Director of Public Prosecutions v Donnelly

[2019] VCC 152

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

AT GEELONG
CRIMINAL JURISDICTION

CR 18-00137
CR 18-00138
CR 18-00111

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOHN DONNELLY
STEVEN SCOTT
LAURA FENTON

---

JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Geelong
DATE OF HEARING:
DATE OF SENTENCE:	15 February 2019
CASE MAY BE CITED AS:	DPP v Donnelly
MEDIUM NEUTRAL CITATION:	[2019] VCC 152

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr R. Pickering
For Offender Donnelly	Ms C. Saldana
For Offender Scott	Ms S. Mawby
For Offender Fenton	Ms K. Farrell

HIS HONOUR:

1John Donnelly, from around May of 2016 until your arrest on 9 February 2017 you operated and organised a criminal rucket involving the theft of valuable boats and caravans, which you then sold to unsuspecting members of the public, having falsely changed the ownership records with VicRoads.

2Your crimes of this kind also extended to other miscellaneous pieces of equipment such as ride-on mowers - expensive ones - hay balers and other farm equipment.

3In the scheme involving stealing boats and caravans you used your then girlfriend and co-accused, Laura Fenton, and another co-accused, Steven Scott, to assist you in the defrauding of VicRoads so as to enable you to falsely claim ownership or agency of the boats and caravans in order to sell them.

4I will shortly outline the extent of this organised criminality.  First I need to point out that your crimes, Mr Donnelly, in this period, were not limited to this stolen boat and caravan rachet.  You also stole very expensive cars and possessed firearms, notwithstanding that you are a prohibited person.  You handled significant amounts of stolen goods, dealt with the proceeds of crime, possessed drugs and identifications, and, concerningly, you drove dangerously while being pursued by the police.

5Before the timeframe I have outlined from May 2016 - at an earlier point in March of 2016 - you burgled an industrial site and business, stealing expensive powered parachutes, related equipment and a ride-on mower.

6In all you pleaded guilty to 69 charges on an indictment and six summary charges.

7Ms Fenton, you have pleaded guilty to 13 charges on the indictment.

8Mr Scott, you have pleaded to 15 charges on the indictment.

9In total, Mr Donnelly, you have pleaded guilty to, as I calculated, stealing ten boats - some with trailers - eight caravans, eight cars and five miscellaneous items, such as hay balers and ride-on mowers.  The cars and some of the miscellaneous items were not rebranded or sold on.  With the expensive cars that you stole you simply used them as your own, or used them to enable the thefts of caravans and boats, and other like items.  There were significant amounts of stolen goods that were recovered, but also a very significant amount that were not.

10The total value of all your thefts and dishonesty was not able to be made crystal clear, but can be no doubt it was hundreds of thousands of dollars.  The total known amount of money that you secured from ordinary members of the public who thought they were buying a boat or a caravan from the legitimate owner was calculated at $214,000.  These figures do not take into account, or they do not cap and collar, the monetary extent of your dishonesty.  There were many other items that were sold on, the values unknown, to persons unknown.

11The evidence revealed that there were expensive items, as I have said, sold on, but the prosecution does not know how that was done, or to who, or how much you made on the sale, but what can be said, and what was not in dispute, was whichever way this organised criminal enterprise is looked at one thing is absolutely clear, and that is the extent of your brazen level of dishonesty and your utter distain for, (1), those who own the goods, (2), the systems that the authorities put in place - that is, VicRoads - to ensure authentic, registered and traceable ownership of these items, and (3), the unsuspecting purchasers.

12These crimes were grave examples of the scheme of stealing and then, through false documents, on selling to others.  These are often called rebirthing type crimes.  This was a serious example of them.

13One example of how you operated this rachet establishes what you did repetitively, only ending upon your arrest.  I refer to the charges of theft, make false documents and obtaining property by deception, being Charges 11, 12 and 45 that were set out in the prosecution opening at paragraphs 32 to 35, and that are set out as follows.

14On 1 August 2016, and perhaps up to September of 2016, a caravan registered to another person was stolen from a Holden dealership in Wendouree.  The property was that of the owner of the dealership.

15Between 1 August 2016 and 12 September you made applications to register this campervan using VINs that were obtained when you had purported to be another person.

16On 1 September that caravan was transferred by you into another name, being Clinton McLean, and then from that into your own name on
12 September, using false VicRoads applications.

17On 10 October 2016 you advertised the campervan for sale on a well-known and popular internet site for caravan sales, being caravancampingsales.com.au.  You purported to be the true owner.  It was also put up on eBay.

18On 6 November you were contacted by a couple who agreed a price upon inspection of it.  The price was reduced to $30,000.  Police subsequently located the registration plate of the campervan during a search of your property on 9 February 2017, together with related documents and photographs of this campervan.  The campervan was valued at $50,000.

