Director of Public Prosecutions v Graham
[2024] VCC 382
•26 March 2024
| IN THE COUNTY COURT OF VICTORIA AT BENDIGO CRIMINAL JURISDICTION | Revised Not Restricted Suitable for Publication |
CR-23-01884
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DAMIEN GRAHAM |
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JUDGE: | HIS HONOUR JUDGE GAMBLE | |
WHERE HELD: | Bendigo | |
DATE OF HEARING: | 20 March 2024 | |
DATE OF SENTENCE: | 26 March 2024 | |
CASE MAY BE CITED AS: | DPP v Graham | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 382 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence.
Catchwords: Burglary – Theft – Attempted burglary – Intentionally damaging property – Possession of methylamphetamine – Going equipped to steal – Deal with property suspected of being proceeds of crime – Possession of prohibited weapon without exemption or approval – Unlicensed driving – Careless driving – Use of unregistered motor vehicle.
Legislation Cited: Control of Weapons Act 1990, s 5AA; Crimes Act 1958, ss 74, 76, 91, 195, 197, 321M; Drugs, Poisons and Controlled Substances Act 1981, s 73; Road Safety Act 1986, ss 7, 18, 65; Sentencing Act 1991, ss 6AAA, 9, 89.
Cases Cited:Bugmy v The Queen (2013) 249 CLR 517; R v McKee and Brooks (2003) 138 A Crim R 88.
Sentence: Total effective sentence of three years and eight months’ imprisonment with a non-parole period of two years and eight months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. Cordy | Office of Public Prosecutions |
| For the Accused | Ms A. Patterson | Kate Freshwater Lawyers |
HIS HONOUR:
Introduction
1Mr Graham, the indictment to which you have pleaded guilty,[1] contains the following 15 charges:
·Four of burglary;[2]
·One of attempted burglary;[3]
·Eight of theft;[4]
·One of intentionally damaging property;[5] and
·One of possession of a drug of dependence, namely methylamphetamine.[6]
[1] Indictment 202311591.
[2] Charges 2, 5, 7 and 11, pursuant to s 76(1) of the Crimes Act 1958 (Vic).
[3] Charge 10, pursuant to ss 321M and 76(1) of the Crimes Act 1958 (Vic).
[4] Charges 1, 3, 4, 6, 8, 9, 12 and 13, pursuant to s 74(1) of the Crimes Act 1958 (Vic).
[5] Charge 14, pursuant to s 197(1) of the Crimes Act 1958 (Vic).
[6] Charge 15, pursuant to s 73(1) of the Drugs, Poisons and Controlled Substances Act 1981 (Vic).
2The maximum penalty for each of theft, burglary and intentionally damaging property is 10 years’ imprisonment. For attempted burglary, it is five years’ imprisonment. For possession of a drug of dependence, it is the lower of the two available maximum penalties, namely one year imprisonment or a fine of up to 30 penalty units, since I am satisfied on balance that the methylamphetamine was not possessed by you for any purpose related to trafficking – essentially for the same reasons as were relied on by defence counsel in her further written submissions.[7]
[7] See s 73(1)(b) of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) and Defence Further Submissions dated 22 March 2024 at paragraph 4 (exhibit 5).
3You have also consented to this court hearing and pleaded guilty to the following six related summary offences:
·Going equipped to steal;[8]
·Dealing with property suspected of being proceeds of crime;[9]
·Possession of a prohibited weapon without exemption or approval;[10]
·Unlicensed driving;[11]
·Careless driving;[12] and
·Using an unregistered motor vehicle.[13]
[8] Summary Charge 4, pursuant to s 91(1) of the Crimes Act 1958 (Vic).
[9] Summary Charge 18, pursuant to s 195 of the Crimes Act 1958 (Vic).
[10] Summary Charge 20, pursuant to s 5AA of the Control of Weapons Act 1990 (Vic).
[11] Summary Charge 22, pursuant to s 18(1)(a) of the Road Safety Act 1986 (Vic).
[12] Summary Charge 23, pursuant to s 65 of the Road Safety Act 1986 (Vic).
[13] Summary Charge 24, pursuant to s 7(1)(a) of the Road Safety Act 1986 (Vic).
