Director of Public Prosecutions v Dickson

[2023] VCC 731

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No.  CR-23-00554

DIRECTOR OF PUBLIC PROSECUTIONS

v

CHASE DICKSON

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JUDGE:	HER HONOUR JUDGE TODD
WHERE HELD:	Melbourne
DATE OF HEARING:	4 May 2023
DATE OF SENTENCE:	8 May 2023
CASE MAY BE CITED AS:	DPP v Dickson
MEDIUM NEUTRAL CITATION:	[2023] VCC 731

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Burglary; theft of firearm; intentionally damaging property; possession of a trafficable quantity of firearms

Legislation Cited:      Sentencing Act 1991 (Vic)

Cases Cited:Benkic v  R [2019] VSCA 34; Barry v R [2022] VSCA 9; R v Mills [1998] 4 VR 235; DPP v Clark [2018] VCC 583; DPP v Spur [2018] VCC 1709; DPP v Cotchin [2018] VCC 1894; Barry v The Queen [2021] VSCA 321, [27]; Hochkins v The Queen [2022] VSCA 91

Sentence:                  Convicted and sentenced to a community corrections order of 30 months’ duration

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms D. Caruso	Office of Public Prosecutions
For the Accused	Mr L. Slater	Slater and King Lawyers

HER HONOUR:

Plea and maximum penalties

1Chase Dickson, you have pleaded guilty to one charge of burglary (an offence which carries a maximum penalty of 10 years’ imprisonment), one charge of theft of firearm (maximum penalty of 15 years’ imprisonment), one charge of intentionally damaging property (maximum penalty of 10 years’ imprisonment), and one charge of possession of a trafficable quantity of firearms (1200 penalty units or 10 years’ imprisonment).

2You have also agreed to have uplifted, and pleaded guilty to, one summary charge of committing an indictable offence while on bail.  This is a rolled up charge which encompasses the burglary and theft of firearms which you committed while on bail.  The maximum penalty for that charge is 30 penalty units or three months’ imprisonment.

Factual basis

3On your plea, the prosecution tendered a Summary of Prosecution Opening dated 11 April 2023.  That document, accepted by you as accurate on your plea, forms part of this sentence; I will refer to the facts in a summary way here.

4Taylen Atar and his partner Rebecca Brown, and their children Kaylan and Tarkan live on a property about an hour’s drive from Shepparton.  There are two houses and a shed on the property.  Mr Atar and his family live in one house, and in the other lives the property manager, Damien Walls.

5The ‘front shed’ has inside it a separate room where Mr Atar keeps his 22 registered firearms.  That room is always locked.  There is a dead bolt on the door in addition to the normal locks.  There is also an alarm.  Within the gun room were two locked safes; one for firearms, one for ammunition.

6You knew the property manager Mr Walls as your mother had previously been in a relationship with him.  This had brought you to the property and you had socialised with Taylen Atar’s sons there and formed friendships with them.

7On the day of your offending, 3 November 2022, you drove to the property arriving at about 3 am; you parked outside the front gate.  You entered (without permission to do so) the open roller door of the shed.  You jemmied the ‘firearms room’ open, you broke the padlock on the safe with the firearms in it with a screwdriver.  You broke the keypad and sensor from the alarm.  (Charge 1, burglary)

8You chose seven firearms and started to make your way back to the car, but they became too heavy and you dropped them.  You went and got your car and returned to load the firearms into it.

9On the drive out, your car got bogged.  You took the guns out of your car, hid them in nearby scrub, and rang your mother.

10

Your brother Blaide came to help you, but when he arrived he got bogged too.  You then called Mr Atar for help; his son Kaylan came down in another car.  

By 5:20 am, Mr Walls had awoken and saw the scene.  He called Mr Atar who in turn called police.

11At some point during these events, you cut the wire to the fence near your car and collected the firearms and put them back into your car.  (Charge 2 criminal damage).  You called a towing company.  

12By 7:30 am, both the towing company and the police had arrived.

13When spoken to, you told police you were there to try and retrieve money you had buried on the property before visiting your ill grandmother in Melbourne.