19Another example relating to a boat relates to charges that were covered in paragraphs 52 and 53 of the prosecution opening.  That is, on 2 August unknown persons stole a Rolco Tsunami wakeboard boat from a driveway in Highton.  The boat was owned by a private citizen.

20On 28 September you stole the boat by assuming the rights of the owner when you went to VicRoads and falsely registered the boat under your name.  You then changed the registration on 24 November 2016 to another name.  You had that person's licence, which had, in an earlier time, been stolen from that person's car.  The boat and trailer have not been recovered and were valued at $75,000.

21There are multiple examples similar to this throughout the prosecution opening.  A further one relating to a caravan is between 6 and 7 October; a caravan was stolen from a front lawn of the owner in Lethbridge.

22On 20 October Mr Scott attended at the Sunbury VicRoads in possession of the caravan.  Mr Scott provided false documents which you, Mr Donnelly, had made, purporting to show that he, Mr Scott, was the agent for a Clinton McLean, who was said to be the owner.  That of course was false.  Another document headed 'Bill of Sale' purported to show that McLean had purchased the caravan from another person, Nicholas Vivian, and purchased it for $36,000.

23Initially the registration was rejected.  On 1 December 2016 you persisted by making a false application to VicRoads to register the caravan, representing yourself as an agent for another person called Gagliati, and indicating that Gagliati had purchased the caravan from another person who had nothing to do with it.  VicRoads allowed this transfer based on those false documents.  You subsequently listed the caravan for auction on eBay on 2 December and it was sold to another member of the public for $35,001 on 19 December 2016.  The caravan was valued at $36,000.

24I will return back to aspects of the criminal scheme shortly, but I pause to note that many of the boats and caravans were stolen from owners from their properties - their driveways or their front lawns.  The prosecution told me there were no victim impact statements.  I have noted the monetary value of the thefts and the frauds, but it should not be forgotten that caravans and boats are often much valued items by their owners who enjoy nothing better than time away caravanning, or on their boats fishing.  To have these prized items taken from outside a house and then sold on to another enthusiast is a concerning thing for the owners.  They simply lose not just the thing, but the opportunity to do what they enjoy, until it can be replaced - if indeed it ever can be.  Those matters are not overlooked simply because you, Mr Donnelly - with the co-accused's Ms Fenton and Mr Scott - stole and rebirthed, and sold onto other persons these goods at almost an industrial level.

25So to return to an analysis of the scheme.  You, Mr Donnelly, involved your trusted co-accused in these transfers in order to keep, it seems to me, yourself at arm's length so that you did not have to do the menial driving of the vehicles to various VicRoads' offices in regional Victoria.  So it is that Mr Scott pleaded guilty to seven charges of theft and eight of using a false document that you, Mr Donnelly, had created.

26Mr Scott, your thefts were the driving of the caravan or the boat to VicRoads, and thereby assuming the rights of the owner by doing that.  The use of the documents was by presenting what had been falsely created to the VicRoads staff.  You, Mr Scott, had to dishonestly maintain that the documents were genuine, however, Mr Scott, in my view you were at all times a worker; an important helper, but no more than a conduit for Mr Donnelly to get stolen boats or caravans through the VicRoads identification systems so it then would be available for him to sell.

27It was said by you, Mr Scott, that you were reimbursed the cost of petrol and given $100, or no more than $100 per vehicle.  The prosecution could not contend otherwise.  Mr Scott, I will return to your personal circumstances shortly and elaborate on what was said as to why you were involved in this scheme.

28Ms Fenton, it seems to me you did as Mr Scott required on a number of occasions, as I have outlined - that is, in Charge 26.  This was a theft involving both you and Mr Donnelly, but it seems to me you were simply with Mr Donnelly when he took the caravan, that is the subject of Charge 26 to VicRoads in Hoppers Crossing.  The stolen caravan was then registered in your name using false documents that were completed by Mr Donnelly.  You pleaded guilty to using the false documents to register the caravan in your name.  Mr Donnelly then advertised that caravan for sale on the auction site eBay.  The highest bidder in that case was $8,100 and it was handed directly to Mr Donnelly, who used transfer documents stating that you, Ms Fenton, were the owner of the vehicle.  It seems to me you had nothing to do with the sale itself.

29That example was typical of the five charges of theft, four charges of use false documents and one of make false documents that you have pleaded guilty to.  However you also committed crimes of dishonesty, including deceiving the parachute company that I have referred to and then another company regarding hay baling equipment.

30Notwithstanding the separate involvement of the co-accused - such as you,
Ms Fenton - it seems to me the organising mind and key criminal force in this whole dreadful scheme was you, Mr Donnelly.  Your moral culpability for these crimes, Mr Donnelly, was very high.  As stated, they are serious examples of the crime of theft, making and using false documents and obtaining property by deception.

