Director of Public Prosecutions v De Waij

[2017] VCC 938

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-00041

DIRECTOR OF PUBLIC PROSECUTIONS

v

CASPER DE WAIJ

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JUDGE:	HER HONOUR JUDGE HANNAN
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	11 July 2017
CASE MAY BE CITED AS:	DPP v De Waij
MEDIUM NEUTRAL CITATION:	[2017] VCC 938

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr C. Thomson
For the Accused	Mr A. Lewin

HER HONOUR:

1Casper De Waij, you have pleaded guilty to two charges of being a prohibited person possessing a firearm.  The maximum penalty for each offence is ten years' imprisonment.

2Further, you have pleaded guilty to two charges of trafficking in a drug of dependence.  The maximum penalty for each offence is 15 years' imprisonment. 

3Further, you have pleaded guilty to one charge of handling stolen goods.  The maximum penalty for that offence is 15 years' imprisonment.

4Finally, you have pleaded guilty to one charge of reckless conduct endangering serious injury.  The maximum penalty for that offence is five years' imprisonment.

5The facts which found your offending are as follows:

6On 20 May 2016 at about 8 am, police executed a search warrant on premises in Narre Warren where they located a .41 shotgun under the bed of another young man, who was arrested and interviewed in relation to possession of the shotgun.  He denied any knowledge of it.

7Subsequently on 22 June 2016 you attended the Narre Warren police station and made full admissions to possession of the shotgun, telling police that you had hidden the gun so that no one knew where it was.  You told police that you had it in your car, but you did not want to drive around with it and that someone had sold it to you from a farm.

8You were then bailed to an address that was a commercial warehouse in Williamstown.  A few months later on 11 August 2016, firearms, including a .44 lever-action rifle, were stolen from an address in Cranbourne.  On 16 August 2016, you sustained a gunshot wound to your left hand.  Subsequent to being shot, you attended at a friend's house in Carnegie, parking a BMW vehicle at the rear of the address.  You removed drugs and a .44 lever-action rifle from the car and put them in the house.  You then went to the Alfred Hospital, arriving at 2.10 am seeking treatment.

9On 18 August 2016, police executed a search warrant on the Grange Road, Carnegie address and found under the bed the .44 lever-action rifle and 19 rounds of ammunition.  They noted that the rifle was loaded.  Investigations revealed that the rifle had been stolen earlier that month.

10In addition to the firearm and ammunition, police also located 85 ecstasy tablets, 3 grams of crushed ecstasy and 15 grams of ketamine, together with a jumper with blood on the left shoulder and additional ammunition, being four 8 mm rounds.  The estimated value of the drugs was about $5,000, and trafficking is put on the basis of possession for sale, noting that a trafficable quantity in relation to both drugs is 3 grams.

11Police searched the BMW and found a stolen set of numberplates attached to the car.  In addition, they found ecstasy tablets matching the tablets that had been found in the house.  In the boot, police located stolen jewellery including three rings, five sets of earrings and ten necklaces, worth about $4,750, together with .44 calibre rounds matching those found in the house and two additional spent .44 calibre rounds.

12Police had lawful intercepts in place which revealed that you knew that the rifle was stolen and that the drugs were yours.  You indicated during the course of recorded conversations that you obtained the BMW in exchange for a drug debt.

13As regards Charge 6, reckless conduct endangering serious injury, on
23 August 2016 you wrote a text message organising a meeting of a group called "South East Skids" that night.  This was a group engaged in high-risk driving on public roads, which endangered the safety of crowds who attended as spectators.  I recite the text in full:

