Director of Public Prosecutions v Gatt
[2015] VCC 886
•26 June 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 14-01076
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| STEVEN GATT |
---
| JUDGE: | HIS HONOUR JUDGE LACAVA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 2 February - 24 February 2015 |
| DATE OF SENTENCE: | 26 June 2015 |
| CASE MAY BE CITED AS: | DPP v Gatt |
| MEDIUM NEUTRAL CITATION: | [2015] VCC 886 |
REASONS FOR SENTENCE
---Subject: Multiple charges of theft.
Catchwords:
Legislation Cited:
Cases Cited:
Sentence: 4 1/2 years' imprisonment. Non-parole period 3 years'---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions For the Accused | Mr M. Perry Mr T. Strong |
HIS HONOUR:
1Steven Gatt, you have pleaded guilty to one charge of theft of a motor vehicle, Charge 12. When you pleaded guilty to this charge, it was in front of a jury that was empanelled to hear 15 further charges in an indictment to which you pleaded “not guilty”.
2After a trial the jury convicted you of six further charges of theft, Charges 1, 3, 4, 7, 11 & 13; and one charge of handling stolen goods, Charge 6; and one charge of cultivate a narcotic plant, namely Cannabis L, Charge 15.
3The jury was unable to reach a verdict on charges, 2, theft; 5, theft; 8, theft;
9 & 10, handle stolen goods; 14, possession of equipment used to make identification documentation; and 16, traffic in a drug of dependence, Cannabis L. The Director will file a notice of discontinuance on the other charges.4The jury verdicts on Charges 6 and 7 were unanimous. The verdicts on charges 1, 3, 4, 11, 13 and 15 were majority verdicts.
5The maximum penalty for theft is ten years' imprisonment. The maximum penalty for handling stolen goods is 15 years' imprisonment. The maximum penalty for cultivation of a narcotic plant, where the court is satisfied that the cultivation was for the purposes of trafficking, is 15 years' imprisonment.
6The prosecution case was that you committed the offences of which you have been convicted with a co-offender, who I will refer to by the pseudonym "Glenn Austin". Austin pleaded guilty to a number of offences and gave evidence for the prosecution in your trial.
7Austin pleaded guilty to each of the charges in Indictment D12112822. That indictment contained six charges of theft, Charges 1 to 5 and 8; four charges of handling stolen goods, Charges 6 and 7, and 10; cultivating a narcotic plant, Charge 11; possession of equipment used to make identification documentation, Charge 14; and two charges of possession of firearms, Charges 12 & 13.
8I sentenced Austin to a total effective sentence of three years' imprisonment and directed that he serve a minimum term of 15 months before being eligible for release on parole. For sentencing purposes Austin differed from you in a number of respects. He is younger than you and has fewer relevant prior convictions. Notable amongst these is that in 2003 you were sentenced in this court for similar offending. Austin pleaded guilty to the charges and
co-operated with the prosecution and gave an undertaking to give evidence against you. He kept that undertaking and the jury clearly accepted the evidence he gave, as reflected by its verdicts on the charges, it was able to decide that you were guilty of. The charges in the indictment that Austin pleaded guilty to were negotiated in a plea indictment and those charges differed in some respects to the charges that you have been convicted on. Importantly, Austin was remorseful. You have shown no remorse.9Whilst you cannot be punished for exercising your right to contest the charges which you have been convicted of, you also cannot expect to receive a reduction in sentence that would have normally been applied had you pleaded guilty to the charges. You are entitled to a reduction in sentence in respect of Charge 12, theft of a motor vehicle.
10The jury must be taken to have accepted Austin’s evidence that he met you when you employed him at an abattoir which you owned or controlled at Millicent in South Australia. Austin was then a young man who had completed an apprenticeship as a diesel mechanic. He had the necessary skills to perform maintenance on machinery. He could work on trucks and other stolen items and change their identity.
11Austin was also a drug user, as were you, and use of the drug ice was something that you had in common. Soon you were paying him in ice and you maintained an expensive ice habit.