31There were, as I have said, other serious crimes in this period that you committed.  There were eight expensive cars - or seven expensive cars and a truck - stolen and used by you as if you were the owner.  A number of them were used by you to commit or facilitate other crimes.  A number of the cars were stolen while garaged at private houses.  Three of the stolen cars were expensive, or very expensive modern Mercedes Benz.  One was valued at $300,000, another was used in the serious dangerous crime of evading police while being pursued.  You had, as I understand it, a loaded handgun in the car at that time.  Other stolen cars were a Holden Clubsport, a Range Rover, a LandCruiser, a Ford Territory and a Mitsubishi truck worth $120,000, which was stolen from a hire company's yard.  A number of the stolen cars had stolen numberplates attached to them.  As I have said, some were recovered.

32I have mentioned the dangerous driving.  This was over the West Gate Bridge and through the Southbank area during roadworks on the West Gate Bridge, which reduced the speed limit on that piece of road to 40 kilometres an hour and closed all lanes bar one.  Your driving was filmed by the Police Air Wing and I have viewed the video.  It is frightening and certainly dangerous.  You were being pursued by police on the road.  In response you accelerated to what was estimated to be 140 kilometres an hour, driving in the closed lanes hitting bollards on the way.  You exited the freeway at Power Street and jumped from the car in Kavanagh Street.  You tried to hide a fully loaded .22 revolver but you were seen and the gun was recovered.  The car had rebirthing documents relating to the rucket that I have spoken about involving boats and trailers.  The loaded handgun you had with you in the stolen car was one of a total of four firearms that were found in searches of your properties.

33You pleaded guilty to a single rolled up charge of being a prohibited person in possession of firearms over the period 14 September 2016 to 9 February 2017.  The other firearms were to be found in the storage facility where you and Ms Fenton were arrested on 9 February 2017.  One was a very concerning gun, being a modified AR-15 assault rifle which had homemade barrels, a silencer and a laser sight.  The other was another .22 calibre revolver.  At your family home, Mr Donnelly, the police found a double barrel shotgun and rifle ammunition.  I note that the property that you were living at was a rural, or semi-rural property, and it was said that the shotgun was to deal with feral animals and the like, but nonetheless you were a prohibited person and should not have been in possession of any firearms, but your possession of these dangerous firearms - and particularly the others other than the shotgun - is a particularly serious example of the charge of being a prohibited person in possession of firearms.

34The maximum term for this offence is significant, being ten years.  The courts have consistently emphasised the need for stern punishment for this offence in order to denounce and deter.

35I have not elaborated on some of your other crimes, such as the handling of stolen goods - being mainly registration plates and other matters - and the negligently dealing with the proceeds of crime involving other cars, earthmoving equipment, building site sheds and the like.  These add to the variety of your dishonest dealings.

36Mr Donnelly, you were on bail at the time of the offending and you have pleaded guilty to a bail offence.

37You have a criminal record but it is not lengthy and mainly involves driving offences.  This offending was a quantum leap.

38I will turn to your personal circumstances first before dealing with the personal circumstances of Fenton and Scott.

39Your counsel submitted that aspects of your recent personal circumstances give the explanation as to why you leapt into this serious organised crime, having not been in much trouble in the past.

40You are now 35.  You were raised in the Geelong area.  You had, at times, a volatile relationship with your father.  You were often impulsive in behaviour at school and at home, causing difficulties at both.  You have become more insightful of your family, especially your mother's efforts, as you have grown and matured.  Your parents still support you.

41You found school restrictive and boring and behaved disruptively.  You commenced a roof tiling apprenticeship from school and remained in that industry for a few years.  You moved into concreting and established a successful business.  You were working long hours.  You and your wife purchased, and she operated, a busy waterfront café.  You managed the books and finances of both businesses.

42In 2014 and 15 you and she had two strong profitable businesses.  Your eldest son was born in 2013 and your next son in January of 2015.  You were working mainly in residential construction, and mainly with one large building company.

43In 2015 you were charged with theft of windows from a building site.  You were convicted by a magistrate.  You appealed and the charges were withdrawn before the appeal was heard in the County Court, but this whole ordeal affected your reputation and many contracts fell away.  Your business commenced to fail, ultimately collapsing at the end of 2015.  It seems you kept this from your wife.  You were not employed or working legitimately from 2016 until your arrest in February 2017.  You maintained your family, your drug habit, your girlfriend and your lifestyle from your dishonest crimes, for which you are now to be sentenced.

44From your teenage years until 2016 you drank excessively - especially with heavy binge drinking on weekends.  You reduced your drinking in 2016, as you increased your drug use.  You were a drug user in your working days, however in 2016 your use of ice became especially rampant.  Since your arrest and remand you have become insightful into the destructive nature of drug use.  You have had many clean urine screens, you have done concentrated drug courses in prison, and you have come to realise that treatment and counselling is essential.  All this is encouraging and to your credit - so too are your efforts at working in the prison and doing other rehabilitation courses; especially the 'Changing from the Inside' program.

