Director of Public Prosecutions v Green

[2019] VCC 508

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-01339

DIRECTOR OF PUBLIC PROSECUTIONS

v

TERRENCE JAMES GREEN

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JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Melbourne
DATE OF HEARING:	11 April 2019
DATE OF SENTENCE:	11 April 2019
CASE MAY BE CITED AS:	DPP v Green
MEDIUM NEUTRAL CITATION:	[2019] VCC 508

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW
Catchwords:  Handling Stolen Goods

Sentence:Convicted and sentenced to 18 months imprisonment. Direct six months to be served cumulatively on sentences imposed on CR-17-01337 and CR-17-01338, which had a total effective sentence of 11 years imprisonment, with an intended total effective sentence of 11 years and six months imprisonment. Direct a new non-parole period be fixed (in conjunction with CR-17-01337 and CR-17-01338), and that the minimum term to be served before being eligible for parole is nine years imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Director of Office Public Prosecutions	Ms M. Casey (Plea) Ms E. Zelez (Sentence)	Director of Office Public Prosecutions
For the Accused	Mr G. Barns	Patrick Dwyer

HIS HONOUR: 

1Terrence James Green, on 26 March 2019,  you pleaded guilty to one charge of handling stolen goods, a 12 gauge Stirling shotgun on Indictment No: G12993070.  This charge has a maximum penalty of 15 years imprisonment. 

Circumstances of your offending

2The prosecution filed a summary of prosecution opening for plea dated 25 March 2019.  It was Exhibit “A” on the plea.  The agreed facts in this plea are as follows:

Background

1. In the early hours of 4 June 2015, the victims Stanley Barlow and Julian Brown, were asleep in Mr Barlow's house in Wantirna when three intruders broke into the house. 

2.  Mr Barlow was assaulted with a metal pole and both victims were tied up with duct tape.  The house was then ransacked by the offenders and various items were stolen, including two firearms. 

3. The offenders, in respect of the aggravated burglary, false imprisonment and armed robbery, have not been identified. 

The offending

4. One of the firearms stolen during that aggravated burglary was a Stirling brand single barrel shotgun.  At the time it was a whole single barrel shotgun that had not been shortened. 

5. On 18 July 2015, the Stirling brand firearm was dropped by you during an attempted armed robbery at a newsagency in Ashwood. 

6. The firearm was seized by the attending police. 

7. Investigations revealed that the firearm had been modified and made into a sawn-off shotgun.  Further, the serial number had been over-stamped in an attempt to conceal a serial number to prevent it from being linked as the firearm stolen from Mr Barlow on 4 June 2015.

8. Your DNA was found on the firearm. 

9. At the time of the offending you were 37-years-old.  You are now 41. 

Arrest and Interview

10. On 2 August 2015, you were arrested and interviewed by the police.  You admitted to having handled two sawn-off firearms back in July 2015, but denied participation in the attempted armed robbery and said you did not know anything about it. 

11. At the time of the offending you were on bail and you were also a prohibited person in possession of a firearm. 

Chronology of proceedings and current sentence

12. On 16 October 2018, you resolved charges relating to the attempted armed robbery.  These charges proceeded as a plea on 3 December 2018, before her Honour Judge Fox of this court to the attempted armed robbery and prohibited person being in possession of firearm and a number of other matters. 

13. Relevant documents from court reference No: CR 17-01338 are as follows:
a) The indictment, which is Charges 10 and 11, 12;

b)  The summary of prosecution opening; and

c)  The reasons for sentence by Judge Fox.

14. At the time of the offending you were on bail and pleaded guilty to a charge of committing an indictable offence whilst on bail. 

15. On 17 December 2018, you were sentenced on:

a) Charge 10, that is the charge of prohibited person in possession of a firearm.  You received 12 months imprisonment. 

b) On Charge 11, a charge of attempted armed robbery, you were sentenced to four years and six months. 

c)  The cumulation between Charges 10, 9 and 11 were made. 

d) The total effective sentence out of all the offending of that time was 11 years imprisonment with a non-parole period of eight years and six months.  I was told that the sentence is the subject of a Director's appeal to the Court of Appeal.  At that time you had pre-sentence detention declared at 993 days. 