12Austin’s evidence, which the jury must be taken to have acted upon, was that you and he agreed to steal vehicles and trailers and other items to order, that is, you would find a buyer for a stolen vehicle in advance and then steal the vehicle and change its identity and supply it to a purchaser. By this means it was planned to source money to pay for the supply of ice for the ice habit that you and Austin had both acquired. You set up a base from which to operate this business, which was also used as a place for Austin and, at times yourself and your partner to live. The base also served as a place to grow a cannabis crop, which the two of you cultivated for the purposes of trafficking as another, hopefully alternative, source of money.
13In your abattoir business you owed one, Trevor Borden, money. He had supplied you with pigs that you did not pay for. When your business collapsed financially, you persuaded Borden to permit you and Austin to store large vehicles and items of equipment that you and Austin had stolen at his remote property at Watchem West in North Western Victoria.
14Borden told the jury that he did not know that items brought to the property, either by you or Austin or by the both of you together, were stolen. He gave evidence that you and your girlfriend were present at his property from time to time when the items stolen were also at the property. You were the link that introduced Austin to Borden and you generally would come and go, to and from the property, whilst Austin generally remained living there.
15Borden’s evidence was most unsatisfactory in many ways and especially on the question of his knowledge that the trucks and other equipment found at the property were stolen. However he generally gave what I consider to be satisfactory evidence about your presence at the property from time to time.
I record matters about Borden only to put your offending in context.16The items stolen or handled in the charges that you have been convicted of were found at Borden’s property by police. Those items consisted of large prime movers and articulated trailers, a caravan and other equipment. The items stolen were valuable and doubtless expensive to replace. Photographs of each of the items stolen and found at Watchem West were taken and went into evidence.
17In Charge 1 you and Austin stole a new Supreme caravan and took it to Watchem West where it was stored in a large shed. Austin lived in the caravan and it was found at the property when raided by police. Austin described to the jury how the both of you stole the caravan from a yard where caravans are sold in Campbellfield. Austin also told the jury that the both of you stole two further caravans on the same night. The caravans he said were first taken to your parents’ home, located on several acres of land at Rockbank, and one was taken to Watchem West and the other two were sold by you to persons unknown. The jury could not decide on the evidence and were unable to agree on a verdict on Charge 2, which is the charge that relates to the two further caravans. They clearly accepted Austin’s evidence that relates to the caravan found at Watchem West, Charge 1.
18Charge 3 relates to a large refrigerated trailer that is towed by a prime mover. Austin told the jury how you and he stole this item, towing it away from where it was parked on the side of the road by a prime mover, also stolen, and taking it to Watchem West, where it was backed into a shed and then used to set up an elaborate hydroponic cannabis growing operation inside of it. The hydroponic crop and equipment was all photographed on site in situ and presented as evidence.
19You were originally charged and committed for theft of the prime mover, as well as the refrigerated trailer, but by oversight, the prosecution left this charge off the indictment. The error was realised after the trial had commenced and evidence was being called and after you had pleaded not guilty in front of the jury panel. I refused an application to amend the indictment to add a charge that related to this vehicle, which was the subject of clear evidence from Austin. I did so because I was of the opinion that to permit the application would be prejudicial to you.
20The cannabis crop was the subject of Charge 15. Austin told the jury and
I accept that the purpose of the elaborate hydroponic crop found growing inside by police was to grow the drug for trafficking. He said that the plan that you both had was to steal expensive items of trucks and machinery and sell these to finance your expensive ice habits and when the cannabis crop was growing, to sell the crop and use the proceeds from that to pay for your ice habits, thereby avoiding the need to continue to steal items for sale.21You played an active role in the cultivation, obtaining the cuttings for initial seedlings and providing Austin with the knowhow of how to set up the hydroponic crop. I sentence you on Charge 15 on the basis that the cultivation was for the purposes of trafficking. There were 111 plants in all located at the shed in Watchem West. Of these 73 plants were 2 feet tall,
38 plants were drying. The potential street value of each plant is around $2,500, valuing the crop at around $180,000.22Charge 4 relates to a Isuzu truck that you stole and took to Watchem West. You stole that truck on the night the Supreme caravan was stolen. Again Austin told the jury that you used that truck to tow away a caravan, whilst he towed another with a separate vehicle. The jury did not reach a verdict on Charge 2, which related to the second and third caravans, but did convict you in relation to this truck which was found at Watchem West when it was raided by police.
