Director of Public Prosecutions v Doherty
[2016] VCC 1359
•13 September 2016
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCase No. CR-16-00252
CR-16-00253
CR-16-00254
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| VICKY DOHERTY BRAD FLYNN JOHN MAUGERI |
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| JUDGE: | HIS HONOUR JUDGE MCINERNEY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 26 August 2016 |
| DATE OF SENTENCE: | 13 September 2016 |
| CASE MAY BE CITED AS: | DPP v Doherty & Ors |
| MEDIUM NEUTRAL CITATION: | [2016] VCC 1359 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Sentence – Make counterfeit money – Possess counterfeit money
Legislation Cited: Crimes (Currency) Act 1981 (Cth), Crimes Act 1914 (Cth), Crimes Act 1958 (Vic), Sentencing Act 1991 (Vic), Firearms Act 1996 (Vic)
Cases Cited:R v George Joseph Makin [1995] VSC 118, R v Institoris [2002] NSWCCA 8, Krol v R [2011] NSWCCA 175
Sentence: Doherty – Convicted and ordered to serve a CCO of 3 years
Flynn – Convicted and sentenced to a person of imprisonment of 4 years with a non-parole period of 2 years and 6 months
Maugeri – Convicted and sentenced to a person of imprisonment of 4 years with a non-parole period of 2 years and 6 months
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms L Stevenson (Sentence) | Solicitor for the Office of Public Prosecitions |
| For Accused Doherty | Ms K Argiropoulos | Galbally & O’Bryan |
| For Accused Flynn | Ms Jo Swiney (Plea) Mr R Martini (Sentence) | Rainer Martini & Associates |
| For Accused Maugeri | Mr A Halphen (Plea) Mr N Brown (Sentence) | Paul Vale Criminal Law |
HIS HONOUR:
1Mr Flynn is 38 having been born on the 7th day of July 1978. He is a plasterer by occupation and pleaded guilty to five charges and three summary offences, which were brought before the Court.
2The five charges are in Indictment No. F11806174. That plea by Mr Flynn was made on 8 August 2016 and the matter was adjourned until the plea was finally held on 26 August. In all of these matters, Ms MacDougall appeared for the DPP, Ms Swiney for Mr Flynn and insofar as Mr Maugeri, Mr Halphen appeared at the plea and Mr Brown appears today.
3The matters insofar as Mr Flynn were concerned, firstly a charge under the Crimes (Currency) Act 1981 (Cth), the charge of manufacture counterfeit currency, for which the maximum penalty prescribed under s.6 of that Act is a period of 14 years imprisonment. There were then three charges of theft under s.71(1) of the Crimes Act 1958 (Vic), two that involved cars and one that involved petrol. The maximum penalty prescribed by Parliament for each of those offences of theft is one of ten years. Finally, there was the firearms charge, a charge of being in possession of a pistol, a breach of s.5(1) of the Firearms Act 1996 (Vic) for which also a maximum penalty of ten years prevails.
4Insofar as Mr Maugeri was concerned, he, as the co-accused with Mr Flynn, pleaded guilty on 26 August 2016 to a manufacture counterfeit money charge under the Crimes (Currency) Act 1981 (Cth).
5Mr Maugeri is a plasterer and was born on 20 January 1970. He is 46 years of age. The charge as I said that he pleaded guilty to under the Act is one charge of manufacture counterfeit money and the Indictment to which he pleaded was the Indictment No. F11806414.
6Insofar as the Commonwealth charge relevant to both Mr Flynn and Mr Maugeri, that is the counterfeit currency charge, the prosecution tendered a summary in regard to such matter, Exhibit A, and such was accepted by both counsel as the facts upon which I am to sentence. The parties were found at the Burvale Hotel. There were 516 notes found, counterfeit $50 notes, 112 of those were without windows. There were 20 found in the rubbish and there were 1,796 notes in total seized. Their value put to the Court was a figure of $89,800 which essentially is the face value of the notes.
