Director of Public Prosecutions v Dunne

[2023] VCC 1425

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. 20-01513 / 23-00444

DIRECTOR OF PUBLIC PROSECUTIONS

v

JACK DUNNE

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JUDGE:	HIS HONOUR JUDGE WRAIGHT
WHERE HELD:	Melbourne
DATE OF HEARING:	11 July 2023
DATE OF SENTENCE:	11 August 2023
CASE MAY BE CITED AS:	DPP v Dunne
MEDIUM NEUTRAL CITATION:	[2023] VCC 1425

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentencing.

Catchwords:              Plea of guilty – Theft – Prohibited person possess a firearm – Traffick drug of dependence – Possession of a drug of dependence – Knowingly deal with proceeds of crime – Dive whilst disqualified – Possess controlled weapon – Aggravated burglary – Common assault – Commit indictable offence whilst on bail – Contravention of community correction order – Resentenced on index offending – Possession of firearm for unlawful activity – Relevant criminal history – Drug related offending – Prospects of rehabilitation unable to be assessed positively – COVID-19 pandemic.

Legislation Cited:      Crimes Act 1958 ss 74(1), 77, 194; Firearms Act 1996 s 5(1); Drugs, Poisons and Controlled Substances Act 1981 ss 71AC(1), 73(1); Road Safety Act 1986 s 30(1); Control of Weapons Act 1990 s 6(1); Sentencing Act 1991 ss 6AAA, 18.

Cases Cited:DPP v Berichon (2013) 40 VR 490; Worboyes v The Queen [2021] VSCA 169; Bugmy v The Queen (2013) 249 CLR 571.

Sentence:                  Imprisonment for a period of 3 years and 6 months with a non parole period of 2 years and 6 months.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr B Kerlin	Office of Public Prosecutions
For the Accused	Ms N Freijah	Slades & Parsons

HIS HONOUR:

Introduction

1Jack Dunne, on Indictment N10455963, you have pleaded guilty to:

(a) two charges of theft contrary to s 74 (1) of the Crimes Act 1958 (‘Crimes Act’), which carries a maximum penalty of 10 years imprisonment (Charges 1 and 2);

(b) one charge of prohibited person possess a firearm contrary to s 5(1) of the Firearms Act 1996 (‘Firearms Act’), which carries a maximum penalty of 10 years imprisonment (Charge 3);

(c) two charges of traffick drug of dependence contrary to s 71AC(1) of the Drugs, Poisons and Controlled Substances Act 1981 (‘Drugs, Poisons and Controlled Substances Act’), which carries a maximum penalty of 15 years imprisonment (Charges 4 and 5);

(d) four charges of possession of a drug of dependence contrary to s 73(1) of the Drugs, Poisons and Controlled Substances Act, which carries a maximum penalty of 5 years imprisonment (Charges 6, 7, 8 and 10); and

(e) one charge of knowingly deal with the proceeds of crime contrary to s 194 of the Crimes Act, which carries a maximum penalty of 15 years imprisonment (Charge 9).

2You have also pleaded guilty to the related summary offences of:

(a) drive whilst disqualified contrary to s 30(1) of the Road Safety Act 1986, which carries a maximum penalty of 2 years imprisonment (Summary Charge 2 – rolled-up charge); and

(b) possess controlled weapon contrary to s 6(1) of the Control of Weapons Act 1990, which carries a maximum penalty of 1 year imprisonment (Summary Charge 19).

3You have also admitted your criminal record.  

4You have also admitted to breaching a Community Correction Order ordered by me on 20 September 2021 in respect of the charges set out in Indictment L11566593.1, to which you pleaded guilty on 8 September 2021.  Those charges are:

(a) one charge of aggravated burglary contrary to s 77 of the Crimes Act, which carries a maximum penalty of 25 years imprisonment (Charge 1); and

(b)   one charge of common assault contrary to common law, which carries a maximum penalty of 5 years imprisonment (Charge 2).

5You now stand to be resentenced on this index offending.

Circumstances of the offending

6You were 29 years old at the time of the offending and resided at an address in Tyabb.

7On 11 October 2021 at the Frankston Magistrates’ Court, you were disqualified from driving a motor vehicle for a period of 12 months.

8Your co-accused Emily Mayle was 26 years old at the time, and the two of you were in a relationship. She was the registered owner of a black 2020 Hyundai i30 sedan with registration ending 1ZS (‘black Hyundai’).

9Your other co-accused Tamara Hamilton was 40 years old at the time of the offending. She resided at an address in Mornington.

