People ran after him. He avoided them until he had enough and then sat down.
(14)16, 17 He did not know what happened to the heroin he took from Jess.
(15)22 He was arrested about 500 meters from the incident.
Chambers made “no comment” to some police questions:
maximum penalty
| Charge | Offence | Penalty |
| 8 | Attempted armed robbery. | 20 years |
| 1, 4 10 | Theft. | 10 years |
| 2, 5 | Being a prohibited person possessed a registered firearm. | 10 years |
| 3, 6 | Shorten barrel of a longarm. | 10 years |
| 9 | Recklessly cause injury. | 5 years |
| 7 | Possession of drug dependence. | 5 years and/or 400 p.u. |
| · If offence not committed for any purpose relating to trafficking (onus on defendant to establish on balance of probabilities). s. 73 Drugs, Poisons, Controlled Substances Act 1981 | 1 year and/or 30 p.u. |
Course of proceedings
On
(1)31/12/12, following a contested committal, Chambers pleaded-
(a)guilty to:
Theft of the Boito shotgun and the Birmingham .22 (7).
Being a prohibited person possessing a registered firearm x 2Boito shotgun (9).
Birmingham 22 (14).Shortening barrel of longarm x 2
Boito shotgun (16).
Birmingham (8)Theft of Aplar’s purse (6).
(b)not guilty to:
Armed (firearm, knife) robbery of the purse (1).
Robbery of purse (2)
Intentionally cause injury (4)
Recklessly cause injury (5)
Carrying a firearm concealed from view for the purpose of committing an indictable offence (11).(2)30/7/13, at the final directions hearing, defence indicated that Chambers would plead guilty to charges except armed robbery.
(3)3/9/13, at the adjourned final directions hearing, Chambers was arraigned on plea indictment C10782378.1. He pleaded guilty to the 7 charges on that plea indictment which were the same as charges 1-7 on the consolidated plea indictment C10782378.2.
(4)30/9/13, the matter was in the reserve list for trial on trial indictment C10782378 containing charges of
1. Armed (firearm, knife) robbery of theft of Aplar’s purse.
2. Theft of Aplar’s purse (alternative to charge 1)
3. Intentionally cause injury to Aplar.4. Recklessly cause injury to Aplar(alternative to charge 3).
A judge became available on the afternoon of 1/10/13. Empanelment of a jury planned for afternoon of 2/10/13. Discussions took place between the parties on 1/10/13. They resulted in an offer that was accepted on the morning of 2/10/13.(5)3/10/13 the matter was set for
(a)arraignment on indictment C10782378.2
(b)part hearing of the plea. The plea was to be adjourned to enable defence to obtain reports.
Victim impact statement
To be obtained.
Pre-sentence detention
226 days: 20/3/12 (arrest) – 31/10/12 (committal).
Prosecution position on sentence
An immediate custodial sentence is appropriate. Pre-sentence detention is insufficient.
Plea discount to be noted
The requirements of s.6AAA Sentencing Act 1991 on guilty plea are noted.
Forensic sample order
Retention order sought pursuant to s464ZFB of the Crimes Act 1958.
forfeiture orderS
Orders sought for firearm, knife etc.
Alexander Albert
(Barrister)
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