7The prosecution put that the standard of manufacture was, to use the words of the prosecutor, based on what is called a “McDonalds test”, eight out of 10. I was, I must say, somewhat surprised that there was no better evidence before the Court in regard to that, and as such I arranged, with consent of counsel, for the counterfeit notes to be produced to me. As I say, the estimate insofar as their standard of manufacture was given by the informant in the body of the Court. No expert evidence was called. In those circumstances, as best I can do, I examined the notes. It seemed to me insofar as Mr Maugeri and Mr Flynn were concerned that the standard put, of eight out of 10, was appropriate. Clearly the ones which had no window in could not yet be passed but if they were ultimately manufactured to the same standard, I did not see any reason why they would not pass, based upon my own observation, in the community and clearly on the basis as I understand the “McDonalds test,” not that they were going to be passed in a bank with experts who are used to both the look and feel of notes, but would be passed over in a McDonalds type franchise operation.
8This morning, Ms Argiropoulos put to me there was also an issue as to feel. I must say in feeling the notes after I was advised of that comment, during the view which counsel subsequently had, I did not notice any necessary feel, but there you are. As I say I am no expert in these matters.
9Insofar as Mr Flynn's additional charges in his Indictment, Ms Swiney accepted the facts as detailed in Exhibit A in Mr Flynn's plea and the matters set out in the prosecution opening insofar as each of those charges are concerned are the facts upon which I am to sentence Mr Flynn. The first charge involved the theft of a car. That occurred on 15 February 2015. The car involved was a Range Rover, the value of which was $30,000. As I indicated for each of these first three offences, the maximum penalty prescribed by Parliament for theft is a term of imprisonment of ten years. The second charge occurred on 18 May 2015 and it involved the theft of petrol from a service station. The sum involved was $90.78. The third charge involved the theft on 19 May 2015 of a Prado that is a Prado motor car valued at $40,000. The fourth charge is the Commonwealth matter to which I have already referred and the fifth charge took place when a warrant was executed upon Mr Flynn's rented home on 22 May 2015 when a pen pistol was found.
10Insofar as Mr Flynn is concerned, he has a considerable criminal history, albeit fortuitously he has not spent a long time in gaol. I point out to both Mr Flynn and Mr Maugeri that you do not come to be sentenced again in regard to your prior matters. However, the importance of priors and why they are put to a Court, is such sometimes restrict the options that a Court has open to it.
11The background seems to indicate certainly Mr Flynn that you have been blighted unfortunately by the impact of drugs and the charges that you have been convicted of reflect that. There are drug matters, there are dishonesty matters and there are issues with cars. More importantly, there is, insofar as the matters that I am to deal with, that is the summary matters, you have previously been convicted of driving while disqualified on at least four occasions. On one of those occasions in December 2014, in connection with a number of other charges in particular possession of a prohibited weapon, you were given a suspended sentence and that is the gaol sentence that I referred to. You were sentenced to a period of gaol of eight months, of which five months was suspended.
12You have also in addition in your priors two previous possess firearms charges, four charges of fraudulent use of a registration label, three prior offences for theft of a motor vehicle and six prior offences for possess prohibited weapon. You previously, for prohibited weapon charges in addition to that suspended sentence in 2013, received a community based order. Why you received that after you had earlier received two suspended sentences, one in 2009 and one in 2010 for weapons possession charges, I do not know. Maybe there was something particular about those circumstances.
13Insofar as Mr Maugeri is concerned, his prior is a relevant prior. There is no summary available, however I am told that the offence in April of 2015 of 2 charges of manufacture counterfeit money, for which you received a fine, was apparently in similar criminal conduct to Charge 4. In addition to that, you were convicted of prohibited person possess firearm, drive while disqualified, and also a handgun charge in 2005. Clearly none of those offences are of the dimension of the crimes that I am dealing with today, in particular the Commonwealth charge.