4The maximum penalty for each of going equipped to steal and dealing with property suspected of being proceeds of crime is two years’ imprisonment. For possession of a prohibited weapon, it is two years’ imprisonment or a fine of up to 240 penalty units. For unlicensed driving, it is six months’ imprisonment or a fine of up to 60 penalty units.[14] And, for careless driving and using an unregistered motor vehicle, which in your case are subsequent offences, it is a fine of up to 12 penalty units and 50 penalty units, respectively.
[14] The exceptions contained in ss 18(2), (2A) and (3) of the Road Safety Act 1986 (Vic) are not applicable.
5You were 32 years of age when you committed these offences. You are now 33, having been born in October 1990.
Circumstances of the offending
Overview
6The circumstances of your offending are set out in the typed prosecution opening[15] and were discussed during the course of the plea hearing. For present purposes, your offending can be summarised as follows.
[15] Exhibit A.
7In the period between 9 November 2022 and 8 March 2023, you committed a total of 21 offences, including but not limited to, four burglaries and related thefts, an attempted burglary, four thefts of motor vehicles and criminal damage.
Charge 1
8On 10 November 2022, you purchased what you knew to be a stolen Toyota Hilux vehicle from an associate for $500. Your possession of that vehicle with that knowledge forms the basis for the offence of theft, alleged in Charge 1.[16]
Charges 2 and 3 and Summary Charge 4
[16] The vehicle was stolen by unknown offenders the previous day and was owned by a man named Patrick Nicholson.
9At approximately 4:45 am on 13 November 2022, you and an unknown co-offender drove to the Ampol Service Station in California Gully in a stolen black Ford sedan vehicle bearing false registration plates.
10After exiting the vehicle, the two of you smashed the front glass door using a sledgehammer, causing approximately $500 worth of damage. You were both wearing gloves while your co-offender also disguised his face with a mask. Your possession of the sledgehammer and gloves forms the basis for the offence of going equipped to steal, alleged in Summary Charge 4.
11After forcing entry, the two of you stole approximately 60 to 70 packs of cigarettes from the cigarette cabinet behind the counter and a further 20 to 30 packs from the store office area, the combined value of which was about $10,000. You also stole several phone chargers from a display area. That conduct forms the basis for the offences of burglary and theft, alleged in Charges 2 and 3, respectively.
12The two of you then left the scene in the same stolen black Ford sedan.
13When later interviewed by police, you admitted to knowing that the black Ford sedan had been stolen from Kyabram.[17] Your possession and use of that vehicle with that knowledge forms the basis for the offence of theft, alleged in Charge 4.
[17] The vehicle was owned by a woman named Faye Noonan.
14A later police inspection of that vehicle located your fingerprint on the inside of a passenger side window.
Charges 5 and 6
15At approximately 3:33 am on 16 November 2022, you and a co-offender attended the Maryborough Golf Club in the same stolen black Ford sedan.
16On this occasion, you were both dressed in hooded clothing and wearing gloves and face masks.
17You gained entry by using a sledgehammer to smash a window adjacent to the front door. You were then able to gain entry to an office by kicking a hole in a door, after which you stole approximately $200 in cash. The entire incident only lasted a few minutes. The two of you left the scene in the same stolen black Ford sedan. Your conduct as just described forms the basis for the offences of burglary and theft, alleged in Charges 5 and 6, respectively.
Charges 7 and 8
18At approximately 5:52 am on 23 November 2022, you, the unknown co-offender and another co-offender named Ashleigh Awege, attended Harro’s Car Wash in the same stolen black Ford sedan. By this time the registration plates had been removed. After exiting the vehicle wearing hooded clothing and gloves, you and Ms Awege gained entry to the premises by using a sledgehammer and crowbar.
19A neighbour who was in bed at the time heard loud banging coming from the car wash. When he looked out the window, he saw a black car with two people running around and a third person in the driver’s seat. He then heard the alarm going off and saw you and Ms Awege running in and out of the building and putting things into the vehicle. He then approached the driver’s side of the vehicle and tried to grab the keys from the ignition before running off. Two members of your group then gave chase but ultimately gave up and returned to the vehicle. After returning home, the neighbour rang Triple 0 and reported the matter. Ultimately, you and your two co-offenders departed the scene in possession of approximately $3,500 in coins that you had stolen from the coin machine. The conduct just described provides the factual basis for the offences of burglary and theft, alleged in Charges 7 and 8, respectively.
Charge 9
20On 27 December 2022, you gained possession of and used what you knew to be a stolen blue Mitsubishi Lancer motor vehicle valued at approximately $20,000, which gives rise to the offence of theft, alleged in Charge 9.