Theft of Motor Vehicle (Charge 1)

10On 20 December 2021, between midnight and 9.30 am, a black Volkswagen Amarok utility vehicle with registration ending 1P4 (‘vehicle ending 1P4’), belonging to Mr Arrowsmith, was stolen from the driveway of his Lysterfield address by an unknown offender.

11Between 21 and 24 December 2021, you sent text messages to a mobile number ending in ‘303’ seeking to secure a vehicle. On 24 December, you came into possession of vehicle ending 1P4. You were captured on CCTV driving the vehicle at 11.43 pm on 24 December 2021.

12It is not alleged that you were party to the initial theft of the vehicle. The charge is put on the basis that you drove the vehicle.

Theft from Motor Vehicle (Charge 2)

13At approximately 9.00 pm on 24 December 2021, Mr Boyte had parked his black 2018 Volkswagen Amarok utility vehicle with registration ending 9IH (‘vehicle ending 9IH’) in his driveway at his Cranbourne East address.

14At approximately 11.43 pm, you drove vehicle ending 1P4 from Ms Hamilton’s Mornington address and attended Mr Boyte’s address. you then stole the rear registration plate from vehicle ending 9IH.

15Mr Boyte did not notice the plate had been taken until the following day, 25 December 2021, at around 11.00 am, at which point he reported the incident to police at Cranbourne Police Station.

16At approximately 1.43 am on 25 December 2021, CCTV captures you returning to Ms Hamilton’s address in Mornington in vehicle ending 1P4 with the stolen registration plate in your possession.

Recovery of vehicle ending 1P4

17At approximately 9.27 am on 26 December 2021 whilst conducting routine patrols in Mornington, police spotted a black 4WD utility vehicle with no rear number plate parked in the driveway of Ms Hamilton’s Mornington address. It was parked behind Ms Mayle’s black Hyundai, and fitted the description of vehicle ending 1P4 that had been reported stolen to police.

18After conducting checks at Mornington Police Station, police returned at approximately 10.15 am to identify the utility vehicle. Upon close inspection, police noted black Velcro had been attached where the front and rear number plates would ordinarily be located, but there were no plates on the vehicle.

19When police checked the VIN, they discovered the vehicle was vehicle ending 1P4.

20A tow truck was arranged and arrived at 11.00 am. Police knocked on the door to ask for the black Hyundai to be moved so that vehicle ending 1P4 could be towed.

21Ms Mayle and Ms Hamilton were present when police attended and Ms Mayle moved her car for the police.

22Police later discovered text messages sent between you and Ms Mayle at the time discussing what story would be offered to police about the vehicle, with you telling Ms Mayle to tell police she didn’t know whose car it was, and to delete messages from her phone.

23Examination of vehicle GR1P4 located fingerprints and blood traces matching you.

Prohibited person possess firearm (Charge 3) - Traffick drug of dependence (Charges 4 to 5) – Possess drug of dependence (Charges 6, 7, 8 and 10) – Knowingly deal with proceeds of crime (Charge 9)

24Following the recovery of vehicle ending 1P4, you were identified as a person of interest by police.

25On 7 March 2022 at around 10.30 am, police from the State Surveillance Unit observed you as the front passenger of a white Toyota Hilux with registration ending 311 (‘the Hilux’) which was being driven by owner Mr Henson on Mornington-Tyabb Road in Tyabb.

26Police observed the Hilux attend a factory on that same road. You were observed exiting the front passenger seat and entering the factory.

27You were observed existing the factory a short time later carrying a black backpack. You got into the front passenger seat of the Hilux, which then drove away onto Mornington-Tyabb Road.

28At approximately 10.55 am, police observed the Hilux attend Bunnings Warehouse in Hastings. You were again observed exiting the front passenger seat.

29At approximately 10.58 am, police arrested you exiting the Bunnings and located a phone in your possession. They searched the Hilux and found a black backpack in the front passenger seat footwell.

30Located in the backpack were the following items:

(a)   one silver coloured .38 six-shot revolver, loaded with six bullets (Charge 3);

(b)   one Ziplock bag containing five Ziplock bags with a total of 139.6g of methylamphetamine (Charge 4);

(c)   four Ziplock bags containing a total of 15.1g of methylamphetamine (Charge 5);

(d)   one bottle containing 35.9g of 1,4 Butanediol (Charge 6);

(e)   65.9g of cocaine (Charge 5);

(f)    two Suboxone strips (Charge 7);

(g)   five Oxycodone blister packs, each containing 10 tablets (Charge 8);

(h)   one glass ice pipe;

(i)    one lighter;

(j)    $26,004 cash in $100 and $50 denominations;

(k)   one Ziplock bag containing one .38 bullet;

(l)    one set of scales; and

(m)     one hunting knife (Summary Charge 19).