14Insofar as the manufacture of counterfeit money was concerned, the learned prosecutor put to me that the manufacturing process could be described as sophisticated. I perhaps would have some doubts as to this being a sophisticated process, given where it was conducted and the type of materials and processes and programs used. However the fact is however you describe it, as I assess it, what was produced and potentially produced was a good product. Insofar as Exhibit B is concerned, I have already noted the concerns as to the ultimate impact on the community and I do not take that into account. That is the matters that Mr Martini referred to in the last paragraph. However I note the comments which would be demonstrated in this case, that because of the availability, free availability, of excellent printers that the person who signed that document indeed on behalf of the Reserve Bank are referring to such products being produced in the community.
15Insofar as the plea conducted by Mr Halphen on behalf of Mr Maugeri, there was no submission and no argument with the fact that the offence was of such seriousness that the appropriateness of a gaol term was conceded.
16Insofar as the submission for Mr Maugeri was concerned, there were a number of propositions put to me that I did not accept from Mr Halphen. Firstly, it was put that Mr Maugeri was simply at the Burvale Hotel to discuss the rent of the premises that had been recently rented to Mr Flynn. Nor, it was put, was he very much involved in the manufacture and had indeed a very limited role, I rejected both of those propositions. The clearest example of the involvement, and extent of involvement, of Mr Maugeri is the evidence of the DNA found on the very rubber gloves that had been used in the manufacture of such notes.
17From the circumstances, I cannot be certain precisely between Mr Maugeri and Mr Flynn what their particular role was, and given that uncertainty, the law indicates that I must sentence both upon the basis of their plea of guilty to this charge.
18Mr Halphen referred me to a number of similar cases for the assistance of the Court; R v George Joseph Makin [1995] VSC 118, R v Institoris [2002] NSWCCA 8 and Krol v R [2011] NSWCCA 175. As to the operation he submitted that whatever the technology used, it was not advanced. He further submitted that it was important to understand in this matter that all of the product produced had been seized and the maximum yield, as put to the Court, was a figure of $90,000.
19Insofar as the background circumstances, Paragraph A set out essentially Mr Maugeri’s background, he is indeed a skilled plasterer, there is a job available to him. He lives at home with his parents. His issues as to custody were put, he has had a difficult issue with custody, has been in custody for some 15 months now. Madam Prosecutor, I suppose we should clarify those dates. That is the only thing I did not do.
20MS STEVENSON: Yes, Your Honour.
21HIS HONOUR: What is the period now for Mr Maugeri?
22MS STEVENSON: My calculation is 483 days including today.
23HIS HONOUR: Is that accepted?
24MR BROWN: I believe it's 483, not ‑ ‑ ‑
25HIS HONOUR: All right, perhaps you can check that. What is the position with Mr Flynn?
26MS STEVENSON: 403 including today.
27MR MARTIN: 303.
28HIS HONOUR: 303.
29MR MARTIN: Yes, Your Honour.
30HIS HONOUR: Yes, and as I said insofar as the circumstances, he has had the difficulty during that time of lock downs, in particular during that time, he has sought to utilise his time both by way of employment and undertaking the various courses, certificates for which were detailed in Exhibit 3, which I take into account.
31Mr Halphen referred me to the relevant sentencing provisions in s.16A of the Crimes Act 1914 (Cth) and, bearing in mind the time that Mr Maugeri had served in gaol, submitted that an appropriate sentence would be a recognisance release order combined with a period of gaol, which he submitted in the circumstances may well be very close to effecting an immediate release.
32Insofar as the prosecution's response to such submission, the submission was that a period of gaol with a recognisance release order was a within range. However, insofar as he was concerned, that is Mr Maugeri, the prosecution pointed to the proximate prior offence, which is clearly a matter that must be taken into account.
33Insofar as Mr Flynn was concerned, Ms Swiney tendered, Exhibit 1 in the Flynn matter, her submissions. As I said earlier, there is no doubt that this was an early plea. He is now 38 and has unfortunately been afflicted by ice for many, many years. He still has his parents' support. There is a future for him, but his future whether at work or personally, depends clearly on him being able to permanently give up drugs. It is not as evident as to whether Mr Maugeri is so affected, but certainly Mr Flynn will have no future, either with his family or in the community, unless he finally gives up drugs.