Charge 10
21At approximately 12:35 am on 28 December 2022, you, and an unknown male co-offender and another co-offender named Brianna Oliver, attended at Shiners Car Wash in Mooroopna in that same stolen blue Mitsubishi vehicle. You were all wearing hooded clothing and gloves. After exiting the vehicle, all three of you made an unsuccessful attempt to gain entry to the premises by using a sledgehammer and crowbar on the door adjacent to a change machine. Only moments after returning to the vehicle, the three of you made a further unsuccessful attempt to gain entry before finally leaving the premises. This conduct forms the basis for the offence of attempted burglary alleged in Charge 10.
Charges 11 and 12
22Following the attempted burglary, you immediately attended the BP Service Station in Mooroopna where you smashed your way through a window and 'staff only' door and then stole $2,100 in cash. That conduct constitutes the offences of burglary and theft, alleged in Charges 11 and 12, respectively.
Charge 13
23On 25 January 2023, you and an unknown co-offender stole a 2006 Toyota Hilux Ute which had been left unattended with the keys in the ignition in a paddock in Rochester. You then sold it for $250. This conduct provides the factual basis for the offence of theft, alleged in Charge 13.
Charge 14 and Summary Charges 22-24
24At approximately 10:00 am on 23 February 2023, a male named Daniel Rayner was reversing his silver VY Holden Commodore vehicle out of the driveway of a friend’s house located in Boothman Street, Echuca. As he did so, you drove a white VS Holden utility vehicle up onto the nature strip of the neighbour’s address and then towards Mr Rayner’s vehicle before stopping. In response, Mr Rayner exited his vehicle and approached, recognising you as a person he had known for some years. You then reversed onto the road and then crashed your vehicle into the rear of his vehicle while he was inside it, causing substantial damage.
25You then drove to the end of the street, before turning around. Meanwhile, Mr Rayner had armed himself with a metal bar and had started walking towards you. After arming yourself with a hammer, there was a verbal altercation during which each of you attempted to strike the other.
26After getting back into your vehicle, you ended up reversing it into the rear of Mr Rayner’s vehicle, causing damage to the rear driver’s taillight. You then drove off in a westerly direction with Mr Rayner pursuing you in his vehicle. When he caught up to you, you did a U-turn and then rammed your vehicle into the driver’s side of his vehicle, causing damage to the side and front rim and mirror. You then drove off for a final time.
27The incident was captured on CCTV and filmed by a friend of Mr Rayner’s. Mr Rayner subsequently called Triple 0.
28The damage you caused to Mr Rayner’s vehicle forms the basis for the offence of intentionally damaging property, alleged in Charge 14.
29The manner in which you drove while in Boothman Street provides the factual basis for the offence of careless driving alleged in Summary Charge 23.
30At the time of this incident, you held no driver’s licence and the white VS Holden utility vehicle was unregistered, hence the basis for the offences of unlicensed driving and use an unregistered motor vehicle alleged in Summary Charges 22 and 24, respectively.
Arrest
31On 8 March 2023, police found you asleep in that unregistered white Holden utility while it was parked on McSwain Road in Echuca.
Charge 15 and Summary Charges 18 and 20
32During your arrest, the following items were located in your possession:
·Jewellery, assorted power tools and $2,149.55 in cash, which provides the factual basis for the offence of dealing with property suspected of being proceeds of crime alleged in Summary Charge 18;
·An extendable baton, laser, taser and flick knife which provides the factual basis for the offence of possession of prohibited weapon without exemption or approval alleged in Summary Charge 20; and
·A zip lock bag containing approximately 42 grams of methylamphetamine which provides the factual basis for the offence of possession of a drug of dependence, alleged in Charge 15.
Interview
33You were interviewed by police on 9 March 2023.
