Director of Public Prosecutions v Gill

[2019] VCC 1602

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-00743

DIRECTOR OF PUBLIC PROSECUTIONS

v

GURWINDER GILL

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JUDGE:	HIS HONOUR JUDGE CAHILL
WHERE HELD:	Melbourne
DATE OF HEARING:	15 and 22 August 2019
DATE OF SENTENCE:	2 October 2019
CASE MAY BE CITED AS:	DPP v Gill
MEDIUM NEUTRAL CITATION:	[2019] VCC 1602

REASONS FOR SENTENCE
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Subject:

Catchwords:   nine commercial burglaries – theft of $541,000 of goods – hired labour – paid $7000 – used to feed heroin addiction - first offender – three years imprisonment – non-parole release period of one year 9 months

Legislation Cited:     Migration Act 1958 (Cth)

Cases Cited:Loftus v The Queen [2019] VSCA 24; Morgan v The Queen [2013] VSCA 33; Jomaa v The Queen [2014] VSCA 103; Elakkoumi v DPP [2017] VSCA 186

Sentence:                  3 years’ imprisonment, non-parole period of 1 year 9 months

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. Barrington	Mr G. Martin
For the Accused	Ms A. Hurst	Ms M. Goldberg

HIS HONOUR: 

1Gurwinder Gill, you have pleaded guilty to nine charges of burglary, nine of charges of theft and one charge of possess a drug of dependence.  You have also pleaded guilty to the summary offence of committing an indictable offence while you were on bail.  Between 8 June 2018 and 30 August 2018, you were involved with others in nine burglaries carried out late at night on commercial premises which were targeted for baby formula and vitamins intended for Asia. 

2On 8 June 2018, with others, you broke into Polar Express at Point Cook and loaded $90,000 worth of stock into a dual cab utility which you owned.  That conduct constitutes Charges 1 and 2. 

3On 21 June 2018, with others, you broke into Happy Market at Springvale and stole boxes of baby formula and vitamins valued at $17,000, Charges 3 and 4.

4On 27 June 2018, with others, you broke into SF Express at Port Melbourne and stole parcels of baby formula and the items valued at $17,000, charges 5 and 6.

5On 29 June 2018, with others, you broke into Blue Sky Express at Preston and stole parcels of baby formula and vitamins valued at $63,000, Charges 7 and 8. 

6On 14 July 2018, with others you broke into Giant Express Pty Ltd and stole baby formula and vitamins valued at $90,000, Charges 9 and 10. 

7On 24 July 2018, with others you broke into Ship Asia at Burwood and stole vitamins and cosmetics valued at $90,000, Charges 11 and 12. 

8On 25 July 2018, with others, you broke into 4PX at Preston and stole boxes of baby formula and vitamins valued at $60,000, Charges 13 and 14.

9On 6 August 2018, with others, you broke into FQ Trinity Pty Ltd and stole baby formula and vitamins valued at $24,000, Charges 15 and 16

10On 30 August 2018, with others, you broke into Sin Care Health Care at Mount Waverley where you stole pallets of baby formula and vitamins valued at $90,000, Charges 17 and 18.  CCTV film at the premises showed a white Isuzu truck was used to take the stolen goods away.  Police located the truck parked in the driveway of a St Albans home and, suspecting it contained the Sin Care stolen goods, sat off it.

11Later that morning, when you arrived in your car to collect the truck, which had been driven to Laverton North, police arrested you.  On your person and in your car they found a phone, knuckle dusters, $640 in cash, an angle grinder and a small bag of heroin.  Your possession of the small bag of heroin is the conduct constituted in Charge 19. 

12Police took you to Box Hill police station where you told them about the operations of the group which had targeted the premises for the theft of baby formula and other products and you identified yourself in CCTV images of offenders which police showed you.

13You told police you met Herdeep Singh, who, not known to you, police had arrested and charged.  You said that he introduced you to the organisers.  You said that Navinder was also involved, that is Navinder Singh who again, unknown to you, was also arrested on that morning and charged.  You said that a man by the name of Pavinder and others were involved.  You said that on
30 August you had gone to the premises at Mount Waverly and, with two of them, you loaded the Izusu truck with goods stolen from the premises and, afterwards, when the truck was driven to a Laverton North address and left there, others, who were suspicious police were watching the truck, asked you to drive by to check for them.  When you did, police arrested you.