34Mr Flynn has been in gaol now for a period I think of approximately 16 months, it might be 17 months now. There are other matters that he has been in gaol for. They concern thefts, disqualification matters. He has had issues in gaol with drugs. As a result of being found with drugs in gaol, his family were denied visits. It was put the Court however, that for at least the last 12 months, he has been free of drugs. One hopes that is so.
35Again, it was put that insofar as this matter is concerned, I should consider a recognisance release order. Again, the Crown put that such an order was within range. I was taken to the letter from Mr Flynn tendered as Exhibit 2. It is quite clear that for many, many years, as set out by him, he has been afflicted by ice. He confirms in his letter the time, albeit in that letter, saying he has had eight months drug free, and one hopes that that can continue.
36I have given consideration to all those matters put, but at the same time, those personal factors and subjective factors have to be taken into account with the seriousness of this charge, the maximum penalty prescribed by Parliament and indeed all of the factors that are set out in s.16A of the Crimes Act 1914 (Cth). Having considered all those matters and the propositions put, despite the view of the Crown that a recognisance release order for both Mr Maugeri and Mr Flynn would be appropriate, I have come to the view that the seriousness of this Commonwealth crime, in regard to both of them, is such that I do not consider that the period of imprisonment that could be imposed in regard to a recognisance release order would be appropriate to the circumstances of this case, given the requirement for a sentence which reflects the seriousness of the offending. Would you gentlemen stand please.
37Firstly Mr Maugeri, in regard to the matter that you are to be sentenced on, a single charge, you will be sentenced to a period of imprisonment of four years and I order pursuant to s.19A(b) that the period you must serve prior to being eligible for parole is a period of two and a half years. I order pursuant to s.18 of the Sentencing Act 1991 (Vic) that the period that you have served to date being a period of 484 days including today, be deemed as service of that sentence and a declaration to that effect be recorded in the records of this Court. I have already signed a forfeiture order. You can take a seat Mr Maugeri. I will come back to you when I talk about s.6AAA of the Sentencing Act 1991 (Vic).
38Coming then to Mr Flynn, insofar as Charge 4 is concerned, that is the Commonwealth matter, you will equally be sentenced to a period of imprisonment of four years with a minimum term to serve of two and a half years imprisonment, which I set as the non-parole period which you are to serve pursuant to the provisions of s.19A(b). Insofar as Charge 1 is concerned, that is the first charge of theft of a car, you will be sentenced to a period of imprisonment of 12 months. In regard to the petrol, Charge 2, a period of imprisonment of four months, in regard to the car, Charge 3, a period of imprisonment of 12 months and in regard to the possession of the pistol, Charge 5, a period of imprisonment of 16 months.
39In regard to the summary matters, Charge 7, a period of imprisonment of six months, Charge 10, a period of imprisonment of six months and Charge 15, a period of imprisonment of four months.
40Being a Commonwealth and State sentence, the Commonwealth sentence will start today. Insofar as Charge 1, that is the first of the State sentences, I order that that sentence begin on the 13th day of May 2018, which will add an extra two months to the minimum period to serve. In regard to Charge 2, I order that that sentence will begin on the 13th day of July 2018, which will add no further time to your period of imprisonment. In regard to Charge 3, I order that that also start on the 13th day of July 2018, which will add another two months to your period of imprisonment. In regard to Charge 5, I order that that begin on the 13th day of June 2018 which will add another three months to your period of imprisonment.
41The effect of such orders is that on top of the non-parole period of two and a half years to be served for the Commonwealth offence, you will have to serve a straight seven months. So the way I have structured this, for you, the major sentence is four years with a minimum of two and a half. The sentences in regard to the State matters are a straight seven months accumulation upon that sentence. So that insofar as the State matters are concerned, I have cumulated two months in regard to Charge 1, two months in regard to Charge 3 and three months in regard to Charge 5 making a total of seven months. I do not make any minimum order in regard to those matters. So that the end result of that is, providing you are released without any hitches in regard to the two and a half years, you will then serve a straight seven months on the State offences. I do not cumulate in any way the sentences I have imposed in regard to the summary matters.