3The original charges you faced had a long history in the court.  After you were sentenced by Judge Fox for other offending, that is the offending I have just referred to, on 17 December 2018, the relevant chronology is as follows:

·On 25 February 2019, the final directions hearing for the trial that was to be heard, and the trial date was confirmed. 

·On 26 February 2019, you put in an offer to plead to a charge of handling stolen goods, being the firearm.

·On 1 March 2019, that plea offer was rejected by the Office of Public Prosecutions. 

·On 25 March 2019, you put in an application for discontinuance on the charges for the trial.  On 25 March 2019 the prosecution accepted your original plea offer to the charge of handling stolen goods. 

4There is no pre-sentence detention in respect of this charge.  You have been in custody since your arrest on 2 August 2015. 

Personal circumstances

5As I said earlier, you are 41-years-old.  You are one of three children.  You still have telephone contact with both your father and mother.  They live separately from one another.  Your father has five children from a previous marriage.  He is now some 73-years-old and lives in Drysdale. 

6You grew up in Essendon.  Your family life was shattered when your father was incarcerated in 1991.  You were approximately 15-years-old.  At that stage you started drinking alcohol, shoplifting, wagging school and whilst wagging school going around to a friend's place.  When you were aged 15-years-old your friend's mother initiated and conducted a sexual relationship with you.  Your friend's mother accused you of rape at one stage and you were informed that you would be charged with that offence.  Given your age, and the true circumstances of the sexual relationship, you were very upset by that allegation. 

7You were first sent to juvenile detention in 1993 at the age of 15.  You were in and out of detention until 1999.  In a report dated 13 November 2017, prepared by Dr S. K Brann, psychiatrist, it is reported that you were a victim of sexual abuse, physical abuse and neglect whilst you were in detention. 

8You are taking civil proceedings against the State of Victoria for damages arising from the sexual assaults and other abuse of you by officers whilst you were in Turana.  You have only in recent years disclosed the sexual offending against you. 

9Dr Brann has diagnosed you as suffering from chronic PTSD with panic attacks and dissociative symptoms.  You also suffer from multiple substance abuse conditions which are in remission whilst you are in custody.  You have an addiction basically to alcohol and ice over a long period of time. 

10You have two daughters aged 16 and 18.  Your daughters were born to two different women that you have had relationships with in the past.  You have some limited contact with your daughters whilst you are in custody. 

11You have an extensive criminal history.  Your adult criminal history commenced in 1995.  You have had 18 separate court appearances in Victorian courts.  You have prior convictions of violence, dishonesty, drugs and damage to property.  This is the first time you have been charged with the charge of handling stolen goods.  You have been incarcerated in Western Australia for armed robbery in 2001 for a sentence of six years. 

12On 17 December 2018, you were sentenced to 11 years imprisonment with a non-parole period of eight and a half years.  You have been in custody since 2 August 2015, and on my calculation that is a total of 1347 days. 

Sentencing considerations

13The basic purpose for which a court may impose a sentence is just punishment, deterrence, 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 such as the seriousness of your offending, your culpability for it and your personal circumstances. 

14I am also required to balance interests of the community to denounce your criminal conduct with the interests of the community in seeking to ensure, as far as possible, that you as an offender are rehabilitated and reintegrated into society. 

15I am also required to take into account current sentencing practices in fixing your sentence.  That enquiry is directed particularly, but not exhaustedly, to the kinds of sentences imposed in comparable cases and the statistics that relate to those charges.  I have considered the statistics and current sentencing practices, mindful that each case must be considered in the light of its own particular circumstances, and many of the cases could be distinguishable from your case, as indeed they are from one another.  Of course, current sentencing practices are only one of the factors that I have to take into account when fixing your sentence for the offence of handling stolen goods. 

16A trial is listed to start in March of 2019.  You were charged with other matters including aggravated burglary.  On 26 February 2019, you offered, as I have said before, to plead guilty to this charge of handling stolen goods.  On 1 March 2019, the prosecution rejected your plea offer. 

17On 21 March 2019, you submitted an application for discontinuance on the trial charges.  On 25 March 2019, the prosecution accepted your original plea to this charge of handling stolen goods. 

18You pleaded guilty to the charge.  Your plea was indicated at a late stage.  Your plea does have the utilitarian value 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 allows for the preservation of the court and police resources to deal with other matters and your plea vindicates the public confidence in the legal process set up to protect the community. 