14To police you admitted similar involvement in the other burglaries over a two to two and a half month period and you said you received $5,000 and $2,000 for your work. 

15You told police you had been battling a heroin addiction for two to three years and were in a rehabilitation program.  You said you paid $150 for the heroin found on you.  You also told police they would find at your home stolen items which others involved in the burglaries had left there.  At your house, police seized cosmetics, boxes of vitamin, beauty products, milk powder and phone promotional products with two identification cards and a bank card not in your name.

16You were charged and remanded in custody where you have remained until today. 

17You subsequently provided the police with a further statement which, as I was told by Mr Martin when he appeared, the prosecution, on 5 September, helped police to better understand the organisation behind the offending but the information you gave them would require substantial corroboration before police could make a decision to charge further individuals. 

18You have admitted a very limited criminal record.

19On 4 April 2016 in the Magistrates' Court at Sunshine you were convicted of driving whilst disqualified and stating a false name and fined $850.

20Ms Hurst who appeared on your behalf produced a psychological report dated 5 March 2019, of Carla Lechner, Exhibit G2.  The second report, dated 5 August 2019 of Ms Lechner, Exhibit G3.  Four references from family members, your father, your mother, your wife and brother, Exhibit G4.  A FirstStep letter dated 14 August 2019, Exhibit G5, a FirstStep letter dated 6 July 2018, Exhibit G6.  A general practitioners mental health treatment plan, dated 27 October 2017, Exhibit G7 and patient notes dated 3 January 2018, of Dr Sachin Corsig, psychiatrist, Exhibit G8.

21Your wife and your brother have supported you in court. 

22You were born on 30 March 1982 in Punjab, India near the Pakistan border into a Sikh family.  You have a younger brother.  Your parents are both teachers.  After you left school, you completed an Honours Degree in Food Science and Technology.  In 2006 when you were 24 years old, you came to Australia, on a student visa, and completed a Diploma in Commercial Cookery and Business Management at ANIBT.  You could not find work in the food quality field, so you worked casually at a pasta factory and then drove trucks for about four and a half years.

23You obtained permanent residency and were in a stable relationship.  Things were going well until in 2013 you broke up with your girlfriend.  You were angry and sad.  You went to live with friends who introduced you to heroin, which you used to mask the symptoms of your depression.  As your heroin use increased your work ethic decreased.  You told Ms Lechner you quit smoking heroin two to three times on your own by cutting ties with friends but typically relapsed when you reconnected with them. 

24Ms Hurst told me, to attempt to bring some stability into your life, your family arranged a marriage for you.  In 2014, you returned to India for the wedding and brought your wife to Australia.  She trained as a dietitian in India and is trying to get her qualifications recognised here.  She too has permanent residency.  You told Ms Lechner you love each other and from her demeanour in court I accept that you do.  She has stuck by you. 

25Prior to this offending you were working as a cleaner in business with your wife.  When your wife and your brother learned you were abusing heroin, they assisted you to get medical help.  Your general practitioner, Dr John Sherman, who specialises in treatment of addiction and mental illness put you on a mental health plan in October 2017.  You had been his patient from July 2012 at his Footscray practice.  You followed him to St Kilda when he moved there in October 2016 and between 5 October 2016 and 24 August 2018, you attended his practice, FirstStep on 34 occasions, seeing either Dr Sherman, a nurse or a case manager for pharmacotherapy for your addiction.

26Under the program you also saw a psychologist, Mr Joseph Zackmarie, for counselling and on 3 January 2018, you had seen a psychiatrist,
Dr Sachin Corsig, for treatment of your depression.  Your family also controlled your access to money to try to stop you from buying drugs.  To thwart their efforts and despite the medical interventions, you committed this offending to get heroin.  FirstStep records indicate you nevertheless continued to attend the program, which included seven sessions, between 13 June and 24 August, during the period of your offending.  You told Ms Lechner a friend, also a heroin user, told you you could make money by doing burglaries.  Initially you said no but, as your drug use increased, you said yes.  You said you were high on drugs when you committed the offences and you spent the money you received on drugs.