45The assessments by Dr Barth, a psychologist, for the purposes of this plea, led him to the opinions as follows.  He says:

"The most salient features of his mental status when I evaluated him were depressive and anxiety related symptoms of mild intensity.  He also continues to experience transient periods of sadness which cause him mild degrees of distress, however these symptoms fall within normal limits and he does not meet the diagnostic criteria for any mood disorder, anxiety related disorder or adjustment disorder at this time".

46He goes on:

"Mr Donnelly presents with unequivocal personality pathology.  His personality and behavioural development has been severely disordered since childhood and is characterised by a propensity for reckless, aggressive and impulsive behaviour.  Adding to his difficulties his decision making is predominantly based on short-term gratification and he experiences minimal anxiety when he is engaging in high risk-taking behaviours that most people would experience as overwhelming".

47He considers your dysfunctional personality is sufficiently severe to warrant a diagnosis of anti-social personality disorder.  He goes on to say that you were able to display an appreciation of the noxious impact of drug use and alcohol on your behaviour and life more generally.  He says this:

"However, he is at the very early phases of addressing a significant addiction and his rehabilitation is at a very formative level.  Presently he lacks any realistic plans to remain abstinent.  Specialist substance abuse treatment is warranted if he is to have any realistic prospect of achieving a healthy life in the community".

48The conclusion that you have a dysfunctional personality disorder severe enough for it to be described as an anti-social personality disorder is troubling.  Plainly you need to focus on abstaining from drugs.  Hopefully after a period of incarceration you will simply learn that your energies have to be directed to lawful activities, as they were for a period of time.  The key to all that will be your family.  Your partner has remained supportive notwithstanding that you and your co-accused, Fenton, were in an intimate relationship and you were committing crime upon crime while she raised the children and tried to keep things together.  You and she have had another child, born after you were in prison, thus she has three very young children, financial woes, and a husband who has now been incarcerated for two years, with more to come.  You, on your release, ought not let her down again, and you should not let your young boys down.

49Your reform of course is in your hands.  I am guarded as to the likely success but you are doing, as I have said, what you can in prison to rehabilitate.

50Your plea of guilty is important.  The negotiations and resolution were complex and necessarily took time.  I will allow mitigatory benefit to you, and to the others, for the delay in these proceedings.  The value of your plea to return to that is significant.  I take it as a sign of remorse.  There are other expressions of remorse, as noted by Dr Barth.  He said the following, quoting for you, at paragraph 24:

"Mr Donnelly expressed remorse for his behaviour.  He stated, 'At the time I justified it', being the offending, 'that there was no harm, but now I have had the chance to step back and see the impact of my crimes and the effects on the owners.  Also the impact on people around me.  I can never make up for what I have done'".

51Your counsel submitted that a significant term of imprisonment made up of the time that you have served, and up to 12 months more, would be just and appropriate punishment when combined with a community corrections order that endeavoured to facilitate your rehabilitation by targeted programs.

52Unsurprisingly the prosecution did not agree, submitting only a sentence of imprisonment with the fixing of a non-parole period would be appropriate.  At the time I did not consider the submission of your counsel for some more gaol and a community corrections order would adequately express the need for denunciation and deterrence of you, and especially deterrence of others.

53I reconsidered all the matters - that is, the gravity of this offending over the
11 month period, its organised nature, its brazen aspects, the aspects of the dangerousness in the driving episode and the concerning firearms.  I have revisited the question of your moral culpability, given what was said of your collapsed business and your deterioration due to drug use.  I looked again at your efforts and commitment to rehabilitate and your strong family support.  In other words, I endeavoured to ensure that I engaged in individualised sentencing.  What I concluded is that nothing other than a significant, stern sentence of imprisonment was appropriate.  This offending was too serious for anything less than years of gaol, grave as that always is.

54I will defer announcing the sentence, which is a lengthy process itself, until I have dealt with the personal circumstances of Ms Fenton and Mr Scott.  I will make clear to you though, Mr Donnelly, that I have considered the relationship between the appropriate sentence for those two co-accused's and you in coming to the appropriate sentence, and most importantly I have kept to the fore the important principle of totality so as to ensure that your total sentence is no more and no less than what is appropriate and proportionate to your overall criminality in this period of time.

55Moving to you, Laura Fenton.  You are much younger than the men involved in these crimes.  You were only 24 and are just approaching your 27th birthday.  I discern a very significant level of maturing in the last year or more since your arrest.  That contrasts to your immaturity, and indeed vulnerability, at the time of becoming involved with Mr Donnelly.

56Your upbringing was unstable due to the violent behaviour of your stepfather.  He was an alcoholic and he was abusive physically and emotionally to your mother, and to you.  This has left you with ongoing symptoms of trauma.