14The cars were towed out and you drove away to a nearby regional town, by then with the seven firearms on board.  When you arrived, you wrapped them in a blanket and tape and hid them in the bush near a walking track.  It was not until the next day that Mr Walls discovered the scene at the shed and the missing firearms.  

15That evening, Mr Atar’s son tried to call you, but you did not take the call.  Soon after, though, on the same evening, you called Mr Atar admitted what you had done and you made an apology to him.  That night at 11:00 pm, you went to the Seymour police station with your mother and brother and handed yourself in.  In the boot of your car were the seven firearms, which you turned over to the police.  After being interviewed, the contents of which I will return to later in these reasons, you were remanded into custody.  You were 20 years old at the time.

16The details of the firearms you stole are:

(a)   ATA ARMS 686 S Sporter 12 Gauge shot gun – Category A firearm

(b)   Beretta S 686 Silver Pigeon 12 Gauge shot gun – Category A firearm

(c)   BRNO 22 Rimfire Rifle – Category A firearm

(d)   Crossman Arms Co Trail NP 177 Air Rifle – Category A firearm

(e)   Merlin 336 CS 30-30 Winchester rifle – Category B firearm

(f)    Rossi 122 410 Gauge Shotgun – Category A firearm

(g)   Winchester 9422 22 Rimfire Rifle – Category A firearm

17In all, there were three rifles, three shotguns and an air rifle; all of them ‘Category’ A, except for one category B firearm.  (This gives rise to Charges 3 and 4, theft of firearms, possession of a trafficable quantity of firearms)

18At the time of these events, you were on bail with the obligation to appear before a court on 2 December 2022.  You had been charged with an attempted theft and this gives rise to the summary offence of committing an indictable offence while on bail.

Arrest and interview

19During your interview with police at midnight on 5 November 2022, you made extensive admissions.  You told police where you had hidden the firearms over night (p124 depositions), and explained that you had stolen them in the shadow of threatening text messages you had received in the context of a debt.  You told police you had a general plan to sell the firearms, or to use them to protect your family, but you did not have a considered plan of sale.  

20You volunteered a lot of information to the police.  You describe, in one part of the interview, the call you made to Kaylen Atar, here at Question and Answer 98 of the interview:

'I said, 'I'm sorry.  Like, I love you.  I love your family. You've done nothin' but help me.  And I'm handing myself in and I'm handing 'em back.[…] Yeah, I was like, I hope you can forgive me, but - Yeah'.

21You went onto say to him that you deserve some kind of punishment and that you expected to go to gaol.

22I read the interview in its entirety and its contents are very significant for matters pleaded in mitigation.

Timeline of resolution

23You pleaded guilty to these charges at committal mention stage, an early plea, and I will return to this fact when dealing with matters in mitigation. 

Nature and Gravity of the Offending

24I have to consider the nature and gravity of your offending.  The theft of a firearm is a particularly grave species of the offence of theft.[1]  Such theft increases the likelihood that firearms circulate illegitimately in the community and become useful in seriously dangerous criminal activity.  Parliament has fixed a higher penalty for this category of theft for these reasons.[2] In the second reading speech, the Minister said:

'The new offence will carry a higher penalty than the offence of theft under section 74 of the Crimes Act, in recognition that Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2015 Second Reading can increase the illegitimate flow of firearms in the community and lead to very serious criminal activity'.[3]

[1]Benkic v  R [2019] VSCA 34 [18]; Barry v R [2022] VSCA 9 [16].

[2]Barry v R [2022] VSCA 9 [16].

[3]Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2015 - Second Reading, 19 August 2015, 2759.

25I access the objective gravity of your offending, informed by the following matters:

(a)   You took a total of seven dangerous firearms;

(b)   You then left them, one loaded, in a public place overnight;

(c)   Your theft was also a breach of trust of a family friendship against people who, according to you, had only ever shown you kindness and friendship;

(d)   The theft was clearly unsophisticated in its execution (something of an understatement);

(e)   Was not otherwise linked to criminal activity;

(f)    You did not simultaneously steal ammunition, although you did later discover that one of the weapons was loaded;

(g)   No firearms were ultimately put into circulation into the community as a result of what you did;

(h)   You assisted with their recovery and return to their owner.  