42As to pre-sentence detention, I declare pursuant to s.18 of the Sentencing Act 1991 (Vic) that the 303 days that you have served to date be deemed as service of this sentence and a declaration to that effect be recorded in the records of this Court.
43Insofar as the requirements, which are accepted as being applicable to the Commonwealth legislation, of s.6AAA of the Sentencing Act 1991 (Vic), I declare in regard to both of you, that is Mr Maugeri and in regard to Mr Flynn, and it is important for you to understand that had you not pleaded guilty to the manufacture charge, the sentence that I would have imposed would not have been for each of you, four years with a minimum of two and a half before you can be paroled but a period of five and a half years with a minimum of two years and 10 months.
44Mr Flynn, had you not pleaded guilty in regard to your two charges of theft of a car, the period I would have imposed upon you on each of them would have been 12 months, not 18 months. Despite the requirements of Parliament, I cannot comply any further with the provisions of s.6AAA of the Sentencing Act 1991 (Vic).
45Insofar as Mr Maugeri is concerned, I have signed a forfeiture order. Insofar as Mr Flynn is concerned, I have signed two forfeiture orders, one in regard to the notes and one in regard to the pistol and I have signed a further disposal order in regard to the plates. I think that finalises both of those gentlemen's' sentences. Any questions in regard to those matters.
46MS STEVENSON: Your Honour, an order in regards to licence for Flynn.
47HIS HONOUR: That was under the section ‑ ‑ ‑
48MS STEVENSON: 89(4).
49HIS HONOUR: Yes, which requires me - is there an existing licence, do you know? There probably is not.
50MS STEVENSON: No.
51HIS HONOUR: Yes, I will cancel an order that no further licence be - and suspend his ability to obtain a further licence for a period of two years. Any other matters?
52Gentlemen, particularly you Mr Flynn, as I have said, if you are going to have a future, you have just got to change your lifestyle. Because otherwise - you have now committed a more serious offence but you have had a history of them and unfortunately, you are going to be subject, if you do not get off drugs, to more and more gaol. It is just not a good future to look forward to. Anyway, doing as best we can, and I hope the letters you gave me proves to be true, and I hope that you do overcome it and I wish you well on that task, which the Court understands is not easy. Yes gentlemen, you can take both prisoners away. I will excuse counsel.
53MR MARTIN: As Your Honour pleases.
54HIS HONOUR: Coming to Ms Doherty, as I have said for whom Ms Argiropoulos appeared, Ms Doherty pleaded guilty to one charge under s.91 of the Crimes Currency Act 1981, that is a charge of possess counterfeit money. Such charge was set out in Indictment No. F11806516 and took place on 9 April 2015.
55Ms Doherty at the time was 41, she is now 43, having been born on 12 May 1973. The items that she was found in possession of were five counterfeit $100 notes. As I said, I accept the proposition put to me that the standard of such notes was of a standard of seven out of 10.
56The sentence prescribed for this serious crime is a maximum period of imprisonment of 10 years. The only priors you have are findings of guilty. In each of those matters, there was no convictions recorded, although they do indicate your issues in the sense of both findings of guilty in regard to possession in one instance, possession and use amphetamines and possession of GBH.
57Exhibit A was the summary in this matter, which was tendered as representing the facts upon which I am to sentence. You, as I said, were found on a routine search allegedly at 3.52 am in Dorset Road Boronia with these counterfeit notes. The proposition put to me was that you were not aware of them, a proposition which I did not accept especially in light of the initial comments you made to the police. Indeed it seemed to me that the proposition being put by you, by your counsel, was facile.