57You were able to complete VCE and work in the hospitality industry, and as an administrator.  Despite this apparent stable move from good education to the workforce you became a drug user as a teenager.  Your use of methylamphetamines was limited at that point, but it progressively increased, however when you were involved with Mr Donnelly it very significantly increased in volume and regularity.  Using drugs was the central aspect of this destructive, reckless relationship with Mr Donnelly.  I will say more of your abstinence from drugs of late in due course, but your use of drugs as a teenager, and in your early 20s, was said to be at least in part an ill-advised way for you to deal with or mask your anxiety and depression.

58From the age of 19 to 21 you were involved with a young man who was also a drug user, but otherwise was not a further bad influence on you.  However, the next relationships that you engaged in were very different from that.  The first involved a man who was emotionally and physically abusive, to the point of holding you as a hostage at gunpoint.  You were only able to be rid of him when he was himself incarcerated.  It is notable that you say that some female associates of his were aggressive to you in the female prison when you were there once he had learnt of your remand.  The next relationship after that man was one that also involved physical abuse.  He was a supplier of drugs to you, and generally, thus you found the relationship with Mr Donnelly protective.  He was not physically or emotionally abusive.  You were infatuated and would, and did, do what he asked, including engaging in the credit card deceptions, the use of false registration documents, and the other crimes to which you have pleaded guilty.  Your involvement in these crimes was because you were with Mr Donnelly as his girlfriend.  You did not profit, but used drugs secured with the money obtained from these crimes.  Drug use was what the relationship was all about.

59On your arrest and remand you broke free from him and drugs and have commenced to significantly improve your prospects for the future.  Your involvement in the crimes was ill-judged and wrapped up in your relationship with Mr Donnelly, as I have said.

60Your counsel sought to argue that you had an impaired mental function that was causative or connected to your offending.  I am sure that you were vulnerable due to your fragile mental health as a result of your abuse both as a child, and in earlier relationships, but yours was not a case where there is any need to focus on the decision in Verdins in my view.

61Your moral culpability is lower by reason of you doing what you did at
Mr Donnelly's request.  Others do need to be deterred from becoming involved in criminal schemes, even as helpers like you.  The importance of general deterrence does not need to be moderated in your case.  What is more important is what you have learnt from your stay in prison, and from your productive time in Odyssey House.  The letters from the Odyssey House workers make it clear what efforts you have made and the significant advances that were achieved.  You were engaged, after your time as a resident at Odyssey House, as a resource for Odyssey House.  The letters and reports from the expert drug workers at Odyssey House recount your transition through the stages of recovery and rehabilitation.  As to your move from Odyssey House to the community your drug therapist, Ms Campioni, and the senior therapist, Mr Smithers, wrote the following in December of 2018:

"Ms Fenton has recently obtained employment, secure housing, and is attending personal therapy to sustain the changes she has made to date, along with her overall recovery into the future.  Ms Fenton developed a relapse prevention plan to ensure her recovery long term.  Odyssey House Victoria staff believe that Ms Fenton's situation is worthy of special consideration.  We are aware of the charges she is facing, however in our experience she has conducted herself appropriately and responsibly in all situations and we have never had cause for any concerns regarding her behaviours or attitudes towards residents or staff during her time in treatment with us".

62They say you worked hard and honestly over 15 months, acknowledging responsibility for past behaviours while expressing remorse and strong commitment and willingness not to repeat them.  They consider you were showing courage, honesty and determination in working to build a safe and meaningful life for yourself.

63You were at Odyssey House from July 2017 to September 2018.  The regime is strict.  In accordance with the Court of Appeal decision in Akora I will factor in your time in Odyssey House as part of the overall synthesis, recognising while not declarable as detention it is nonetheless a place of significant restriction and discipline.  Beyond that it has worked and you remain drug free, living in a settled environment and working now in the hospitality industry.  Your future has become more likely to be stable and positive.  I consider your prospects for the future to be reasonable, or even, indeed, better than that.

64I do not ignore your past criminal history, including relevant offences and the imposition of community orders that were breached by offences and poor compliance.  These matters are of concern, but I consider that things have markedly changed for you, making you a better prospect for complying with a community corrections order.  Both your counsel and the prosecution contended that with your time in custody a punishment of no further gaol and a community corrections order was just and appropriate.  The assessment of you expressed concerns due to your poor history of compliance, however in the end I am of the view that given your level of involvement at this time, your youth and immaturity and your very significant and solid steps in rehabilitating yourself, that now is the time to keep you in the community and facilitate your further reform while simultaneously imposing some further punishment by way of unpaid community work and supervision.  I will announce the conditions of the community corrections order shortly.

65Mr Scott, the sentencing of you presents a real difficulty.  You were involved in the role and at the level that I have described for four months.  Your role was important and you repetitively engaged in the tasks that you were asked to do, but on your arrest you were bailed, and unlike the other accused's - in particular, Ms Fenton - you have not served any time in custody.  What you seek is to remain at liberty by punishment solely involving a community corrections order.