26It is perfectly clear that I am obliged to regard the theft of a firearm as more dangerous, and therefore deserving of a higher penalty, than a less dangerous item (certainly by reference to the higher maximum penalty that has been ascribed), and you took seven, more than you could carry.  That said, by reference to the considerations I have already set out, I regard your offending as sitting in the lower end of offence of its category.

27More subjectively, my assessment of your moral culpability is informed by your account of being in debt and under pressure from others who, at least you believed to be, capable of harming you and members of your family.

Prior History

28You come before the court aged 20 years’ old with no prior history and you are a person of good character.

Victim Impact

29Turning now to my consideration of impact on your victims.  No victim impact statements were tendered, but I sentence you, on the safe assumption that your victims were at least inconvenienced and disturbed by your damage of their premises and bruised by the breach of trust that you, a former guest on the property, and friend of the family had demonstrated.  I take this into account on sentence.  I understand that the firearms were returned to them.

Personal history

30You are an Aboriginal man on your mother’s side, the Ben Lomond mob from Tasmania.  You have three brothers and a sister.  Your parents are Kerry Dickson and Jack Dickson; Jack passed away by suicide when you were only eight years’ old.

31You spent your early years in Wallan, though your family moved to Seymour.  Your early childhood was marked by your parents’ drug addictions and family violence. Your father was involved in organised criminal activity, a feature of your lives that one of your brothers now reflects on as having led your family to having ‘developed unsavoury views about the world’, in his words, such as the belief that causing suffering to others was justified if it benefited you.

32After your father’s passing, you were removed from your mother’s care for 12 months by child protection authorities; your mother had her own issues that she needed to address at this time.

33You describe not fitting in at school; you felt that your difficulties with learning were misunderstood and you left high school early.

34Later, under the guidance of your elder brother Jamin, you demonstrated an unusually strong capacity at metalwork, welding, and the use of advanced trade tools and while these skills, for a time made you an attractive employee, your ‘immaturity and disrespect for authority’ (your brother Jay’s words not mine) apparently caused you to sabotage these opportunities early on.

35You became disaffected, commenced drug use and involvement with criminal enterprises, I infer serious ones; threats of violence that emerged from these associations were operating on you prior to the commission of these offences.

36By 18, you were using methamphetamine.

37You are currently employed at an engineering firm in a regional centre, and your employer provided a work reference.  You started there this year in February 2023. You got this job by walking in and asking for a week’s unpaid trial.  You were offered a job after three days, and have already been promoted to a supervisory role.  Your employer is currently providing you training to ‘up-skill’ you for a broader range of roles at work – ‘rigging and dogging’ is next.

38You live with your brother Jamin and his family in a regional city in Victoria.  

Matters in mitigation

Plea of guilty

39Your plea of guilty was an early one, and can be traced back to your unequivocal admissions in the days following your offending.  Your plea indicates that you are genuinely sorry for what you did, and saves the community the costs, human and financial, of having a trial.  It means the resources of investigation and prosecution can now be reallocated.  Witnesses, particularly those who have shown you loyalty and kindness in the past do not have to endure the stress and embarrassment of giving evidence against you in court.  These are very significant matters in mitigation of your sentence, and more so, at this time in the wake of the delays caused by measures to address the pandemic.

Previous good character

40As I have already said, you come before the court with no prior convictions, as a person, a young person at that, but of previously good character.  This is an important feature of this sentence - and despite your early hardships you have not been dealt with previously .

Youth

41You are also a young person and I apply the principles relevant to your youth:  I accept that, in your state of fear and immaturity, you were less able to reason your way out of the situation you had bound yourself into.  I bear in mind the principles in the case of R v Mills[4] and I also accept that your immaturity made you less able to appreciate the potential consequences of what you did – to you, these were items of value to be exploited, and you failed to appreciate fully the potential harm to the community of their circulation.

[4] [1998] 4 VR 235.

Admissions and the facilitation of justice

42You gave the police detailed information about what you had done, including stating that while you normally had permission to enter the property, such permission was not operating at 3:00 am that day.

43Your assistance in retrieving the firearms is also very important – such assistance described in the case of Barry v The Queen as of ‘critical relevance’ in sentencing.[5]

[5] [2022] VSCA 94 [15].