31Both you and Mr Henson were arrested by police and transported to Frankston Police Station.

32Mr Henson was arrested and charged in relation to possessing a drug of dependence, and then bailed.

33You participated in a largely ‘no comment’ recorded interview. You were charged and remanded in custody.

Drive whilst disqualified (Summary Charge 19)

34In relation to the drive while disqualified charge, CCTV captured you driving whilst disqualified on 14 separate occasions between 24 December 2021 and 6 March 2022.

Nature and gravity of the offending

35Clearly the most serious offences to which you pleaded guilty relate to the backpack where the drugs, cash and the weapon were found. Without repeating the list of items as indicated above, it is self-evident that the items found in combination relate to a drug trafficking business.

36While charges 4 and 5 are charges of trafficking simpliciter, as pointed out by the prosecution in relation to the methylamphetamine, you were in possession of 51.6 times the traffickable quantity, and in relation to the cocaine, you were in possession of 21.9 times the traffickable quantity. As to the possession charges, as the drugs were found together with the drugs the subject of Charges 4 and 5, I am satisfied that they were possessed for the purposes of trafficking and thus the higher penalty applies.

37Ms Freijah, who appeared on your behalf, submitted that the offending occurred over a very short period of time in that you picked up the bag and were arrested shortly thereafter. Further, that you instruct that you were simply delivering the bag for a reward of cash and drugs. It was therefore submitted that in all the circumstances the trafficking offences fall at the lower end of the scale. Mr Kerlin, who appeared on behalf of the Director of Public Prosecutions, submitted that when consideration is given to the quantity of drugs the subject of the trafficking charges, together with the other items in the bag, your conduct falls in the mid-range of offending of this nature.

38While I accept the prosecution submission that when consideration is given to the amount of drugs in your possession, your offending may be viewed as relatively serious, there is no evidence of actual trafficking. Nonetheless, I am satisfied that you were undoubtedly in a trusted position and well aware of the contents of the bag that was in your possession and control. As such, in my view, in all the circumstances your conduct represents a reasonably serious example of trafficking simpliciter.

39In relation to the firearm, both counsel made reference to the decision of DPP v Berichon[1] and the two broad categories of seriousness that are discussed by Redlich JA in relation to a being a prohibited person in possession of a firearm. The first category relates to cases where it is not open to conclude that the possession of the firearms is associated with ongoing criminal activity. The secondary category of cases described are those where the evidence enables a conclusion that the possession is for the purpose of criminal activity or a specific criminal purpose. His Honour also noted that in determining the seriousness of the offence, the prior convictions of the offender in conjunction with circumstantial evidence may also enable the conclusion to be drawn that the possession is for some unlawful activity.[2]

[1] (2013) 40 VR 490.

[2] Ibid at [26].

40As noted above, the loaded handgun was found in the bag together with the drugs, a large sum of cash and other trafficking paraphernalia. While I am unable to conclude that the possession of the loaded weapon was for a specific criminal purpose, I am satisfied in all the circumstances that the possession was for some unlawful activity.

Personal circumstances

41You are now 30 years old, the second of three children. Your mother and father separated when you were about two years old. You were born in Sydney but when your parents separated, you moved with your mother to Mornington in Victoria while your father remained in Sydney. He later moved to Canberra. You maintain a relatively positive relationship with your two siblings. You have had no contact with your mother since she effectively abandoned you when you were 14 years old to live with her new partner. You maintain limited and sporadic contact with your father.

42Two psychological reports were tendered on the plea. The first and more recent report is authored by psychologist Carla Lechner, dated 23 May 2023. The second report is authored by psychologist Carla Ferrari and is dated 24 August 2021. Both reports are insightful as to your personal history and mental health and substance use issues. I have taken these reports into account and summarise their contents below.

43In primary school, you struggled academically and were often in trouble for being ‘disruptive’. You commenced secondary school at Padua College in Mornington, however in Year 7, after suffering a severed femoral artery as a result of being struck by glass in the leg from an exploding glass bottle, you had to relearn how to walk and missed about six months of school as a result. This setback meant you were eventually asked to leave school. You repeated Year 8 but were then expelled for fighting. Your mother sent you to Canberra to reside with your father, even though you did not want to go. You were soon sent back to Mornington after displaying behavioural issues in school in Canberra. It was at this time that your mother abandoned you to live with her new partner in Port Fairy. You subsequently left school altogether and commenced living alone.