66You are now 38.  You were raised in the Craigieburn area in a loving family.  You qualified as a mechanic and worked in that field for about four years, ultimately opening your own business.  This came to an end when you were caught and sentenced to prison for cultivating cannabis in the workshop.  The sentence was 12 months, of which nine months were suspended.  You have only one other criminal matter without conviction; a fine for use and possess amphetamines back in 2010.

67You had good work on your release from prison for the cultivation charge and you have done various jobs, including as a driver for Linfox delivering to hotels various CUB products, but you finished with that job in 2016.  You were unemployed.  You had known Mr Donnelly from the age of 18 but had not had a lot to do with him, if anything, in the intervening time, but you were looking for work in 2016.  You did some labouring on his property and fell into the driving of the boats and the caravans to VicRoads on the seven occasions for the $100 and the fuel that you had expended.

68You have had a solid relationship with your wife for now over 22 years, or thereabouts.  Your son is in his early 20s and doing well.

69You have been in trouble by drug use for many years.  It was said that you were using amphetamines and it was that that caused the failure of your business, which in turn saw you embark on the cannabis cultivation in 2007.  On your release from gaol you continued to struggle, using amphetamines and methamphetamines while in the trucking industry.  Your ice addiction at the time of these offences was significant, with daily use of whatever you could get.  You continue to this day to struggle, though by and large you have significantly reduced your drug use, but it was frankly put that there have been relapses.  You have, last year, done some drug counselling with Barwon Health.  You endeavoured to, but could not go to Odyssey House, although you were initially accepted by reason of Ms Fenton already being there.  It is clear that ongoing drug treatment is important in your case.

70Your plea is important and will result, ultimately, in a different more lenient sentence than would otherwise have been the case.  I consider that your stable family life, your limited prior matters and your limited role, your history in the workforce, legitimately, and your positive prospects generally - especially if you engage in drug treatment - leads to the imposition of a penalty that does not involve any incarceration.

71The tension here is acute.  That is because of the gravity of the criminality whereby you contributed to ensuring that the scheme that was implemented and operated by Mr Donnelly continued, which enabled him to sell more boats and caravans.  Ordinarily - as would be the case with Ms Fenton - someone involved in criminality at this level would receive imprisonment, perhaps with a community corrections order.  However, in the creation of what has become known as the "changed landscape of sentencing" by bringing about longer and more targeted community correction orders, the Attorney-General at the time - in the Government different to the one that we now have - brought in this Community Corrections scheme, and in doing so he said there was a lot to be said for keeping people out of prison, because that would keep families together.  I have considered that aspect of the sentencing process here - that you have a strong family - and this is the moment, Mr Scott, where if you breach this order, or commit further crimes, then you will do significant periods of gaol separated from your family.

72I have taken into account, as I have said, the delay in respect of each of the accused.  It is a matter of mitigation.

73I move to imposing the following penalties.  Bear with me.  As I have indicated, this will take some time because of the large number of offences, but I have utilised the provisions that allow for aggregate sentencing in respect of each of the accused.

74Mr Donnelly, I impose an aggregate sentence for the crimes of theft of boats, trailers, caravans and horse floats - also for the making of false documents, the using of false documents, for obtaining financial advantage by deception and attempting to obtain financial advantage by deception, for using or suppling identification and the possession of identification information.  These are the following charges:  Charges 6, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 22, 23, 24, 25, 26, 27, 29, 31, 33, 34, 36, 38, 42, 45, 48, 49, 52, 53, 54, 55, 56, 58, 59, 60, 61, 64, 65, 67, 71, 74, 75, 76, 77, 79, 80, 82, 84, 85 and 89.

75For committing those crimes you are sentenced to four years and six months' imprisonment.  I impose an aggregate sentence for the theft of motor cars, being Charges 3, 7, 18, 39, 46, 66, 68 and 69.  The sentence that I impose for that is three years.

76For committing the crime of burglary, the theft and obtaining financial advantage by deception, being Charges 1, 2 and 58, you are sentenced to one year and six months.

77For thefts of other miscellaneous items that I will not identify and the connected offences, being Charges 21, 40, 41 and 47, you are sentenced to one year and six months.

78For handling stolen goods (Charge 70), you are sentenced to one year imprisonment.

79For negligently dealing with the proceeds of crime (Charge 4), you are sentenced to nine months' imprisonment.

80For the offence while being pursued by police (Charge 19), you are sentenced to 18 months' imprisonment.

81For being a prohibited person possessing firearms (the rolled up Charge 20), you are sentenced to two years and six months' imprisonment.

82In respect of the possession of drugs (Charge 88), you are sentenced to one month imprisonment.

83There are summary offences (Charge 5; unlicensed driving, Charge 16; forging a registration document or plate).  For the unlicensed driving, given your past history, you are sentenced to seven days' imprisonment.  For Charge 16 you are convicted and fined $250.