27In Ms Lechner's opinion you have symptoms of opioid use disorder and depression which, while you have been in custody, has worsened to a major depressive disorder.  She said you need counselling to deal with your drug addiction and develop strategies to deal with management of your depressive mood.  She wrote you have not been able to access any treatment programs whilst in custody and are becoming increasingly isolated with strong feelings of hopelessness and worthlessness.  Your presentation in court on the various days of your plea hearing corroborate her opinions and I accept them, particularly that your first experience in custody has significantly adversely affected your mental health.

28You have expressed shame and remorse for your actions and a desire to rehabilitate yourself.  You are currently detained at a low security prison where you have responsible and trusted work as a meal billet.  Your wife and your brother visit you on occasion but the distance makes this difficult.  You speak to your wife daily by telephone.  In prison, you are prescribed blood pressure medication and methadone for your drug addiction. 

29In oral and written submissions, Exhibit G1, your counsel relied on the following factors in mitigation of penalty.

30Firstly, your lesser role.  You were hired labour for and not a principal of the criminal syndicate which planned and carried out these burglaries. 

31Secondly, your lack of any relevant prior convictions,

32thirdly, your cooperation with police by making frank admissions and giving them other information about the organisation behind the offending,

33fourthly, your early guilty plea made on the morning of the committal hearing before any witnesses were called for cross-examination,

34fifthly, your remorse, evidence by your cooperation, guilty plea and expressions to others,

356 plea, your good prospects of rehabilitation taking into account the genuine steps you had taken prior to and during your offending to beat your drug addiction, your strong family support and the availability of accommodation and work to you following your release from prison.

36She also relied on the prospect of your deportation, firstly for the burden of the uncertainty you face and, secondly, the additional, substantial punishment will suffer if you are removed from Australia where, over a 12 year period prior to your offending, you had established itself in later life for your wife and you, and the consequent separation from your wife and brother.

37She also relied on the additional burden of imprisonment to you, a person incarcerated for the 1^st time, manifested by your deteriorating mental health.

38I accept the force of these submissions and have taken them into account to moderate the sentence I would otherwise have imposed. 

39She submitted I should impose a term of imprisonment of less than 12 months in combination with a lengthy community correction order so your permanent residency status is not jeopardised.  In the alternative she submitted, given your good prospects of rehabilitation, and to advance your successful reformation, I should order a lengthy parole period in respect of the gaol term I impose. 

40In discussion I referred Ms Hurst to the recent Court of Appeal decision of Loftus [2019] VSCA 24 where Acting President Whelan and Justice of Appeal Niall, after discussing the operation of s.501 of the Migration Act, the character test section which gives the minister power to cancel a visa said, at paragraph 81, and I quote:

'Although the potential that an offender may be deported following sentence is a relevant consideration in sentencing, that potential cannot control or dictate the sentencing outcome.  It would be an error for the sentencing judge to impose a sentence that would otherwise not be appropriate for the purpose of avoiding the operation of the Migration Act'.

41Mr Barrington, who appeared on behalf of the prosecution in the first instance, submitted, firstly, your lesser role as a hireling notwithstanding, your involvement in a well-organised gang which targeted business premises for specific products valued at $541,000 in total, participating as you did in nine burglaries over a period of nearly two months, was serious offending.  Secondly, that while breaking into private homes is generally seen as more heinous than breaking into business premises, the planning and professionalism attended to these commercial burglaries tended to close the gap in seriousness between the two classes of offences and, thirdly, that you committed some of these burglaries whilst on bail is an aggravating feature.

42I accept the force of these submissions and have taken them into account in reaching a conclusion that only a term of imprisonment is appropriate in your case. 

43Mr Barrington referred me to the Court of Appeal decisions in
Morgan [2013] VSCA 33, Jomaa [2014] VSCA 103 and Elakkoumi [2017] VSCA 186, together with a sentence in this court of Britton and Nguyen.  They are all instances of commercial burglaries and while there are differences in the gravity of offending and the subjective circumstances of the offender between them and your case, I found them a useful yard stick to guide me to an appropriate sentence.