44You started working at the racetrack in Mornington as a trainer, and it was in this role that you commenced using illicit substances. You stayed in this role until you were 18 years old, at which point you began an apprenticeship in bricklaying. Unfortunately, the bricklaying work dried up after a couple years and you were unable to complete your apprenticeship. You returned to working with horses on a casual basis and also undertook a carpentry apprenticeship in Canberra. You report that your longest period of abstinence was for 12 months in 2018 whilst gainfully employed in Canberra. Prior to your remand on these matters, you were casually employed in a furniture making role before relapsing into drug use.

45Ms Lechner observes that you fell into drug use early on as a form of ‘self-medication’ for the many emotional stressors in your life, including, among other things, abandonment by both parents in your adolescent years leaving you without familial or social supports, the near death experience of being struck in the femoral artery by exploding glass in Year 7 and having to relearn how to walk, and needing to repeat Year 8 before being asked to leave school. Ms Lechner notes that this evolved into a pattern of ‘self-defeating’ behaviour, including drug use and offending, that has continued into your adult life and is triggered by experiences that induce the feelings of abandonment and rejection you experienced as a child.

46I note you relapsed into drug use shortly before this current offending, due to what you perceived as another experience of abandonment and rejection, namely the breakdown of your relationship with your partner, Laura Fowler. You have since reconciled your relationship with Ms Fowler and your mood has improved. Ms Lechner notes you have hope ‘for a brighter future’, although she recommends that you develop ‘more robust and adaptive coping skills and strategies’ through ongoing psychological counselling. She ultimately concludes that you present with symptoms of Stimulant Use Disorder (in early remission), Complex Post-Traumatic Stress Disorder, and a recent past history of Adjustment Disorder with Depression. She notes you are very open to engaging in further psychological treatment, which is a positive sign, and states that counselling with a specific focus on relapse triggers and prevention would be of the greatest benefit to you.

47You are the father of three children, aged 10, nine, and nine months. You have not had contact with your two older children since 2014 after your relationship with their mother broke down. Your current partner, Ms Fowler, who is the mother of your youngest child, remains supportive of you and she has provided a letter of support on the plea. Ms Fowler notes your difficult upbringing and lack of stable role models growing up, and states that since entering custody and completing the Positive Lifestyle Program administered by The Salvation Army, you have had the opportunity to reflect on your choices and make positive improvements to both your physical and mental wellbeing. Ms Fowler also states that it has been difficult for her to raise your young child alone, and she believes that you will emerge from your time in custody ‘ready to move on with [your] life for the better, to start fresh with [your] family and be the role model for [your] child that [you yourself] never had’. I note your child was born while you have been in custody and you have met her only twice. Her birth appears to have served as a turning point for you, and you expressed to Ms Lechner that you see this as your ‘second chance’ at being a father.

48Two further support letters were tendered on the plea. One is from Brett Morris, a chaplain at The Salvation Army who administered the Positive Lifestyle Program that you completed whilst in custody at Fulham Correctional Centre. He notes that you were an ‘enlightening participant’ who ‘fully engaged with in-depth and insightful conversations’. The second support letter is from Kane Whitzell, a family friend who has known you for over 20 years. He is a supervisor on the Metro Tunnel construction project and states that he will support you in securing full time employment in the construction industry when the time comes, noting that there are requirements for randomised drug and alcohol testing that a prospective worker would need to satisfy. I take the contents of these letters into account.

Sentencing considerations

49Ms Freijah highlighted a number of matters in mitigation. First and foremost is your plea of guilty. Your plea has saved significant court time and expense and has brought the matter to an early conclusion, thereby facilitating the course of justice. The plea carries additional weight which must be reflected in a further amelioration in sentence, as the plea was entered in circumstances where the pandemic has caused a substantial backlog of cases in the criminal justice system.[3]

[3] Worboyes v The Queen [2021] VSCA 169, [39].

50It was submitted that as a result of the difficult years you experienced as you entered adolescence, the principles enunciated in Bugmy v The Queen[4] should be given weight in the sentencing discretion. I have taken into account the contents of the psychological reports tendered and the impact your childhood experiences have had on your social and emotional development. While I accept that you did suffer a number of traumatic events including abuse, abandonment and rejection in your early years, which I do take into account, I am not satisfied on the evidence that Bugmy principles are enlivened in the sense that your experiences amount to ‘profound childhood depravation’.