"BUCKLE UP AND HOLD ONTO YA MUMS TITS. THE SOUTH IS COMING BACK WITH A BANG. ITS BEEN CUTE THE LAST COUPLE OF WEEKS BUT SERIOUSLY I KNOW GIRLS WHO HAVE POPPED MORE IN A NIGHT THEN I HAVE SEEN IN THE LAST COUPLE OF WEEKS. NO LONG MESSAGES LIKE MR NORTH USE TO (we talked about this at cloud) ITS TIME TO JUST GET OUT AND SMASH SETS AND LETS LOSE CARS TO TASK FORCE I SPEND MORE MONEY CHASING HOONS THAN SEX OFFENDERS. STOCKY UP GET YA 16 YEAR OLD SLUTS IN THE CAR AND LETS BRING BACK THE OLD DAYS. FIRST SPOT SENT AT 9.57 P.M. DON’T SIT IN SERVOS OR IN BIG CROWDS. BLOCK THE ROADS OR GO FUCK YA SELVES AND REMEMBER ITS US VERSUS THEM IF YOU WANT IT TO BE LIKE THE OLD DAYS BLOCK THE FUCKING ROADS. SMASH SETS NOT SLUTS. NO ONE BLOCKS YOU CAN ALL FUCK OFF. GOOD BYE IM MR GO FUCK YA SELF YOU DON’T NEED TO KNOW”

14At 4.20, you sent a list of locations for the skids meets that night to a co-offender named Forsyth.  At 9.57, you directed Forsyth to send out the first meeting point.  Over the course of the night, you progressively directed Forsyth when to send messages, and when to move the group.

15Police recovered CCTV footage showing a vehicle engaging in intentional high-risk driving, skidding on a road with crowds watching.

16On 25 August 2016, you agreed to meet police at a location in Clayton.  You were arrested and remanded in custody. 

17In relation to the seriousness of your offending, firearms are rightly a matter of real concern to our community.  Your possession, as a prohibited person, cannot be regarded other than as serious offending.  The location of a loaded firearm along with drugs you had in your possession for the purposes of trafficking speaks as to the issues, as does the fact that you had suffered a gunshot wound.  Guns are a scourge in our community and cause very real harm. 

18It was put upon your plea that you being shot was an attempted suicide, but the objective evidence, including intercepted calls made by you from the hospital, does not support this.  It was also not a matter that you disclosed to Dr Cunningham prior to his first report.

19Your trafficking, which I note is a single-date charge, and handling stolen goods, whilst serious, are not at the upper end of a range of offences of those types. 

20Finally, the charge of reckless conduct endangering serious injury is, in my view, a very serious example of an offence of this type.  It was calculated, premeditated offending.  You were clearly the organiser, you acknowledged that what you were doing was illegal, you effectively say that you have no regard for the law.  Specific and general deterrence must both be given appropriate weight in the sentence I will impose this day.  The community cannot and will not tolerate such wanton disregard for the law and public safety.  The message must be clear, that condign punishment will result in appropriate circumstances.

21You had been at liberty for about five weeks at the date of this offending having been released from custody on 6 April 2016.  I note that you report attending a psychiatric unit the day following your release, but you apparently left prior to being treated.  Your offending globally spans some three months.  Clearly, prior sentences have not had the desired deterrent effect.

22I further note that you were on bail in relation to Charge 1 at the time of the commission of the remaining offences.  Again, even this was insufficient to deter you from wilful, ongoing offending.

23You have admitted the contents of a criminal history, which reveals a long history before the criminal courts.  You have served terms of detention in a Youth Training Centre.  On 14 October 2011, you were sentenced to nine months' detention on numerous offences of dishonesty, including burglary, arson and also weapons offences.  On 13 April 2012, you were sentenced to a further term of youth training, but upon appeal you were resentenced to an 18-month community correction order on charges including reckless conduct endangering life, and speed dangerous, which I was informed by the prosecution related to you doing some 240 km/h on a freeway.  At that time, a mental health treatment condition was imposed.

24On 26 September 2012, you were sentenced to three months wholly-suspended on charges of affray and assault.  On 13 March 2013, breach proceedings were heard in relation to the CCO, and the order was varied to include further rehabilitative conditions.

25On 3 July 2013 you were sentenced to three months' detention for being a prohibited person in possession of a firearm, possessing ammunition, and other charges. 

26On 24 September 2013, there were further breach proceedings in relation to the original CCO, and the order was further varied. 

27On 16 October 2014, you were sentenced to 14 months' imprisonment on charges including driving offences, breach of bail and court orders, criminal damage and other charges.

28On 22 July 2015, you were sentenced to a further CCO for 12 months in relation to charges of assault in company and driving whilst suspended.  Mental health treatment and rehabilitation was ordered.  I note that the first charge on this indictment breaches that order.