58Insofar as the submissions (Exhibit 1) concerned, it was put to me your personal circumstances and the difficulties that you have encountered, although I think it must be said that we are a long way away from those difficulties. The issues that have come before the Court it was put, have a lot to do with your relationship with Mr Flynn and the fact of your drug use. There can be no doubt about that. You have only spent the one night in gaol, that hopefully would have been sufficient to indicate to you the dangers in your life. Tendered on your behalf were two reports from the Salvation Army. The initial one referred to the steps taken in your regard, but did speak of your ongoing difficulties with drugs. It is clear, albeit that you now suggest that you have not been involved, that for you to rid yourself of drugs, is not going to be easy. You have got the assistance of your family of being in Court and supporting you. You have significant references set out in Exhibit 4. It was noted in the plea material that you pleaded guilty at the first opportunity. As is already said, you have limited priors. A community correction order was put as the appropriate sentence despite the seriousness of this matter and the Crown submitted that such was an appropriate sentence in all the circumstances of this case.
59It is clear however that whatever sentence you are given, your future firstly means that you cannot be involved, it is suggested that you are no longer involved, by Mr Flynn, I hope that is right. Unfortunately you have been somewhat unlucky in your relationships, but if you are going to enjoy your family and you are going to honour the support your family have continued to give you, then you must give up drugs.
60I note your further offending that was pointed out appropriately to this Court, and I note that you are on a community correction order which was imposed by the Dandenong Court albeit that the offending was not a prior matter in this case. However again, the offending of which you were convicted in this matter bespeaks of your difficulties again being theft and drug offences.
61As I said in regard to your role, I rejected the propositions put. It seemed to me totally improbable what was being put and despite the invitation to give evidence, you did not pursue such. As I say, both Exhibits 1 and 2 show the problems. You have children to support and look after and it seems to me that you can be doing a lot better in your life than being involved with drugs. Despite the seriousness of this matter, as I said, I arranged for an assessment to be made and I do not think we have formally tendered that, have we, in your case? That should be now Exhibit C and that is the community correction order assessment report, which was prepared for the Court by Richard Temple-Camp, whom I thank and is dated 26 August 2016.
62#EXHIBIT C - Community correction order assessment report dated 26/08/16.
63Given your age and your relatively minor criminal background, the positivity of that report, the support that you have in the community, despite the seriousness of these matters which would otherwise impel a sentence of immediate gaol, I am prepared in the circumstances to impose a community correction order.
64The important thing about that order is for you to be supervised and for you to get treatment to overcome your drug addiction. Ms Doherty before you consent to enter into this order, I want to tell you this and tell you this very firmly. You come back here and you breach this order, you know what is going to happen, all right. You are very lucky not to be gaoled today for this serious offence. You come back here, having breached this community correction order and you know where you are going, all right. There will be no second chance for you. You are at a very important part in your life. You mess up again now and all the support you have had from your family just goes out the door. So do not come back here because you may as well not bring counsel because your path will be very clear. You are escaping here immediate gaol which is the normal sentence for these matters only because of your background and my perception that against what you put to me, that you clearly knew what you were doing and you were doing unfortunately what your boyfriend was doing and that is why you came to have this money. As I say, that is only my perception. I do not sentence you on that basis but you have been given an opportunity, do not blow it.
65The period of the community correction order that I will impose is a period of three years. I am not going to make a work provision in regard to that because that already applies in the other one but the important thing that I will impose is supervision by the Department and an undertaking of appropriate drug rehabilitation. Your client consents to that?
66MS ARGIROPOULOS: Yes, she does, Your Honour.
67HIS HONOUR: All the best, you have got a lot of people supporting you.
68MS STEVENSON: Your Honour, there was also an application for a 464ZF order.
69HIS HONOUR: Yes, that matter was formerly opposed. I do not know whether it is appropriate. It is normally a matter for the Court but given the subsequent offences and the drug problem, I have decided to sign such an order. It seems to me there is, if unfortunately Ms Doherty does not get off drugs, then there is a very big risk of recidivism and in those circumstances, a forensic sample order is appropriate and I have so signed such an order.
70MS STEVENSON: As Your Honour pleases.
71HIS HONOUR: I hope we will never have a need to use it.
72MS STEVENSON: There was also that forfeiture order for the notes that ‑ ‑ ‑
73HIS HONOUR: Yes, I have signed that, haven't I? Did I sign that, yes.
74MS STEVENSON: Thank you, Your Honour.
75HIS HONOUR: Thank you to counsel.
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