Director of Public Prosecutions v Fulham

[2018] VCC 2186

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR 18-01900

DIRECTOR OF PUBLIC PROSECUTIONS

v

KANE FULHAM

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JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Latrobe Valley
DATE OF HEARING:	5 December 2018
DATE OF SENTENCE:	10 December 2018
CASE MAY BE CITED AS:	DPP v Fulham
MEDIUM NEUTRAL CITATION:	[2018] VCC 2186

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Intentionally damage property, conduct endangering persons, burglary, theft of firearm, prohibited person possess a firearm, handling stolen goods, dangerous driving while pursued by police.

Legislation Cited:  Firearms Act 1996

Cases Cited:

Sentence:Total effective sentence of four years and six months imprisonment and the minimum term to be served before being eligible for parole is three years imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr B. Nibbs	Director of Office of Public Prosecution
For the Accused	Mr B. Newton (For Plea) Mr J. Miller (Sentence)	Stephen Peterson Lawyers

HIS HONOUR:

1Kane Fulham on 5 December 2018, you pleaded guilty at the Latrobe County Court to the following charges on indictment No.H11713824: 

Charge 1, criminal damage of motor vehicle belonging to Victoria Police.  This charge has a maximum penalty of ten years imprisonment. 

Charge 2, conduct endangering persons.  This charge has a maximum penalty of five years imprisonment. 

Charge 3, burglary.  This charge has a maximum penalty of ten years imprisonment. 

Charge 4, theft of firearms.  This charge has a maximum penalty of 15 years imprisonment. 

Charge 5, handle stolen goods.  This charge has a maximum penalty of 15 years imprisonment. 

Charge 6, dangerous or negligent driving whilst pursued by police.  This charge has a maximum sentence of three years imprisonment. 

Charge 7, a prohibited person, you are a prohibited person in possession of firearms, that charge has a maximum penalty of eight years imprisonment.

2Pursuant to the provisions of s.145 of the Criminal Procedure Act 2009 you consented to a number of related summary charges being heard at this plea hearing. You pleaded guilty to the following related summary charges:

Charge 1, failing to stop at the direction of police officers.  This has a maximum penalty of 12 months imprisonment. 

Charge 10, failing to stop at the direction of police officers that has a maximum penalty again of 12 months imprisonment. 

Charge 39 which was between 30 May 2017 and 19 June 2017, driving whilst disqualified in a number of places, maximum penalty of two years imprisonment. 

Charge 43, dealing with the proceeds of crime, this has a maximum penalty of two years imprisonment. 

3You have been in custody since your arrest on 19 June 2017, a total of 538 days pre-sentence detention have been served not including today.

Circumstances of your offending

4The prosecution tendered and read into open court an agreed summary of your total offending.  I will refer to and repeat the relevant sections setting out the circumstances of your offending between 30 May 2017 and the day of your arrest on 19 June 2017.

30 May 2017

5At or about 2.30 pm on that day, Leading Senior Constable Darren Lomax (“LSC Lomax”) was driving on Mackins Road in Fish Creek. He was in the area searching for you. 

6LSC Lomax observed your white Holden Commodore driving towards him and moved to the middle of the road to intercept the vehicle.  He turned on his red and blue flashing emergency lights, to signal to the vehicle to stop.  The vehicle continued to travel towards him at approximately 60 to70 kilometres per hour. LSC Lomax did not believe that the Commodore would stop and was forced to move his vehicle out of its path to avoid a collision.   LSC Lomax also signalled with his hands to pull the vehicle over.  As the Commodore drove past, LSC Lomax observed you to be the driver.  The vehicle did not stop and police declined to pursue the vehicle.  That was related summary charge 1, failing to stop at police direction.

5 June 2017

7At approximately 2.04 pm on 5 June 2017, police attended at 2 Emerson Way in Wimbledon Heights in an attempt to locate you.  Detective Senior Constable Paul Burns (“DSC Burns”) was driving an unmarked black Ford Territory vehicle. 

8Upon arrival DSC Burns observed you to get into the driver's seat of a silver Commodore parked in the driveway.  Detective Burns positioned the police vehicle behind the Commodore, intending to arrest you.  You have then immediately reversed the silver Commodore colliding with the front of the police car. 