29It is relevant to note that you have no prior convictions in relation to drugs matters.

30As regards your personal circumstances, you were born in Holland and migrated to Australia with your mother and father at the age of three.  You have two older maternal half-sisters.  You attended Red Hill Primary, and the family then returned to the UK for several years.  You report being sexually abused at this time by a teacher.

31After returning to Australia, you attended Dromana Secondary College.  You completed your education at Chisholm TAFE doing a Year 10 equivalent.  You have had what can only be described as a sporadic, unskilled work history.  You told Dr Cunningham, and it was put upon your plea, that you have a history of trauma at the hands of your father who abused you both physically and sexually.  You told Dr Cunningham that your father had at one time attempted to kill the whole family by crashing the car.  You report that your father fled Australia after being charged with attempted murder and that you have not seen him since you were 12.  These matters were not disputed by the prosecution, and I accept for the purposes of sentencing that you had a childhood marred by trauma.

32You left home at 16 and lived on the streets.  Your prior history includes numerous road safety offences, but in 2013 you purported to be reformed and you participated in a program aimed at warning young drivers of the dangers of engaging in this type of activity.  Given the offending to which you have pleaded before this court, that was either insincere, or perhaps short-lived. I note that Dr Cunningham thinks that this was an example of you adapting, effectively to try to be liked. 

33Your personal history is somewhat difficult to accurately determine, but you report that you have suffered a head injury, been shot, and stabbed.  You also reported that you had been kidnapped for three days a few months prior to your arrest. 

34You have a history of polysubstance abuse and of alcohol abuse.  You have used amphetamine daily since the age of 16.  In addition, you have abused prescription medication and used a range of other drugs of addiction.  You report being abstinent whilst in custody.  And you have, whilst in custody, expressed a desire to be treated in residential rehabilitation upon your release.  The test of course will come at the time that you are released into our community.

35Since your remand, I note that you have engaged in a variety of educational activities and you have gained a number of certificates, which were exhibited upon your plea.  These courses were relevant to drug rehabilitation, personal issues and future employment.

36Exhibit F is a letter from you.  You detail some aspects of your history, your reflection and remorse.  You also state your future intentions as regards conduct and drugs.  It is to be hoped that you have the determination and courage which will be required to make the changes necessary to allow you to step out of the revolving door of criminality and custody.

37A number of references and testimonials were tendered, including correspondence from your mother who confirms your history of abuse and her ongoing support of you and your rehabilitation.  I also received correspondence from your sister.  She too remains supportive of you, as do your friends, who have provided references which are all part of Exhibit G.

38I have received two reports dated 28 November 2016 and 15 May 2017 from
Dr Cunningham at the first hearing of this matter.  He assessed you in custody.  It is his opinion that you meet the criteria for a diagnosis of borderline personality disorder.  He says this disturbed your personality development and leads you to easily adapt your identity to antisocial peers.  He says you present with difficulty managing impulsivity and reactive moods.  He opines that treatment will require several years of engagement due to the complex nature of trauma and the difficulties in treating this.

39Dr Cunningham notes that you report a history of self-harm and that you have spent time in psychiatric wards after suicide attempts.  The matter was adjourned so that further information could be provided to Dr Cunningham, with a view to him providing an addendum report if appropriate. 

40I received a further reported dated 5 July this year.  Dr Cunningham was unable to advance the issue of the gunshot, save to say that suicidal behaviour is a symptom of borderline personality disorder and that your presentation was consistent with such disorder.  He explains your participation in the road trauma program as you adapt in your presentation to different groups and situation, which is again consistent in his view with his diagnosis.  It remains concerning that your untreated symptoms again saw you engage in conduct which was reckless, dangerous, and in Mr Cunningham's opinion, self-destructive.

41Parity is always a relevant sentencing consideration.  Two of the persons who forwarded your messages and thus assisted in your offending were sentenced in the Magistrates' Court to a CCO, and in one case it was combined with three months' imprisonment.  In my view, your role is to be distinguished.  You are the architect, and your prior history makes clear that specific deterrence must be given weight in circumstances where you set out to flout the law and public safety.