23Charge 6 related to various items of equipment also found at Watchem West. Austin gave evidence as to how he stole these items to be used for various criminal purposes agreed with you and you agreed to this course. His clear evidence was that the items were taken to Watchem West with your agreement and that you knew them to have been stolen by him.
24Charge 7 relates to the theft of a tip truck and a bobcat located in the back of it. Austin gave evidence that you and he stole these items and took them to Watchem West, where they were both found.
25Charge 11 relates to the theft of two generators and a trailer belonging to a company, Grain Corp. Again Austin gave evidence that you and he stole these items and took them to Watchem West where they were both found. The purpose of stealing the generators was to generate power for the hydroponic set up that you and Austin had established in the back of a refrigerated trailer.
26Charge 13 relates to the theft of a Sherwell field bin used for the storage of grain. You and Austin stole this for the purposes of giving it to Borden in part reduction of the debt you owed him for pigs supplied by him to you.
27As I mentioned earlier you have a significant number of prior convictions from 12 previous court appearances between 1997 and 2011. Many are offences of dishonesty. In 1997 you were first convicted of handling, receiving and retaining stolen goods. In February 1999 you were again convicted of similar offending, including theft of motor vehicles. In March 2003 in the Bendigo County Court you were convicted of two counts of burglary, traffic cannabis, five counts of theft, criminal damage and handling and receiving. You were then sentenced to a total effective sentence of seven and a half years', with a non-parole period of five years'.
28There was a five year gap between October 2003 and September 2008 when you did not offend. I accept your offending seems to be directly related to taking drugs. That is not an excuse but part explanation. You know the risk associated with taking drugs and you have made a voluntary choice to go down that path. The consequences that follow are matters for which you alone must accept full responsibility. It is clear to me that the sentence I pass must have appropriate application of the principle of specific deterrence, in order to stop you re-offending again in this way.
29I turn to your back ground. You were born on 4 September 1977 and are 37 years of age. You are unemployed and have been on remand for these and other matters for some time. Throughout the trial in Bendigo and on your plea, you have been supported in court by your parents, siblings and friends.
30I was told and accept that after you were released from prison in late 2005 you were drug free and you did not re-offend for some time. Save for a conviction for drive whilst disqualified in September 2008, you did not
re-offend until October 2011.31You formed a relationship with a woman in 2003 and there are two children of that relationship, now aged 12 and eight years respectively. You married your partner approximately eight years ago after recommencing your relationship after release from prison.
32When you were released from prison in late 2005, you had work and with financial assistance from your family, you worked to set up an abattoir in Millicent in South Australia. I was told and accept your parents borrowed $500,000 to assist you to establish this business, which was set up in early 2007. The business grew and was at first successful and employed about 30 people. I was told and accept that between 2008 and 2010 the business was making good profits and you were earning up to $15,000 per week. But you had a number of unreliable drivers and you had increased pressure put upon you and increased demands put upon you. You resorted to using ice to keep you awake and that was the beginning of your latest downfall. I was told and accept you had a period in your life where you would binge on ice for days, followed by days when you would not use the drug.
33The consequences for you and your family have been disastrous. The business became insolvent and your parents lost the money they had invested in your business.
34One of your employees was Heidi Donglemans, then aged 17 or 18. She too was an ice user, who had herself had a difficult upbringing in an unfortunate family background. She suffers from schizophrenia. You formed a relationship with her and she was with you during this offending, often going with you to Watchem West. Your marriage broke up.