34During that interview you were co-operative and made a number of significant admissions, including the following:
·You believed you had been involved in the burglary of the Ampol Service Station and remembered stealing some smokes;
·You were present when the Ford sedan was stolen in Kyabram, and had travelled in it on a number of occasions while knowing that it was stolen;
·You had driven to that location in Kyabram in what you knew to be a stolen Toyota Hilux that you had bought for $500;
·You were involved in the burglary and theft of money at the Maryborough Golf Club after driving there in the stolen Ford sedan;
·You were involved in the burglary at Harro’s Car Wash and had driven there in the stolen Ford sedan. You used a bent crowbar to break into a coin machine and stole what you believed was about two to $3,000 in coins;
·After becoming aware that the blue Mitsubishi Lancer had been stolen from Kangaroo Flat on 27 December, you drove it to Mooroopna where you made an unsuccessful attempt to break into a coin machine at the Shiner’s Car Wash, and then drove it to the BP service station where you gained entry with a hammer and then stole some money;
·You remembered stealing and then selling for $250 the Toyota Hilux you had found parked in a paddock with the keys in the ignition;
·Although your account was somewhat different to his, you admitted to being involved in an incident with Mr Rayner on 23 February, in the context of a dispute that had been going on for years; and
·As for the various items found in your possession on arrest, you took responsibility for the taser, extendable baton and flick knife, the $2,149.55 in cash, the jewellery and most of the power tools, and when asked about the quantity of methylamphetamine you said it had been left in your car and was 'meant to be ice' but was in fact 'shit' and that you had been 'contemplating tipping it out'.
Pre-sentence detention
35After the interview you were charged and then remanded in custody where you have remained ever since. The total period of pre-sentence detention for this matter is therefore 382 days, up to but not including today’s date. A declaration to that effect will be made shortly.
Co-offenders
36For the sake of completeness, I note the following in relation to the persons who have been identified as accomplices in some of your offending. Ashleigh Awege is intending to plead guilty to burglary and theft charges in connection to the Harro’s Car Wash incident at Bendigo Magistrates’ Court on 28 March this year. Brianna Oliver faces burglary and theft charges arising from her involvement in the Shiner’s Car Wash incident and those charges together with a raft of other unrelated charges are presently unresolved in the Magistrates’ Court committal stream.
37The other suspect in the Shiner’s Car Wash incident, Lachlan Oliver, was never charged due to a lack of identification evidence.
38I note that your counsel, Ms Patterson, did not and could not seek to place any reliance on the parity principle in the circumstances just described.
Guilty plea
39As is clear from the chronology attached to the prosecution opening, this case has had a somewhat elongated history, through no fault of yours, Mr Graham.
40It commenced in the summary stream of the Bendigo Magistrates’ Court and then resolved at a mention hearing on 29 June 2023. However, in the course of the plea hearing on 10 August, the presiding magistrate formed the view that it was too serious a matter to be dealt with summarily and so uplifted it to the committal stream. Inevitable delays then occurred while a hand-up brief was prepared and further negotiations took place. Ultimately, the matter resolved at a committal mention hearing on 6 November and you were committed to this court where it was finally able to be heard as a plea on 20 March this year.
41Given that history, I have no difficulty accepting that you pleaded guilty at the first reasonable opportunity. As such, you are entitled to and will receive a significant sentencing discount for pleading guilty as and when you did.
Prior criminal history
42As is clear from the criminal record filed with this court, Mr Graham, you have a very relevant and extensive criminal history, particularly for someone who is still only aged in his early 30s.
43As the result of 11 Victorian court appearances during an 11 year period between April 2009 and July 2020, you have been sentenced for just over 240 offences, and you have been previously sentenced for every type of offence that you now face, in many instances, on multiple occasions. You have a staggering 47 prior convictions for burglary, one for attempted burglary, 73 for theft (of which 11 are for theft of a motor vehicle), 30 for driving while unlicensed or disqualified, 16 for criminal damage and three for deal with proceeds of crime.
44In New South Wales you have been sentenced for offences that include burglary, receiving stolen property, driving whilst disqualified (x 6) and using an unregistered vehicle.
45You have clearly not taken advantage of past opportunities provided by the courts. You faced breach proceedings in relation to a community-based order in 2010 and for a wholly suspended sentence in 2013.
46Despite having to serve numerous custodial sentences in the past, you were not deterred from committing the numerous and varied offences for which you now fall to be sentenced.
Personal circumstances
47I now turn to consider your personal circumstances, Mr Graham.
48Your background is referred to in some detail in the written submissions of your counsel and in the respective reports of a psychologist and a neuropsychologist. I have read those submissions and those reports carefully and have taken their contents into account when determining the appropriate sentence in your case.
49In your early childhood you lived in Rochester, New South Wales with your parents, two siblings and two half siblings. Your parents separated when you were still quite young. Your mother re-partnered and your father went on to have a series of new relationships and a number of further children.