42In my view, your prospects of rehabilitation are guarded at best.  You have a substantial prior history, you show no real regard for the law.  You are in my view an arrogant young man who has not learnt from prior experience of the criminal justice system.

43That said, you are only 23, and the community must thus maintain a real interest in your rehabilitation because that is in the community's best interest.  It is the community's best protection into the future.  The court can perhaps see the beginning of a willingness to change, demonstrated by your engagement with services in custody.

44Your ongoing family and community support is also relevant, and positive as regards assessment of rehabilitation.  I note that it is agreed that
Dr Cunningham gave evidence in the Supreme Court proceedings that you are a high risk of reoffending.  He says further in his report that you are at a crossroads and that community engagement and treatment will best reduce risk and promote rehabilitation.  You say that you want to rehabilitate and that you have never felt so supported by family and friends.  The reality will only be tested by time.

45You are entitled to have taken into account your plea of guilty, following admissions to the police as regards your offending.  You saved the witnesses the ordeal of giving evidence, you have saved the community the time and expense of a trial, you are entitled to the full benefit of an early plea.

46As I have said previously, I accept that you have a life history which demonstrates a substantial history of trauma from a young age, that you were without real guidance, and I accept that this affected your psychological development as described by Dr Cunningham.  This provides background and context to your offending, and at least to some degree affects proper assessment of moral culpability.

47Sentencing is always a balancing exercise and I have approached my task on that basis.  As well as matters personal to you to which I have referred, I must take into account relevant sentencing considerations.  Your sentence must manifest the community's denunciation of your conduct, and impose just punishment.  I must seek to protect the community in light of your entrenched offending. 

48General deterrence is of particular importance in matters such as this.  I must seek to deter not only you, but others who would engage in such conduct.  I have regarded this sentencing consideration as properly given significant weight in the sentence I will impose this day, particularly as regards Charge 6.

49Given your history, specific deterrence must also be given weight. 

50Your counsel ultimately submitted that a combined community correction order and term of imprisonment, having regard effectively to time served, is in range.  The Crown submit that the only disposition open is an immediately servable term of imprisonment with a parole period. 

51You are convicted and sentenced as follows:

52Charge 1, prohibited person possessing a firearm, 12 months;

53Charge 2, prohibited person possessing a firearm, 12 months;

54Charge 3, trafficking, seven months;

55Charge 4, trafficking, seven months;

56Charge 5, handling stolen goods, six months;

57Charge 6, reckless conduct endangering serious injury, 14 months.

58I direct that:

59Six months of the sentence on Charge 1;

60Six months of the sentence on Charge 2;

61Two months of the sentence upon Charge 3;

62Two months of the sentence upon Charge 4, and;

63Two months of the sentence upon Charge 5 be served cumulatively with the sentence upon Charge 6 and upon each other.  That makes a total effective sentence of 32 months.  I direct that you serve 20 months before becoming eligible for parole.  I direct that 321 days be reckoned as served.

64I direct it be noted in the records of the court that apart from your plea of guilty, I would have sentenced you to a total effective sentence of 42 months with a minimum of 32.

65I make the disposal order in the terms of the draft, to which you have consented.  I make the forfeiture order in the terms of the draft to which you have consented.

66Finally, the prosecution make application for a forensic sample to be taken from you for placement on the database. Pursuant to s.464ZF of the Crimes Act, you do not oppose the making of that order.  I am satisfied it is in the interests of justice having regard to the seriousness of your offending and your prior history, I make the order in the terms sought.

67Any licence you hold is cancelled, you are disqualified from driving in the state of Victoria for a period of five years, effective today.

68Counsel, just check the cumulations please. 

69COUNSEL:  I agree with that Your Honour.

70HER HONOUR:  Remove the prisoner, please. 

71MR THOMSON: Your Honour needs to give him a warning about the s.464ZF sample.

72HER HONOUR: Yes. In relation to the s.464ZF sample, it will be taken by way of a buccal swab. If a sufficient sample cannot be obtained by buccal swab, a blood sample will be taken, police may use reasonable force to enable that procedure to be conducted. Nothing further?

73COUNSEL:  No Your Honour.

74HER HONOUR:  Thank you.  Yes, I will just stand down briefly while we reassemble the court, thank you.

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