84In respect of Charge 16, the bail offence, you are sentenced to one month imprisonment.

85Charge 103; possession of ammunition, you are convicted and fined $200.

86Charge 104; deal with property suspected of being the proceeds of crime, you are sentenced to one month imprisonment, and Charge 122; the possession of the crossbow, you are convicted and fined $150.

87The total fines with conviction are $600, however there are no cumulation in respect of any of the sentences imposed for the summary matters.  There are in respect of the matters on indictment.

88The base sentence is the aggregate sentence that I imposed of four years and six months.

89For the theft of the motor cars (the charges that relate to them), I order that eight months of that sentence be served cumulatively upon the base sentence, and all others.  For the burglary six months is cumulative (burglary, theft and the obtaining property by deception).  For the theft of the miscellaneous items that I outlined the cumulation is three months.  For the handling stolen goods the cumulation is two months.  In respect of the negligently deal with the proceeds of crime, one month.  For the dangerous driving while being pursued, ten months, and for prohibited person in possession of firearms, 12 months.

90That, on my calculation, delivers a total effective sentence of 96 months, being eight years, and I fix a minimum non-parole period of five years and six months before you are eligible for parole.

91You have served 737 days on remand.  That figure having been calculated and reckoned I declare that 737 days is part of the sentence I have just imposed.  We will ensure that this declaration is entered into the records of the court so that the authorities are left in no doubt that you have already served 737 days of the sentence I have just imposed.

92In respect of licences that you hold you are disqualified.  Any licences are cancelled and you are disqualified as a driver for a period of three years.

93Had you pleaded not guilty to these offences and been found of guilty of them I would have imposed a sentence of ten years and six months with a minimum term of eight years and six months.

94There are other orders which I will deal with shortly.

95Ms Fenton, on all charges I impose an aggregate term of 135 days' imprisonment together with a three year community corrections order.  In addition to programs, which I will outline, you will have to do 120 hours of unpaid community work.  The rehabilitative programs relate to drug assessment and treatment - programs to assist in you not reoffending - and you will be under supervision.

96I declare that you have served the 135 days that I have just imposed.  This figure having been reckoned and this declaration made, I will make it certain that it is entered into the records of the court so the prison authorities - all authorities - understand you have done every single day of the sentence that I have just imposed.

97Had you pleaded not guilty to these offences I would have imposed a sentence of four years with a minimum of two.

98Mr Scott, for all the offences an aggregate sentence is imposed.  It is three years, it is a community corrections order.  It is three years and nine months and you must do various programs, but you must do 220 hours of unpaid community work together with programs relating to drug use, programs to assist in you not reoffending.  You are to be under supervision as well.

99Had you pleaded not guilty to these offences and been found guilty of them I would have imposed a term of four years with a minimum of two years.

100There will documents produced for you, Ms Fenton, and you, Mr Scott, and if you sign those then that will bring your matters to an end.  Documents will be produced to the parties to ensure that they are satisfied as to the mathematics in respect to Mr Donnelly's matter and all other things are in order.  That might take some time.

101OFFENDER DONNELLY:  Can I get that - can I have that - can you clear that up?  What was my sentence?

102HIS HONOUR:  I will clear it up if you aren't clear.  Are you clear,
Ms Saldana?

103MS SALDANA:  Yes, Your Honour.

104HIS HONOUR:  Right.  Well, Ms Saldana will come and talk to you, but just so it's clear to you it's important that you do understand that the total effective sentence imposed upon you was eight years with a minimum term of five years and six months with a declaration of 737 days.  That's as you recorded it, Ms Saldana?

105OFFENDER DONNELLY:  You serious?

106MS SALDANA:  Yes, Your Honour.

107HIS HONOUR:  Take a seat please, Mr Donnelly.  I won't keep you here for much longer than is needed.  Mr Pickering, does the mathematics add to your satisfaction?

108MR PICKERING:  I've added them up, Your Honour.  All the periods are correct.  I have to say, I don't have notes of every - - -

109HIS HONOUR:  Yes, all right.

110MR PICKERING:  - - - charge, but all the maths adds up.

111HIS HONOUR:  Thank you.  Is there any reason - while I deal with the orders relating to Ms Fenton and Mr Scott - that Mr Donnelly remain, Ms Saldana?

112MS SALDANA:  No, Your Honour.

113HIS HONOUR:  Are there any other orders in respect of him?

114MR PICKERING:  There was the ancillary orders, Your Honour, which is the forfeiture and the disposal, but that's - - -

115HIS HONOUR:  Yes.  I'll sign some - - -

116MS SALDANA:  Which is not opposed, Your Honour.

117MR PICKERING:  And also - - -

118HIS HONOUR:  I'll sign some documents relating to forfeiture and disposal in respect to Mr Donnelly.

119MR PICKERING:  And, Your Honour, as was flagged to your associate the issues of compensation we put off to another date.