50Initially, you lived with your mother. However, in the context of ongoing conflict with your stepfather, you went to live with your father for about a year when you were aged 10. He abused you both physically and emotionally. He exposed you and your sister to pornography and tried to encourage sexual activity. He also exposed you to his own criminal behaviour. When you returned to live with your mother, things did not go well as she was struggling with alcoholism. As a result, you were placed in foster care until you turned 16.
51Immediately after leaving foster care, you commenced to live with your then partner and became a father yourself when aged only 17. You have only recently re-commenced contact with that child, a daughter now aged 16 or so, as for many years you were led to believe that you were not the father.
52You are currently in a long-term relationship with a lady named Amanda. That relationship commenced when you were 18 and has produced four children, three of whom survive and are now aged 14, 12 and six. In 2014 you tragically lost a child who died when only nine days old. Two of your remaining children suffer from mental health and behavioural issues while the other has been diagnosed with ADHD.
53You have told your counsel that you view Amanda as your greatest support and her and your children as your greatest motivator for change. You miss them and the time that you have spent in custody has provided you with an opportunity to reflect on the priorities in your life. On your eventual release from custody, you intend to relocate to Warrnambool where they are currently living.
54Unsurprisingly, your education was disrupted by the very unstable home life to which you were subjected. Initially, you left school in Year 8 but then, to your credit, you returned to complete your Year 10 equivalency through TAFE at age 16.
55After leaving school you obtained work in various fields, including as a dairy farmer, in abattoirs, as a kitchen hand and as a manager in a pizza shop. Your longest and most satisfying employment was while you worked for three years as a manager of a dairy farm. It was an important role and required you to be skilled in many areas. You hope to be able to return to work in a similar role on your release, particularly given the strong dairy industry which exists in and around the Warrnambool area.
56Also of note is the fact that you have previously completed a Certificate IV in Business Management.
57I note that your current offending occurred when your life was ravaged by a serious drug addiction and further destabilised by the fact that you were having to frequently travel between New South Wales and Echuca in order to see your partner and children. As can be inferred from your prior criminal history, you have had a drug problem for many years, about which I will say more shortly.
58One of the sad aspects of your very disadvantaged upbringing is the fact that you were exposed to alcohol at a very young age. You began drinking when only eight and your alcohol consumption considerably increased during your early teenage years when you were living with your mother. You believe that you were addicted to alcohol by age 16 and by your late teens you were drinking more than a bottle of Jim Beam on a daily basis.
59Your drinking remained problematic until you began experimenting with methamphetamines when aged about 23. That drug had an immediate and very detrimental impact on your life as it resulted in you losing your job as a dairy farm manager and led to a deterioration in both your physical and mental health.
60In around 2018 you began experimenting with other drugs. Whilst your use of heroin was only on an intermittent basis at the start, you went on to develop a serious addiction to that drug and were using it and methamphetamines heavily leading up to and during the period of your current offending.
61You have some insight into the problems that your drug use has caused in your life and the connection between that addiction and your commission of criminal offences, including those for which you now fall to be sentenced. When you committed those offences, you were both under the influence of drugs and motivated to get money or goods that you could cash in or exchange for more drugs.
62Now in the sober light of day you are motivated to try and turn your life around. To that end, you have remained abstinent from drugs while on remand and intend to undertake a residential drug rehabilitation program on your eventual release from custody. Your motivation in that regard derives some support from the letter from Kim Andrews, the intake co-ordinator at Teen Challenge Victoria, which was prepared following your contact with that organisation earlier this year.[18]
[18] Dated 21 February 2024 (exhibit 4).
63You have endeavoured to put your time on remand to good use. Apart from remaining drug abstinent and working as a canteen billet, you have also completed the 'Ice and Me' program and a 'Positive Parenting' program.
64I note that you were initially assessed by the psychologist, Austin Campbell on 30 August 2023 and then by way of follow up by the neuropsychologist, Dr Linda Borg, on 5 February 2024. I have read each of their reports very carefully and found that of Dr Borg, in particular, very helpful.
65Your counsel appropriately sought to rely on the history and opinions in those reports in a general way to illuminate the nature and relevance of your background and personal circumstances, including your sad and dysfunctional upbringing. However, she eschewed any reliance on the principles in Verdins case as well as one of the aspects in Bugmy’s case, namely that relating to the reduction in moral culpability.
66Of most significance are the findings in relation to your depression, anxiety and post-traumatic stress disorder.