35During the course of your relationship with Ms Donglemans, her mental health deteriorated. I accept that you supported Ms Donglemans during this period, as well as having the associated financial problems with the failure of your business. You owed people money, including about $80,000 to Trevor Borden, whom I referred to earlier. This is what lead to your offending, including other offences of which you have been charged, not relevant here as prior convictions.
36I admitted into evidence a medical report from Dr Adam Deacon that details the mental illness suffered by Ms Donglemans. I accept that up until you were taken into custody on other unrelated charges in January 2015, you were her carer. I revoked your bail on these matters on 9 February this year and you have now served 137 days pre-sentence detention for these offences.
37I also admitted into evidence a medical report from Dr Deacon that relates to you. You told Dr Deacon that you had previously been diagnosed as suffering from schizophrenia and that you had been suffering psychotic episodes and hallucinations, resulting in psychiatric admission. Dr Deacon carefully noted that your mental illness was a matter of self-report which has not been corroborated by previous psychiatric inpatient admission clinical notes or of on-going management with general practitioners. Dr Deacon noted that your mental health issues self-reported were quiescent during your offending and were irrelevant in regards to the offences. He noted that you were coping adequately in prison, although you continue to complain of auditory hallucinations and paranoid ideation. He concluded that your mental health needs appear to be adequately managed in prison. I was told and accept that you are working in prison and are otherwise in good physical health.
38After the plea was concluded I was provided by your counsel with a copy of your health records from prison, which reflect that you have been prescribed anti-psychotic medication, olanzapine, a drug often used in the treatment of schizophrenia. Your counsel did not make further submissions about the clinical notes. There is no properly recorded or corroborated formal diagnosis of you suffering from schizophrenia and the only medical records referring to such a diagnosis are from your self-report, which I do not accept. You may be suffering from some form of mental illness not diagnosed, but I am not satisfied you are receiving appropriate treatment and I do not accept that your time in prison has been shown to be more burdensome.
39The issue of whether or not you suffer from schizophrenia is something that has only recently been raised and there is no evidence that you were so affected, either in this offending or in your extensive list of prior matters. Had it been the fact you have been a long term sufferer and had received treatment, there would be proper records available yet none are produced.
I have taken all of the evidence relating to your background and health into account, but until proper evidence is produced that you suffer from schizophrenia, I do not accept that you do.40In sentencing I must have regard to a number of matters, such as the seriousness of the offences involved, your culpability for it, your circumstances and those of the victim, if any. I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that as far as possible, offenders are rehabilitated and reintegrated into society.
41Your offending here was serious. It was organised, systematic and extended over a six to seven month period from January to July of 2013. Your motivation was to raise money to pay back debt to Borden and to finance your drug habit. Neither motive justifies or excuses the offending. I am satisfied you were the ring leader and Austin who was much younger and inexperienced in life and was sucked in by you, mainly because you seem to have had a continuous supply of the drug ice to satisfy his habit. None of the victims put in victim impact statements. Any sentence upon you must reflect proper application of the principle of general deterrence, so that others are deterred and having regard to your extensive criminal history, specific deterrence.
42I cannot say that you will not re-offend. Your prospects for rehabilitation all depend on whether or not you can remain drug free. To your credit, you have shown in the past that you can remain drug free for some years and this is encouraging, so there is some prospect that you can be rehabilitated. It depends on your motivation to remain drug free. In addition I have been impressed by the ongoing support you enjoy from your parents and friends and whilst they continue to support you, that adds to the hope that you can turn yourself around. You still have a number of years ahead of you and you can still have a good life out of prison for many years and possibly achieve a great deal if you want to. Whether or not this is so is entirely a matter for you.
43Would you please stand, Mr Gatt.
44On Charge 1, theft of the Supreme caravan, you are convicted and sentenced to a term of imprisonment of 12 months'.
45On Charge 3, theft of theft of a refrigerated trailer, you are convicted and sentenced to a term of imprisonment of two years'.
46On Charge 4, theft of an Isuzu truck, you are convicted and sentenced to a term of imprisonment of 12 months'.
47On Charge 6, handling stolen goods, being a mobile cool room, generators, and other items of equipment, you are convicted and sentenced to a term of imprisonment of 12 months'.