44Your remorse is patent throughout the record of interview, particularly in terms of what you have said to one of the Atar boys over the phone.

Remorse

45You have consistently expressed remorse to Mr Atar, to his son, and to the police.  A recurrent theme is your shame at your betrayal of a fond and supportive friendship that you had with Mr Atar’s sons.  I find that you are remorseful and this lowers the need for community protection and specific deterrence in your case.

Time in custody

46You spent four days, your first, in custody, between the cells in Seymour and Shepparton.  I infer that this time would have been a shock to you and I expect sobering in a range of ways.

Mental health

47You have a range of mental health problems, set out most usefully in the Mental Health Advice and Response Service report – no particular Verdins[6] submissions were advanced, however, your mental health problems form more generally, the portrait of your circumstances and I take that into account.  It is also a relevant matter to be considered in terms of the form of this disposition.

[6] R v Verdins (2007) 171 A Crim R 227.

Prospects for rehabilitation

48Since these events, you have found a supportive home with your brother Jamin and his family, and according to your other brother’s reference, you have thrived under these circumstances.

49Further, you clearly have an unusually powerful capacity to work with your hands in applied ways – this was noted by both your brother and your employer, who you impressed within days, and it seems you are no longer inclined to self-sabotage in the workplace.  You have an ambition for further study.  

50Perhaps most importantly though, you are surrounded by an intelligent and committed family who, from the day of your offending, and despite their own early difficult circumstances, have clearly given you wise advice, practical support, and a stable home.  Your brother Jay’s reference displays the intelligent and insightful help you have had from your family, their integrity and commitment to you is noted here.  Without their wise counsel and support, I suspect that today’s sentence would be concluding quite differently.

51I find that your prospects for rehabilitation are excellent.

Current sentencing practices

52I have had regard to a range of other sentences for similar conduct before arriving at your sentence, those sentences both in this court and in the Court of Appeal;[7] no case is much like yours and I am obliged to do individual justice.  But I sentence you in that landscape.

[7] DPP v Clark [2018] VCC 583; DPP v Spur [2018] VCC 1709; DPP v Cotchin [2018] VCC 1894; Benkic v R [2019] VSCA 34; Barry v The Queen [2021] VSCA 321 [27]; Hochkins v The Queen [2022] VSCA 91.

Sentencing principles

53I must refer to the sentencing principles to be engaged in your case.  Just punishment, and general deterrence are significant matters in this sentence.  This sentence, and your experience of it, must make you less likely to offend in this way again, though your remorse reduces the need for specific deterrence in your case. I find that community protection will best be served by your rehabilitation, through this sentence, your offending conduct, chaotic and unsophisticated though it was, is denounced.  The community expects people who bring or attempt to bring illegitimate firearms into circulation will be punished severely.

54You need to understand Mr Dickson, that this sentence will be punitive and inconvenient and restrictive.  That is the point.  The alternative is one of a sentence of imprisonment.

Double punishment

55In arriving at your sentence, I have considered the need for you not to be ‘doubly punished’ where the offences have some significant overlap, noting that the criminal damage offence is of a minor nature and undertaken essentially to commit the charge of theft, and the possession of the firearms was a necessary element of the charge of theft, though, by reference to the duration of the possession, not entirely subsumed within it.  I bear in mind the need not to doubly punish you.

Sentencing submissions

56In submissions to the court, your barrister argued that a community corrections disposition was appropriate by reference in particular to your youth, and your prospects of rehabilitation and your admissions.

57The prosecutor, on behalf of the director, submitted that while theft of firearms on this scale would normally result in a sentence of imprisonment to be served immediately, by reference to the legislation and to sentencing practice, the need for general and specific deterrence and for community protection, the very unusual features of this case brought a community based disposition within the range available to the court.

Consideration

58Certainly, imprisonment would normally flow for the theft of seven firearms.  Had your case not been attended by the constellation of very particular features that I have already described, I would have had no hesitation in imposing a term of imprisonment, and a significant one, to be served immediately.