120HIS HONOUR:  Yes, thank you.  Mr Donnelly, there's no need for you to remain and you can be taken downstairs.  Thank you.  The documents relating to the community correction orders won't take long.  Ms Farrell,
Ms Mawby, best in the circumstances you take it to the back of the court to have that signed by them and then I'll explain it to them and I'll stand down and they can be released.

121In respect to Ms Fenton there's an application pursuant to 464ZF,
Mr Pickering?

122MR PICKERING:  Yes, Your Honour.

123HIS HONOUR:  Ms Farrell, what do you say about that?

124MS FARRELL:  It's not opposed, Your Honour.

125HIS HONOUR:  The seriousness of the offending, the prior convictions and the granting of the order is in the public interest.

126Ms Fenton, the prosecution has sought that you undergo a forensic sampling process to get from you a scraping from your mouth sufficient to enable DNA to be extracted.  I have considered that application and I intend to grant it.  I will explain to you that means that a window will open up 28 days from now.  Once that window opens up 28 days from now you have then got four weeks to get down to a police station and have the sample taken.

127Now, if you get there and you do not cooperate the authorities are authorised to use reasonable force to get the sample.  Just cooperate with it.  There are various police stations detailed in that document.  You do not have to go the one here, but one closer to where you are.

128Ms Fenton, in respect of this community corrections order yours will last for three years, commencing today, and ending on 14 February 2022.

129You need to understand the conditions of that community corrections order.  The first grouping of them are the mandatory ones - the ones that apply to everyone on such orders.  You have had community corrections orders before and they have not gone as well as they should have.  This one must, otherwise you will go to gaol, so it is important that you understand that if you commit another offence for which you could be imprisoned during the time this order is in force - that is, three years - you will breach this order, you will come back to me.  It will not matter what the magistrate did with whatever offence you committed; you will breach this order, you will be imprisoned for these offences.

130The next set of obligations on you are about cooperating and doing as you are required by the Office of Corrections, so you must comply with obligations and requirements under the Sentencing Regulations.  They will need to be able to identify you by taking a photograph, and all those things.  Just cooperate with that.  You must report to and receive visits from the Office of Corrections.  You must report to the Office of Corrections within two clear working days of the order starting.  The one that is closest to you, I am told, is in Sunshine.  The address is here.  You must let the Community Corrections officer know within two clear working days if you change your address or your job, you must not leave Victoria without getting permission to do so and you must obey all lawful instructions and directions.

131In respect of you special conditions that apply are that you have got to do 120 hours of unpaid community work, you must be under supervision and you must undergo assessment and treatment for drug abuse and dependency and do what programs they consider will help you not reoffend.  If you sign that it will bring the matter to an end.

132Ms Farrell, if you would just pause for a moment?  I will just read out things to Mr Scott.

133Mr Scott, your order is longer.  It is 45 months, it is a long period of time.  It will start today and go to 14 November 2022.  The conditions that apply to you are those - that is, the mandatory ones - that I have just outlined, just to make it clear.  You must not commit an offence for which you could be imprisoned during the time the order is in force.  If you do you will go to prison.  Do you understand?  You have got to cooperate as well - that is, with any obligation or requirement under the Sentencing Regulations.  You must report to and receive visits from the Office of Corrections, you must report to the Community Corrections Centre within two clear working days.  I am told it is the Geelong one, which is across the road in Little Malop Street.  The address is here.  You must let the Community Corrections officer know within two clear working days if you change your address or your job, you must not leave Victoria without getting permission to do so and you must obey all lawful instructions.

134You must, yourself, do these other conditions that apply to you.  You have to do 220 hours of unpaid community work over the 45 months, you must be under the supervision of the Community Corrections officers for that whole period and you must undergo assessment and treatment, including for drug abuse and dependency, and you must participate in programs that address factors relating to your offending that assist you not to reoffend.  If you sign that it will bring the matter to an end.  Ms Mawby, if you would go, like
Ms Farrell, to the back of the court?

135MS MAWBY:  Yes, Your Honour.

136HIS HONOUR:  I take it the instructor here is for Ms Saldana?

137MS SALDANA:  Yes, Your Honour.

138HIS HONOUR:  Yes, thank you.

139MS FARRELL:  That's been signed, Your Honour.

140HER HONOUR:  Thank you.

141MS MAWBY:  That's been signed now, sir.

142HIS HONOUR:  Thank you.  Is anything further required?

143MS MAWBY:  No, Your Honour.

144HIS HONOUR:  Anything further?

145MS SALDANA:  No, Your Honour.

146HIS HONOUR:  Thank you.

147MS FARRELL:  No, Your Honour.

148HIS HONOUR:  Thank you.  Grateful to counsel for their assistance.  I'll stand down and deal with other matters.  All counsel can leave the Bar table and we'll return shortly and call over the rest.  Thank you.

- - -