67Dr Borg noted that your background was characterised by your exposure to childhood trauma, parental substance abuse and early antisocial behaviour. She doubts the accuracy of an earlier diagnosis of ADHD during childhood as it is complicated by the onset of polysubstance abuse during key periods of adolescent development. Her neurological testing of you revealed that your cognitive and functional presentation are inconsistent with a diagnosis of ADHD. As she explains in her report, the studies in the literature demonstrate that inattentiveness and externalising behaviours in childhood can be explained by the neurobiological changes that can occur as a result of being exposed to abuse and violence. In her view your history of exposure to trauma, abuse and unpredictability during childhood was likely to have been highly detrimental to your capacity to learn, as well as brain maturation.
68On a positive note, Dr Borg is of the opinion that you have a clear appreciation of right and wrong and are capable of exercising appropriate judgement and insight regarding your circumstances. You have the capacity to understand the consequences of your actions and to adapt your behaviour in response to feedback.
69But she also concluded that you possess a number of underlying vulnerabilities, including a tendency for behavioural impulsivity and emotional dysregulation, and while stressed, you are more likely to respond disproportionately to triggers and less likely to use your cognitive capabilities to inform your decision making. As Dr Borg also notes, these underlying vulnerabilities would likely be more prominent when you are acutely intoxicated. In her opinion the available evidence suggests that your ongoing post-traumatic symptoms, dysthymia and acute drug intoxication were all potential contributing factors to your offending.
70With regards to that offending, Dr Borg noted what she considered to be your genuinely expressed remorse, regret and shame and your desire to take more responsibility for your actions in the future. In her view treating your PTSD condition is necessary in order to maximise the benefit of any other treatment and interventions. In that regard referral for psychological counselling is highly recommended as well as psychiatric review to assess the potential for pharmacological management. Dr Borg supports your desire to undertake a period of community-based drug rehabilitation upon release from custody which she believes should be supported by ongoing drug and alcohol counselling in the community.
71Dr Borg assessed your risk of reoffending as moderate but capable of being mitigated by ongoing drug abstinence, drug treatment and AOD counselling, regular psychological intervention and/or pharmacological intervention and participation in a local peer support program to facilitate more adaptive coping mechanisms.
72For his part the psychologist, Mr Campbell, took a detailed record of your personal background, including your history in relation to education, employment, substance use, mental health and relationships. In his view various traumatic events from your childhood, including one to which you were subjected by a Youth Justice worker, led to the development and reinforcement of maladaptive beliefs that have contributed to your disorganised sense of self and to you engaging in a number of destructive and harmful behaviours throughout your life. Furthermore, those issues, coupled with experiences of childhood trauma and the resulting impacts on your emotional control, precipitated the development of your substance use disorder and ongoing issues with drug abuse. Unsurprisingly, Mr Campbell recommends psychological intervention, including trauma specific treatment. Like Dr Borg he noted your genuine remorse and feelings of shame and frustration, as well as your apparent motivation to strengthen your relationship with your family.
Matters in mitigation
73Your counsel was able to rely on a number of matters in mitigation, including the following, Mr Graham.
74Your very early plea has considerable utilitarian value. It has saved the community the cost and time of a trial and demonstrates your preparedness to facilitate the course of justice and spare the witnesses from having to give evidence. By taking that course as and when you did, you are entitled to and will receive a significant sentencing discount.
75Despite your lengthy and unenviable criminal history, I am satisfied that you are remorseful for having engaged in the current offences. I strongly suspect that your current offending is explained by the very serious nature of your drug addiction at that time rather than any entrenched lack of a moral compass on your part. In short, you are prepared to engage in this type of criminality while under the grip and influence of drugs and drug withdrawal when you would not be so inclined after a period of sustained drug abstinence.
76I accept that you have some insight into the link between your substance abuse and offending and that you are motivated to address your serious drug addiction, notwithstanding how challenging that will be for you.
77You have remained positive while on remand and have already taken some early steps towards improving your rehabilitation prospects.
78You are fortunate to enjoy the ongoing support of your partner and children and I accept that their support is a motivating factor in your desire to finally turn your life around.
79You have a proven capacity to obtain and maintain work in various capacities and there is no reason to believe that you cannot do so again providing you do not relapse into further drug use once released.