9After this first collision, DSC Burns moved his vehicle to the left to block you from leaving the driveway.  You have then performed a U-turn and drove across the front of police vehicle causing another collision between the front of the police vehicle and the passenger side of the Commodore you were driving.  These two collisions caused minor damage to the front of the police vehicle.  That was Charge 1, intentionally damage property.

10You then drove away from the property in the direction of Gap Road.  At the intersection of Gap Road and Back Beach Road, police caught up to your vehicle.  DSC Burns activated the police red and blue emergency lights to indicate to you to pull over.  You did not pull over and accelerated away from the police onto Phillip Island Road at speed.   Police did not pursue you, due to the safety concerns. That is related to summary
 Charge 10, failing to stop at police direction.

9 and 10 June 2017

11Between nine and 10 June 2017, a 1994 white Toyota Land Cruiser utility was stolen from 60 South Yannathan Road in Yannathan.  On 10 June 2017, this vehicle was recovered in Ripplebrook, your fingerprints were located inside that vehicle.  That was summary Charge 43, dealing with property suspected of being the proceeds of crime.

13 June 2017

12On 13 June 2017,  Leading Senior Constable Simcock (“LSC Simcock) was patrolling the Wonthaggi area in an unmarked highway patrol vehicle.  At about 1.20 pm he observed a red Holden Commodore Sedan parked at the end of Old Boiler Road in Harmers Haven.  As he approached the vehicle it has started to drive towards him.  LSC Simcock moved his vehicle to the left of the road to give it room to pass.  The vehicle also moved left and into the path of the police vehicle.  To avoid a collision both vehicles braked heavily. 

13The red Commodore came to a stop within half a metre of the police vehicle.  LSC Simcock observed you to be driving that car.  You then drove past the police vehicle.  LSC Simcock performed a U-turn and commenced following you. 

14You drove down Old Boiler Road and turned into Cape Paterson Road.  While travelling on Old Boiler Road the stalker of mobile radar and the police vehicle indicated that your speed was 140 km/h before the intersection of Cape Paterson Road. 

15The police followed the vehicle into the Wonthaggi township, with the emergency lights activated.  On entering the township the posted speed is
60 km/h. The police observed you overtake another vehicle from the left-hand lane at high speed.  Fearing a collision, police deactivated the emergency lights and pulled off the road. 

16Police recommenced following your vehicle when it continued towards Wonthaggi central business district at high speed.  On Billson Street, police again checked your vehicle's speed, it was constant at 155 km/h for five seconds.  The posted speed limit at this area is 60 km/h from the start of the street and 50 km/h at the end, where there is a primary school located.  That is the Charge 2, conduct endangering persons. 

17Up to this time there has been four separate days where you have offended and you know full well that the police wanted to speak to you.  No serious harm had been done to other persons and no other offenders had been involved in your criminality up to that date.

17 and 19 June 2017

18You and co-offenders drove to an isolated farm located at 475 Gniel Road in Ouyen.  You and Mr Benkic entered a large shed on the property where the owner stored firearms and ammunition.  That was Charge 3, burglary. 

19Using chains attached to the vehicle, you and Mr Benkic removed the gun safes from the wall and opened them.  You and Mr Benkic then stole six firearms and a large quantity of ammunition.  That is Charge 4, theft of a firearm or firearms.

20These firearms were registered to the lawful owners Geoffrey Ian Gniel and his son-in-law Paul Thomas Baker, persons who were unknown to either of you.  You are not licensed to possess these or any firearms.  You were a person who was prohibited from possessing firearms under the Firearms Act 1996.

21On 19 June 2017, at approximately 6.30 pm, you and the co-offenders were travelling along the Calder Highway heading south.  You were travelling in a stolen Nissan utility which had earlier been stolen from New South Wales.  That was of Charge 5, handling stolen goods.

22At this time the police air wing had your vehicle under aerial surveillance.  Police attempted to intercept your vehicle north of Kyneton on the Calder Highway.  Mr Benkic was driving the vehicle and then you and the other co-offender, Ms Perry were the passengers. 