48On Charge 7, theft of a tip truck and bobcat, you are convicted and sentenced to a term of imprisonment of 18 months'.
49On Charge 11, theft of two generators and a trailer, you are convicted and sentenced to a term of imprisonment of 12 months'.
50On Charge 12, theft of a Toyota Land Cruiser, you are convicted and sentenced to a term of imprisonment of nine months'.
51On Charge 13, theft of a Sherwell field bin, you are convicted and sentenced to a term of imprisonment of 12 months'.
52On Charge 15, cultivate a narcotic plant, cannabis, you are convicted and sentenced to a term of imprisonment of two years'.
53I direct that 12 months of the sentence imposed on Charge 15; and six months of the sentences imposed on each of Charges 1 and 7; and three months of the sentences imposed on each of Charges 4 and 12, cumulate upon the sentence imposed on Charge 3, making a total effective sentence of four and a half years' imprisonment.
54I direct you serve a minimum term of three years' before being eligible for release on parole.
55I declare that there has been 137 days pre-sentence detention and that be entered into the records of the court and be reckoned as having been already served under the sentences passed this day and deducted administratively.
56For the purposes of Charge 12 and s.6AAA of the Sentencing Act, I say that had it not been for your plea of guilty to that charge, I would have imposed a term of imprisonment of 12 months'.
57I have signed the forfeiture orders, which are not opposed and that relates to items found at Watchem West.
58Are there any matters arising out of that, Mr Perry?
59MR PERRY: I believe, Your Honour, it was flagged on the hearing of the plea, that an application would also be made for a sample of DNA from the accused man.
60HIS HONOUR: Yes.
61MR PERRY: I don't know if Your Honour received draft orders?
62HIS HONOUR: I don't think we have. I thought I was told on the plea that they had already been a forensic sample. I am not sure about that. I certainly did not have a note of it.
63MR PERRY: I don't have a note of it, Your Honour, but perhaps by agreement of the parties, I don't anticipate it will be difficult. If the enquiries indicate otherwise, perhaps copies could be sent to Your Honour in chambers.
64HIS HONOUR: Well having regard - the first thing is that they are - there are a number of forensic sample offences - - -
65MR PERRY: Right.
66HIS HONOUR: - - - in the matters of which Mr Gatt has been convicted of. They are serious matters. Having regard to the nature of them, I would be inclined to make the order. Do you oppose that - - -
67MR STRONG: Because I'm certainly not opposing, Your Honour. I accept it's appropriate.
68HIS HONOUR: Do you need to get instructions? Do you need to get instructions from Mr Gatt?
69MR STRONG: Well, no, Your Honour, it's appropriate.
70HER HONOUR: Yes, well the order not being opposed, if that could be forwarded to my associate, Mr Perry, I will sign it.
71MR PERRY: Thank you, Your Honour.
72HIS HONOUR: Mr Gatt, I have been asked to sign what's called a forensic sample order, which you have heard that your counsel does not oppose. Having regard to the seriousness of your offending, I am obliged to make the order, which means that having signed it, a member of the police force can use reasonable force to take a sample from your body. It is in fact a swab from your mouth.
73Any matters arising out of that, Mr Strong?
74MR STRONG: No, Your Honour.
75HIS HONOUR: Very well. Yes, Mr Perry?
76MR PERRY: Your Honour, I'd also seek leave of Your Honour to file the indictment with respect to the outstanding matters.
77HIS HONOUR: Yes.
78MR PERRY: The indictment is No.D13052054.2.
79HIS HONOUR: Yes.
80MR PERRY: I would like to seek leave to file that and at the same time announce that the director discontinues prosecution in respect to those matters and seek to file a notice of discontinuance relating to the same also.
81HIS HONOUR: Yes, I will give your instructor leave to file those documents and I direct that they be entered into the records of the court.
82MR PERRY: Thank you, Your Honour.
83
HIS HONOUR: Could you remove Mr Gatt please. Could you remove
Mr Gatt please.
84All right.
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