80It is through no fault of yours, Mr Graham, that you experienced such an abusive and dysfunctional upbringing. Any person reading the history of your background contained in the reports prepared by Mr Campbell and Dr Borg,[19] could not but be saddened by what you have had to endure. It no doubt was instrumental in you developing an early and destructive reliance on alcohol and then illicit drugs as a means of trying to cope with the traumas to which you were subjected. And inevitably, your resulting alcohol and drug addictions, especially the latter, has been a significant contributing factor in your criminal offending. In my view the observations made in the case of R v McKee and Brooks,[20] and to some degree those made by the High Court in Bugmy v The Queen,[21] have some application to your case and it is only fair that I take them into account.
[19] Exhibits 2 and 3, respectively.
[20] (2003) 138 A Crim R 88.
[21] (2013) 249 CLR 571.
81Whilst no longer a young man, you are at a stage in life when some drug addicted criminals are able to finally take stock of their life and turn things around for the better. I am prepared to accept that you are now at least motivated to do the same. But whether that becomes a reality or not very much remains to be seen and will require considerable ongoing motivation and a strong degree of discipline on your part. The real test will obviously come when you are released from custody and by no means do I underestimate the enormity of the task ahead of you in that regard.
Gravity of the offending
82This court must also have regard to the objective gravity of your offending, Mr Graham.
83As can be gleaned from the relatively high maximum penalty that applies to both burglary and theft, such offending is intrinsically serious.
84Commercial burglaries and associated thefts are common and no doubt have an effect on the owners of the businesses which are targeted. In this case your offending was premediated and almost always successful, no doubt due to the type of business, the means of forcing entry and the time of day. It did not require much sophistication and was highly effective despite the crude methods employed. In carrying out those offences as you did you showed absolutely no regard for the property rights of the owners of those businesses. The use of a stolen vehicle, gloves and disguises all serve to elevate the offending where present, as does the fact that some of the offences were committed in company.
85I also note that you displayed a similarly selfish attitude in relation to the victims of the other theft charges, which I note carry the same maximum penalty. In possessing and using those vehicles as you did, and in one instance by selling it, you showed a callous disregard for the people who owned and no doubt relied on those vehicles. Each of them would no doubt have been considerably inconvenienced by what you did.
86The criminal damage offence relating to Mr Rayner’s vehicle is by no means a minor offence. While it commenced fairly spontaneously, it was no doubt frightening for the victim and the amount of damage caused was substantial. Whatever the history of ill-will between you and he, there was simply no justification or excuse for doing what you did.
87The drug possession offence relates to a relatively significant quantity but care must be taken to ensure that you are not sentenced for a more serious offence than that with which you are charged.
88Of all the related summary offences, Charges 18 and 20 are the most serious, based as they are on multiple items of property and weapons respectively.
89The related summary offence of going equipped to steal was committed on the same day as, and is inextricably intertwined with, the commission of the burglary and theft offences at the Ampol service station. I have been careful to avoid any risk of doubly punishing you in that respect, Mr Graham, by imposing a relatively short and wholly concurrent sentence for that summary offence.
90Given your relevant driving history, the remaining summary charges are certainly not trivial offences and so a moderate fine is warranted.
91And finally, it needs to be noted that all of your current offences are aggravated by the fact that they were committed while you were on parole for a sentence you received in New South Wales on 14 September 2022. And the offences alleged in Charge 15 and Summary Charges 18 and 20 are further aggravated by the fact that they were committed while you were on New South Wales bail granted on 26 February 2023.[22]
[22] This does not appear in the Criminal Record but was appropriately brought to the court’s attention by defence counsel at paragraph 14 of her written submissions (exhibit 1).
92Although not an aggravating factor as such, it is still noteworthy that your current offending appears to have commenced only a short time after the expiry of the sentence of three years with a non-parole period of 21 months you received in the Echuca Magistrates’ Court on 25 March 2020.
Relevant sentencing principles
93In this case the sentencing principles of general and specific deterrence and denunciation remain particularly significant, while just punishment and protection of the community are also very relevant considerations.
94This court must also have regard to your age and prospects of rehabilitation, which I have assessed, as at best, fair but also guarded.
Sentencing submissions
95In her careful and realistic sentencing submissions your counsel, Ms Patterson, acknowledged that this was serious offending on your part for which only a custodial sentence involving a head sentence with a non-parole period was open.
96The prosecution made a similar submission after seeking to highlight some of the serious aspects of your offending and the relevant sentencing principles.