23Police activated the emergency lights and sirens in an attempt to pull over the vehicle.  Mr Benkic slowed it down and stopped the vehicle in the emergency lane.  However, before the police could approach the vehicle Mr Benkic then took off at speed.  He then drove the vehicle diagonally across two lanes of traffic before crossing over the median strip and onto the other side of the highway. 

24Mr Benkic then drove, contrary to the direction of the traffic along the northbound lanes of the highway for about a hundred metres.  The vehicle then performed a U-turn and continued travelling north along Calder Highway.  The police did not attempt to pursue the vehicle across the median strip. 

25While travelling north along the Calder Highway the vehicle briefly stopped and Mr Benkic switched places with you.  You then commenced driving the vehicle.  At that time, you must have known you had no escape from the police. 

26While you were driving the vehicle the following events occurred, which were observed by the pursuing police and also by the police airwing.  These are the matters that make up Charge 6, dangerous or negligent driving while pursued by police, and are as follows:

(a) The vehicle you were driving left the highway at Elphinstone travelling on back roads toward Macedon. 

(b) The vehicle then drove through the townships of Kyneton and Woodend. 

(c) At about 7.24 pm your vehicle impacted a tyre deflation device set up at the Black Forest Drive in Macedon.  This caused the passenger side front and rear tyres to deflate. 

(d) The damaged vehicle was then driven onto the Calder Highway, heading south, followed by police vehicles.  Your vehicle again crossed the median strip onto the northbound lanes, travelling in the opposite direction to the traffic flow before performing a U-turn.  Your vehicle was then driven back across the median strip onto the southbound lanes, travelling contrary to the traffic flow before exiting onto Black Forest Drive towards Macedon.

(e) By this point, the vehicle had lost both front and rear passenger tyres and was being driven on the wheel rims.  The vehicle was then driven onto a number of dirt roads within the Macedon Pine Forest.  At about 7.30 pm you and the co-offenders abandoned the vehicle and fled on foot into the pine forest. 

27Police officers and K9 units searched for you and the other offenders in the forest, locating you at 7.48 pm and Mr Benkic at about 8.27pm.  Ms Perry handed herself into the police. 

28A search of the stolen vehicle located four of the firearms which had been stolen at the Gniel Road farm, along with associated ammunition and that was Charge 7, prohibited person possess a firearm. 

Related Summary Offence 39 – Drive While Disqualified

29On 3 March 2016, at the Korumburra Magistrates' Court your license was cancelled and you were disqualified for a period of two years.  At all the relevant times you were disqualified from driving. 

30By the time the dog from the K9 squad got his teeth into your ankle on 19 June 2017, you had been on the run from police for approximately 20 days.  In that period of time, your criminality escalated from driving offences at the beginning to serious dishonesty charges involving firearms and driving offences involving a police chase and endangering other persons. 

Personal Circumstances

31You are 31 years old.  You are a middle child, you have two older brothers and two younger sisters.  When you were young your parents separated, nevertheless you were raised in a functional family.  In 2004 your eldest brother was tragically killed in a car accident.  Your father committed suicide a couple of days later.  These two events naturally had a great effect on you at around age of 16.  You attended school to Year 8, you have not obtained numeracy or literacy.  You have worked on the family dairy farm as an excavator operator and a baker. 

32You have two prior relationships and have two children aged nine and five respectively from each of those relationships.  You have a new partner who now visits you whilst you are in custody.  You have used and abused alcohol, cannabis, methamphetamine.  Your ice use has been dominant over the past ten years.  You are undergoing rehabilitation for drug use whilst in custody.  You are also addicted to gambling.  Ice use and gambling were your major activities prior to your incarceration. 

33Mr David Ball, a forensic psychologist, has assessed you for the purposes of this plea proceeding, and prepared a report dated 6 March 2018, that is Exhibit “F1”.  Mr Ball has assessed your IQ as falling within the mildly retarded range where 99 per cent of the population would perform better than you do.  Mr Ball adds that there would be an improvement in your full IQ assessment if you engaged in further educational and vocational training to improve your literacy and numeracy. Whilst in custody you have declined to do that. 