19Your plea also is a clear acknowledgement by you that you accept responsibility for your criminal behaviour on this occasion.  Your plea also recognised you are willing to facilitate the course of justice in the community and I accept that your plea to this charge indicates and demonstrates some remorse on your behalf.  Your plea has also avoided the necessity of other persons to give evidence in a trial on the original charges that you were to face. 

20I have previously referred to your total sentence of 11 years with a non-parole period of eight and a half years imposed by Judge Fox on 17 December 2018.  The firearm which is the subject of the current charge of handling stolen goods was the subject of firearm charges before Judge Fox.  In particular, a sentence of 12 months was imposed for you being a prohibited person in possession of a firearm, that was Charge 10.  Charge 11 was a charge of armed robbery, for which you were sentenced to four years and six months. 

21The rule against double punishment has some application in your sentencing process.  The charge of handling stolen goods has different criminal elements to the charge of armed robbery and being a prohibited person in possession of a firearm.  There is, in this case, the common factor of the 12-gauge Stirling shotgun.  Given your extensive criminal history of dishonesty charges, the charge of handling stolen goods calls for a discreet sentence of its own, but that a proportion of that sentence is to be served concurrently with the other sentences served by you. 

22The principle of totality also has application in this sentencing process.  I was told that the Director of Public Prosecution, is appealing your sentence of 11 years with an eight and a half-year non-parole period.  I disregard that fact in assessing the totality of your sentence you have, as a result of the sentence in this case.  The overall obligation is to ensure that a sentence is not crushing, whilst at the same time, imposing a just punishment for your offending. 

23You had a sad and traumatic life.  Most of your adult life has been spent in prison.  You have been subjected to criminal behaviour whilst in detention as a young boy of 15 years.  Dr Brann reports on the effect it has had on you in your formative years.  Your drug and alcohol addictions are a result of it. 

24I agree with Judge Fox’s assessment, when sentencing you, Her Honour stated the following:

"The matters in Dr Brann's report provide some explanation for your criminal history and your continued offending.  You went into custody as a teenager and were abused by people with power and authority, who were entrusted with your care, in circumstances where you could not escape them.  Your antisocial behaviour, anger, drug use and resulting criminality is explained in part by the violence and abuse committed against you when you were a child, and by persons who wielded power and authority over you". 

25Your offence of handling stolen goods is a serious offence.  Your offending provides a place for thieves to dispose of their ill-gotten property.  Given your criminal history, the only appropriate sentence is a term of imprisonment. 

26Would you stand please?

27On Charge 1, you are convicted and sentenced to 18 months imprisonment.  I order that six months of this sentence be served cumulatively on all other state sentences.  Further, I fix a new non-parole period which is an additional six months on the non-parole period fixed by Judge Fox on 17 December 2018.  There is no pre-sentence detention in respect of this charge. 

28HIS HONOUR: What I have ordered, is that he serves six months extra on both the head sentence and on the non-parole period. 

29MR BARNS:  Thank you, Your Honour.

30HIS HONOUR:  Is that order appropriate?

31MR BARNS:  Yes, Your Honour.  I might just explain it to my client.

32HIS HONOUR:  Yes, certainly. 

33MR BARNS:  Thank you, Your Honour.  He understands that now.

34HIS HONOUR:  All right.  Thank you.  Thanks, officers, if you remove the prisoner.  Thank you.

35MR BARNS:  I think we've just got one order to ‑ ‑ ‑

36HIS HONOUR:  I'm sorry.  There's another order.  Sorry, Mr Green.  There's an order - a forfeiture order for the gun, I think. 

37MS ZELEZ:  There's just been a discussion with my friend this morning and we were just hoping to - if you're minded to make the order, remove the mobile phone from it. 

38HIS HONOUR:  Yes.  It's just the forfeiture order, Mr Green.  I won't be a minute.  I'm just going to have it printed here.  Mr Green, I'm just making a forfeiture order in respect of the tape that was said to be found and the shotgun.  You can now concentrate on your settlement conference later on this month.  Thank you.

39COUNSEL:  Thank you, Your Honour. 

40HIS HONOUR:  Thanks counsel for your assistance. 

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