44In determining the sentence I will impose, I have had regard to the circumstances of the offending and the personal circumstances of two co-offenders, Herdeep Singh and Navinder Singh, who pleaded guilty to burglaries and thefts at Blue Sky Express on 29 June 2018, at FQ Trinity Pty Ltd on
6 August 2018 and Singh Care Health Care on 30 August 2018.  Like you, they were recruited as hired labour and, like you, they offended to obtain money to buy drugs to feed an addiction. 

45Herdeep Singh had convictions for serious criminal offending and offended in this instance whilst he was on a community correction order.

46Both factors were relevant particularly to specific deterrence and rehabilitation.  I sentenced him to an aggregate term of 21 months' imprisonment for his involvement in the three burglaries and thefts on three commercial premises.

47Navinder Singh was a relatively young first offender.  He was 23 years of age.  I will sentence him tomorrow to an aggregate term of 16 months imprisonment on the three burglaries and thefts carried out at three commercial premises.

48You are to be sentenced effectively as a first offender.  While you are older than Navinder Singh, you had established yourself in Australia, longer, and made a life here for your wife and yourself.

49The burden of the loss of the opportunity to remain here will be greater for you.  Additionally, you gave full and frank answers to police questioning which the others did not. 

50In sentencing you, I will impose and aggregate sentence for the nine burglary and nine theft charges because they form part of a series of offences of the same character.  And because you are to be sentenced for multiple offences, I have had regard to the totality principle, that is, I have looked at the totality of your criminal behaviour to decide the appropriate sentence for all the offences.

51Mr Gill please stand.  By the sentence, I must announce your conduct.  I must punish you and deter you and others from committing crimes of the same or similar kind.  I must look to protection of the community and also to your rehabilitation.  Taking into account the circumstances of your offending and its effects, your personal circumstances and antecedence and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you, I sentence you as follows. 

52On the nine burglary charges, that is Charges 1, 3, 5, 7, 9, 11, 13, 15 and 17 and the nine theft charges, that is Charges 2, 4, 6, 8, 10, 12, 14, 16 and 18, you are convicted and sentenced to an aggregate term of three years' imprisonment.  On the charge of possess a drug of dependence, Charge 19, you are convicted and sentenced to one month's imprisonment.  And accepting you committed the dishonesty offences to feed your drug addiction, I direct the sentence be served concurrently with the aggregate term and the other sentence I impose which is in respect of the summary offence of committing an indictable offence whilst on bail, you are convicted and sentenced to one month's imprisonment, which is also to be served concurrently with the other sentences I have imposed.

53So, your total effective sentence is three years' imprisonment.  To mitigate your punishment and to advance your chances of rehabilitation, which I assess to be very good, I fix a non-parole release period of one year and nine months. 

54I declare you have served 398 days by way of presentence detention.

55But for your plea of guilty, I would have sentenced you to three years, nine months' imprisonment and fixed a non-parole release period of two years and six months. 

56I make an order for disposal of the items of property police seized in terms of the order filed and I make an order for forfeiture of the home made pistol police seized in the terms of that order filed. 

57Mr Gill, because I accept you will almost inevitably be removed from Australia when you have completed your prison sentence, I see no efficacy in making an order under s.464ZF for the taking of a forensic sample from you.  Accordingly I decline to make the order because I am not satisfied that it is in the interests of justice to do so.  Please have a seat.  Mr Martin, are there any other matters?

58MR MARTIN:  There should have also been a forfeiture order for the money seized upon arrest.

59HIS HONOUR:  I see.

60MR MARTIN:  If not, I will certainly have that re-lodged.

61HIS HONOUR:  There is no objection to that forfeiture is there, Ms Hurst?

62MS HURST:  No, Your Honour.

63HIS HONOUR:  Mr Gill, I am not sure that I actually have the order here but we better check what it is that is actually to be forfeited.  Thank you.  Yes, I also make an order for forfeiture and disposal of two amounts of cash, $150 and $640.  Thanks.  Any other matters, Mr Martin?

64MR MARTIN:  No, Your Honour.

65HIS HONOUR:  Ms Hurst?

66MS HURST:  No, Your Honour.

67HIS HONOUR:  Thank you both.  You may remove Mr Gill please.  Mr Devine, I will stand down temporarily.

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