59I have had regard to the contents of s 36(2) of the Sentencing Act 1991 (Vic) which refers to previously suspended sentences and which enlivens jurisdiction in this case, I conclude that a community corrections order is an appropriate sentence.

'Without limiting when a community correction order may be imposed, it may be an appropriate sentence where, before the ability of the court to impose a suspended sentence was abolished, the court may have imposed a sentence of imprisonment and then suspended in whole that sentence of imprisonment'.[8]

[8] Sentencing Act 1991 (Vic) s 36 (‘Sentencing Act’).

60In your particular case, by reference to your youth, and the features moderating the gravity of your offending, but particularly by the way you conducted yourself after what you did, I conclude that the most appropriate disposition is one that involves your punishment and rehabilitation while still in the community.

Disposition

61On Charges 1 to 4 and on the related summary offence of committing an indictable offence while on bail, on each charge, you are convicted and sentenced to a community corrections order of 30 months’ duration, with a requirement to complete 100 hours of unpaid community work.  I make the same corrections order in relation to each offence.

Community Corrections Order:

62I am now going to read you the conditions of the community corrections order.  When I have done that, I am going to give you a chance to speak to Mr Slater, who is going to give you some advice about what happens next because I am going to ask you whether you consent to the making of the order.  I consider this to be an important moment in this hearing because you have legal advice and you will have a moment to consider the disposition and when you make that commitment, I can refer to that later, if you do not fulfil your commitment.

63You will be first subject to the standard conditions of a community corrections order.  That means, importantly, that you must not commit any other offences that are punishable by imprisonment during the 30 month period.  Let me be clear, if you do, you get brought back to court before me and you would expect that absent very powerful reasons, a further sentence must be imposed and it would be very, very likely to be immediate imprisonment.

64You must report to the Community Corrections Service in the city where you live within two days of today by telephone or in person.

65You are required to advise your supervisor in the Corrections Office of any change of address where you are living or working and you must do so within two clear working days.

66It is a term of all community corrections orders that you must submit to visits as directed and obey all of the instructions and directions of a Community Corrections Officer.  You are not able to leave the State of Victoria without their prior permission.  That is for the entire 30 months.

Special conditions

67I will attach the following special conditions.

68You are required to submit to assessment and treatment for alcohol and drug dependence. 

69You are required to submit to mental health assessment and treatment.

70I require you to perform 100 hours of unpaid community work over the term of this order, but pursuant to s 48CA of the Sentencing Act, I direct that time spent in treatment and rehabilitation programs can be credited towards those hours.  So you are required to do unpaid work.  I have moderated the number of hours by reference to the fact that you are in fulltime employment and that that is an important aspect of your rehabilitation.  Where you are attending for treatment and participation in programs, or whatever it is that you are directed to do, that will clock up the hours.

71I also require you to participate in judicial monitoring.  I note that this condition was not recommended, but I do want to see you in court at least once during your order. This can be done via video link.  So Mr Dickson, I get a report about how you are going on the order and you appear by video link before me at court and I have a word with you about the progress on your order.  Mr Slater, are the terms of the order clear?  What I will do is allow you to have a conversation now with Mr Dickson, see if he will consent - - -

72MR SLATER:  Thank you, Your Honour.  Your Honour, can I just confirm, 48CA is all of the hours that could be attributable - - -

73HER HONOUR:  I am not going to make - I am not going to say how many hours, I am saying when your client's in treatment and rehabilitation, those hours count.

74MR SLATER:  Thank you.

75HER HONOUR:  Otherwise he will have to undertake some unpaid community work as well I would think.

76MR SLATER:  Of course.

77HER HONOUR:  Yes.  Do you want to have a word to Mr Dickson now?

78MR SLATER:  Yes thank you, Your Honour.

79HER HONOUR:  All right.

80MR SLATER:  Thank you, Your Honour, he consents to the order.

81

HER HONOUR: All right, good. There will be some - I will send down now a copy of the order for your client to sign. While that is happening, I indicate that pursuant to s6AAA of the Sentencing Act, I indicate that had you not pleaded guilty, but been found guilty, I would have imposed a sentence of 30 months with a

non-parole period of 16 months.  I note, but do not declare as part of this sentence, four days pre-sentence detention.