Analysis
97In my view the parties’ submissions were entirely appropriate given the nature, extent and seriousness of your current offending, together with your history of committing similar offences in the past. On any view a significant custodial sentence in the form of a head sentence with a non-parole period is warranted, any lesser sentence would simply fail to recognise and weight the sentencing principles that require emphasis in your case.
Sentence
98Mr Graham, after having carefully considered, balanced, and weighed the relevant sentencing considerations in your case, I have decided to sentence you as follows.
99In relation to the charges in the indictment, you will be convicted and sentenced to the following terms of imprisonment.
100On Charge 1, theft, 12 months.
101On Charge 2, burglary, 24 months.
102On Charge 3, theft, 24 months.
103On Charge 4, theft, 12 months.
104On Charge 5, burglary, 24 months.
105On Charge 6, theft, six months.
106On Charge 7, burglary, 24 months.
107On Charge 8, theft, 15 months.
108On Charge 9, theft, 12 months.
109On Charge 10, attempted burglary, 12 months.
110On Charge 11, burglary, 24 months.
111On Charge 12, theft, 15 months.
112On Charge 13, theft, 12 months.
113On Charge 14, intentionally damaging property, nine months.
114On Charge 15, possession of a drug of dependence, one month.
115In relation to the related summary charges you will be convicted and sentenced as follows.
116On Summary Charge 4, going equipped to steal, to one month imprisonment.
117On Summary Charge 18, dealing with property suspected of being proceeds of crime, to three months’ imprisonment.
118On Summary Charge 20, possession of a prohibited weapon without exemption or approval, to three months’ imprisonment.
119And finally, on Summary Charge 22, unlicensed driving, Summary Charge 23, careless driving, and Summary Charge 24, using an unregistered motor vehicle, to an aggregate fine of $1,000.00.
120The sentence of 24 months imposed on Charge 3 will be the base sentence.
121The following periods are to be served cumulatively on that base sentence and on each other: one month on Charge 4, four months on Charge 5, four months on Charge 7, one month on Charge 9, two months on Charge 10, four months on Charge 11, one month on Charge 13, one month on Charge 14, one month on Summary Charge 18 and one month on Summary Charge 20.
122The total effective sentence is therefore three years and eight months’ imprisonment.
123In respect of that head sentence, I fix a non-parole period of two years and eight months.
Pre-sentence detention
124Pursuant to s 18 of the Sentencing Act 1991, I declare that you have served a total of 382 days pre-sentence detention, not including today’s date, in respect of today’s sentence. I order that such period is to be reckoned as already served under that sentence and that the declaration and its details be entered in the records of this court.
Section 6AAA indication
125Pursuant to s 6AAA of the Sentencing Act1991, I indicate that but for your plea of guilty to the charges for which you have received terms of imprisonment today, you would have been sentenced to a total effective sentence of five years with a non-parole period of three years and nine months.
Ancillary orders
126Pursuant to s 89(4) of the Sentencing Act 1991, this court must make an order in relation to your licence on Charges 1, 4, 9 and 13, although the period is discretionary. Accordingly, for each of those charges I order that any driving licences or permits held by you are cancelled and you are disqualified from obtaining any further licences or permits for a period of 18 months from today’s date. Those periods of disqualification are to run concurrently from today’s date.
127I grant the forfeiture and disposal orders in the terms sought by the prosecution, pursuant to ss 34(1) and 78(1) of the Confiscation Act 1997, respectively. In exercising that discretion, I have had regard to your counsel’s consent to such orders being made.
Other matters
128Are there any matters that counsel need to raise at this stage in relation to either the sentence or the sentencing reasons, starting with you, Ms Patterson?
129MS PATTERSON: No, Your Honour.
130HIS HONOUR: Thank you. Mr Cordy?
131MR CORDY: No, Your Honour.
132HIS HONOUR: Ms Patterson, once I leave the Bench you will be permitted to have a brief conversation with your client utilising the current video link, if you wish.
133MS PATTERSON: Thank you, Your Honour.
134HIS HONOUR: And thank you Ms Patterson for your assistance in this matter.
135Mr Cordy, as this is the last matter I will be hearing during this circuit, I would like to take the opportunity to thank you and your instructing solicitors for the assistance provided to the court and its staff during the circuit.
136MR CORDY: Thank you, your Honour.
137HIS HONOUR: Please now adjourn the court sine die, Mr Hammill.
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