34Mr Ball opines you do not satisfy the criteria for mental illness or personality or mood disorder.  Mr Ball finds that you do suffer from severe stimulant alcohol and cannabis use disorders.  These disorders are a result of your personal choices to use drugs or abuse drugs. Mr Ball notes you have unresolved grief around your brother and father's death in 2004.  Mr Ball anticipates you are a risk to relapse to drug abuse on your release and recommends prevention treatment. 

35You have an extensive criminal history.  Your first appearance was for theft of a motor car in January 2006.  You have had seven court appearances for theft of motor cars prior to these offences.  You also have prior convictions for burglary and violence.  You offended on this occasion only two months after you were released from prison for the similar offending to the current offences.  Clearly, the 12 month sentence on the last occasion did not have sufficient specific deterrent effect on you. 

36You reported to Mr Ball and in respect of your co-accused Mr Benkic, you say as follows: 

"We met at school.  I dragged him into this shit with me." 

37This shows some insight on your behalf in relation to your offending. 

Sentencing Considerations

38The basic purpose for which a court may impose a sentence are just punishment deterrents, both specific and general, rehabilitation and denunciation of your actions and the protection of the community.  In sentencing you, I must have regard to a range of factors as such as the seriousness of your offending, your culpability for it and your personal circumstances. 

39I am required to balance the interest of the community in denouncing your criminal conduct with the interest of the community in seeking to ensure, as far as possible, that you, as an offender are rehabilitated and re-integrated into society. 

40I am also required to take into account current sentencing practices in fixing your sentence.  That enquiry is directed, particularly, but not exclusively to the kinds of sentences imposed in comparable cases and the statistics for those sentences.  I have considered the statistics and the current sentencing practices, mindful that each case must be considered in the light of its own particular circumstances, and many of the cases will be distinguishable from your case, as indeed they are from one another.  Nevertheless current sentencing practices are only one of the considerations I must take into account.

41You have pleaded guilty to these charges.  Your plea of guilty was indicated and it is acceptable in the prosecution at an early stage.  Your plea does have the utilitarian value of allowing for the orderly and effective administration of justice.  There is a certainty of outcome and a resolution of the substantive issues raised by your offending.  Your plea also allows for the preservation of important police resources to deal with other matters and your plea vindicates the public confidence in the legal process set up to protect the community. 

42Your plea is also a clear acknowledgement by you, that you accept responsibility for your criminal behaviour on these occasions.  Your plea also recognises you are willing to facilitate the course of justice in the community and I accept that your plea to these charges indicates and demonstrates some remorse on your behalf.

43There has been a delay between the resolution of your charges to a plea and the actual plea hearing on 5 December 2018.  The plea was indicated at committal stage at 17 September 2018.  No evidence was called at that hearing.  The prosecution accept this as an early plea as I said before.  You have served a total of 538 days of pre-sentence detention. 

44You have a lengthy criminal history commencing in 2006 with the theft of a motor car charge. You were released from prison approximately two months prior to these offences.  You have eight primary sentencing hearings encompassing the full range of driving, theft of motor cars, burglary, reckless conduct endangering serious injury, assault, false imprisonment and damage to property.   

45There are no prior convictions for drug offences, but you had given history to Mr David Ball of ice use over the last ten years.  You also have a pathological gambling problem around greyhounds and poker machines. 

46In respect to your gambling problem, you have used your time on remand to seek help and counselling from Julie Jensen.  Ms Jensen provided a report dated 28 February 2018, which was Exhibit “F2” on the plea and at the hearing, and a further email dated 29 October 2018, from Ms Jensen was also tendered and became part of Exhibit “F2”.

47I have taken into account Ms Jensen's report and your progress with gambling addiction when fixing your total sentence in this case.  Mr David Ball, Forensic Psychologist, prepared the report dated 6 March 2018.  Mr Ball's opinion was that you do not suffer from frank mental illness.  He stated you were intellectually impaired and found that your tested IQ, placed you in the mildly retarded range where 99 per cent of the population would perform better than yourself.  You are innumerate and illiterate.

48Mr Ball noted that you have unresolved grief around the death of your brother and father, which occurred some 14 years ago.  I take those matters into account when sentencing you. 