[4] (2013) 249 CLR 571.

51Turning to prospects of rehabilitation, it was submitted on your behalf that your prospects are positive given your relatively strong work history, the availability of employment and accommodation upon your release, your relationship with your supportive partner, your positive engagement with courses in custody and your change of attitude as evidenced in the references tendered. I accept that having a young child born while in custody has given you a greater motivation to try again to move forward from a life involving drugs and crime. However, you committed this new offending while on the community correction order I imposed on you in 2021, shortly after being released from custody. As I noted in the previous sentence, your prospects were dependent upon you remaining drug free and utilising your supports in the community. You clearly failed to do that. While on the last occasion I assessed your prospects as ‘good’, at this stage they cannot be assessed positively.

52Deterrence, both general and specific are the prominent sentencing considerations in this instance together with denunciation of your conduct. Trafficking of drugs and the possession of loaded weapons have the potential to wreak serious harm on the community and such conduct must be deterred. Further, as you have an extensive prior criminal history and you have committed this offending in breach of the previous community correction order I imposed, specific deterrence must carry weight in the sentencing discretion.

53As part of this hearing you also pleaded guilty to the breach of the community correction order I imposed on 20 September 2021. That related to a sentence of imprisonment for a period of 18 months together with a community correction order for a period of 3 years in relation to charges of aggravated burglary and common assault. Having served the sentence component of this combination order, you were released into the community on the community correction order which you have breached by the commission of the offences above, and also as a result of non-compliance as outlined in the breach report. I have considered the contents of the breach report and my previous sentencing remarks in relation to the previous offending. On resentencing you on the original charges, I take into account your limited compliance with the community correction order.

54In relation to the prison component of the combination order, you were released having served only 428 days (approximately 13 months), as a result of 128 emergency management days being deducted from your sentence. Pursuant to s 18 of the Sentencing Act 1991 (‘Sentencing Act’) I am only able to formally declare the 428 days, however I have regard to the 128 emergency management days. I also take into account the principle of totality when formulating the total effective sentenced across both matters.

Sentence

55Mr Dunne, would you please stand.

56Jack Dunne, on Charge 1, theft (of a motor vehicle), you are convicted and sentenced to 6 months imprisonment. On Charge 2, theft, you are convicted and sentenced to 1 month imprisonment. On Charge 3, prohibited person possess firearm, you are convicted and sentenced to 2 years imprisonment. On Charge 4, trafficking in a drug of dependence, methylamphetamine, you are convicted and sentenced to 2 years and 6 months imprisonment. In relation to Charge 5, trafficking in a drug of dependence, cocaine, you are convicted and sentenced to 2 years imprisonment. In relation to Charges 6, 7, 8 and 10, possession of drugs of dependence, you are convicted and sentenced to 2 months imprisonment on each charge. In relation to Charge 9, knowingly deal with the proceeds of crime, you are convicted and sentenced to 12 months imprisonment.

57In relation to related Summary Charge 2, driving while disqualified, which is a rolled up charge, you are convicted and sentenced to 2 months imprisonment. In relation to Summary Charge 19 you are convicted and sentenced to 7 days imprisonment.

58I direct that 3 month of the sentence imposed on Charge 3 be served cumulatively on the sentence impose on Charge 4, making for a total effective sentence of 2 years and 9 months on Indictment N10455963.

59In relation to the breach of the community correction order following the sentence imposed in 2021 on Indictment L11566593.1, I resentence you as follows. On Charge 1, aggravated burglary, you are convicted and sentenced to 18 months imprisonment. On Charge 2, common law assault, you are convicted and sentence to 6 months imprisonment. Those sentences will be served concurrently, making for a total effective sentence of 18 months imprisonment.

60As for the charge of breaching the community correction order, you are convicted and discharged.

61I direct that 9 months of the sentence imposed on Indictment L11566593.1 be served cumulatively on the sentence imposed on Indictment N10455963, making for a global total effective sentence of 3 years and 6 months. I direct that you serve 2 years and 6 months before becoming eligible for parole.

62Pursuant to s 18 of the Sentencing Act, I declare that 950 days be reckoned as the period of imprisonment already served under the sentence I have imposed. That does not include today.

63Pursuant to s 6AAA of the Sentencing Act, if not for your plea of guilty, I would have sentenced you to a period of imprisonment of 4 years and 6 months with a non parole period of 3 years and 6 months.