49On the issue of parity and sentencing with your co-accused Mr Benkic, the difference is that you have a far more extensive and a relevant history and you have served prison sentences before these offences.  Further you admit you dragged Mr Benkic into this criminality with you.  You are older than Mr Benkic. These differences combined with your more extensive criminal offending, make the parity principle a much smaller consideration than the usual co-offender position in sentencing.   

50Whilst you are of low intellectual functioning, you have on these occasions of offending, sourced vehicles, planned and executed burglary and theft of firearms and then gone to the extraordinary lengths to evade capture by the police. 

51I do not accept that your low mental functioning eliminates the specific deterrent aspect of the sentencing process here.  Further, the protection of the community is an important consideration where you have only been out of custody for two months, when you then committed these offences. 

52I regard your prospects of rehabilitation as guarded.  You have a limited capacity to function in respect of actions and consequences, particularly if gambling and drug taking is involved.  Your rehabilitation prospects will be enhanced if you are assisted by a strong and close presence of the Parole Board upon your release from prison. 

53Your need for housing, drug and gambling treatment, together with possible connections to NDIS upon release from prison, will be best managed by the Parole Board over an extended period rather than your direct release into the community. This will enhance the objective of protection of the community. 

54The seriousness of your offending is indicated by the following factors:

(1) Your prior relevant criminal history;

(2) Only four of the six firearms have been recovered;

(3) You stole firearms whilst you were a prohibited person under the Firearms Act;

(4) You encouraged or dragged others, in this case Mr Benkic, into the offending;

(5) You persisted with the course of escape, until you were literally run to ground; and

(6) The offending in your case extended over 20 days with five distinct sets of offending in that period.

55In fixing your total sentence I have cumulated that part of the instant sentence that properly reflects the additional criminality or aggravating feature involved in the additional offence committed at the same time.  I have applied the principle of totality in sentencing you, to ensure that the overall sentence is not a crushing sentence, whilst at the same time imposing a just punishment.

56Would you stand please?

57On Charge 1, you are convicted and sentenced to six months' imprisonment.

58On Charge 2, you are convicted and sentenced to six months' imprisonment.

59On Charge 3, you are convicted and sentenced to two years' imprisonment.

60On Charge 4, you are convicted and sentenced to two and a half years' imprisonment, that is the base sentence.

61On Charge 5, you are convicted and sentenced to 12 months' imprisonment.

62On Charge 6, you are convicted and sentenced to 12 months' imprisonment.

63On Charge 7, you are convicted and sentenced to 18 months' imprisonment. 

64On Summary Charge 1, you are convicted and sentenced to three months' imprisonment.

65On Summary Charge 10, you are convicted and sentenced to three months' imprisonment.

66On Summary Charge 39, you are convicted and sentenced to six months' imprisonment.

67And on Summary Charge 43, you are convicted and sentenced to six months' imprisonment.

68The cumulation is as follows.  As I say, the sentence of two and a half years is the base sentence, that is Charge 4.  On that sentence the following cumulations are to take place.  In respect of Charge 1, two months of that sentence.  In respect of Charge 2, two months of that sentence.  In respect of Charge 3, three months' of that sentence.  In respect of Charge 5, three months of that sentence.  In respect of Charge 6, four months of that sentence.  In respect of Charge 7, four months of that sentence.

69In respect of summary Charge 1, one month of that sentence.  In respect of summary Charge 10, one month of that sentence.  In respect of summary Charge 39, two months of that sentence.  And in respect of summary
Charge 43, two months of that sentence.

70On my mathematics that is a total effective sentence of four years and six months' imprisonment.  I fix a non-parole period of three years before you are eligible for parole.  But for your plea of guilty, I would have sentenced you to six years, with a non-parole period of four.  I declare that you have served 538 days pre-sentence detention.  On Charge 6 and summary Charges 1 and 10, all licenses as in to drive a motor vehicle are cancelled and you are disqualified for a period of two years.

MR NIBBS:If I can correct you on one point. 

HIS HONOUR:  Yes.

MR NIBBS:The PSD as of today is 539 days.

HIS HONOUR:  Sorry, 539 days, thank you.  So I have changed that.  The
pre-sentence detention is 539 days. Is the calculation right?

MR NIBBS:Yes Your Honour.

HIS HONOUR:  You can take a seat Mr Fulham.

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