Director of Public Prosecutions v Harris

[2019] VCC 1290

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR‑19‑01069

DIRECTOR OF PUBLIC PROSECUTIONS

v

MATTHEW HARRIS

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:	2 August 2019
DATE OF SENTENCE:	13 August 2019
CASE MAY BE CITED AS:	DPP v Harris
MEDIUM NEUTRAL CITATION:	[2019] VCC 1290

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. O'Doherty	Office of Public Prosecutions
For the Accused	Ms K. McFarlane	McFarlane Criminal Lawyers

HIS HONOUR:

1Matthew Harris, you have pleaded guilty to one charge of obtain property by deception, one charge of attempting to obtain property by deception, and one charge of resisting a custodial officer on duty.  Those crimes carry maximum penalties ten years, five years and five years, respectively.

2You are now 20 years of age, and turn 21 in a few months' time.  You pleaded guilty at a reasonably early opportunity, and ultimately at least made admissions in relation to the matter.  You quite clearly resisted when the original arrest took place.  You have professed remorse, insofar as these matters are concerned, and you must, of course, get the utilitarian benefit of your pleas of guilty.  You have no prior convictions, and are still, obviously, a youthful offender.

3A summary of the offending is that you were 19 years of age at the time.  You apparently were the owner of a small business, Traralgon Tyre and Auto.  You contacted Yokohama Tyres, and endeavoured, at least, to set up an account with them, and have a credit check conducted.  On 15 October 2018, you called Yokohama, intending to make an order, and identified yourself correctly as being from Traralgon Tyre and Auto.

4Their representative could not find an account, but assumed that you mean K-Mart Tyre and Auto Traralgon.  The order was made, and the tyres were delivered to your premises.  When that order was delivered, the K-Mart Tyre and Auto customer reference number was given with it.  On 22 October 2018, you again called Yokohama.  You provided the business name, Traralgon Tyre and Auto, however when the person was unable to located the business, you then said that you were from Traralgon K-Mart Tyre and Auto, and you gave their customer reference number.

5It is clear from that point on, you were well aware of the deceptions that were going to take place.  Between 22 October and 13 November 2018, you made a total of 13 orders of tyres, all of which were delivered and subsequently there was a further order, set of orders, for tyres which were not delivered.  Of attempted tyres, there was $57,000 worth; of received tyres, there was $105,000 worth.

6In November, you called to enquire about the status of the delivery, and you told lies about what your name was.  In any event, investigators became involved, and ultimately found most of the tyres in a shed that you had hired. According to the values here, $21,225 worth were not recovered. It is believed they were sold, and your counsel did not demur from that position.

7It is a bit difficult in these circumstances to know what the value really is.  I am assuming that it retail value, rather than replacement value, but I am not going to buy into it.  In any respect, it is a very considerable deception, and a very considerable deception for one so young.  I am told there are no matters since.

8Was there a forensic sample to be ordered?  I think there was, I have not got on.

9MR O'DOHERTY:  Ye, there is one sought, yes.

10HIS HONOUR: Yes, okay, well I make that. Yes. I did not realise. Pursuant to s.464ZF of the Crimes Act I make an order that you provide a saliva sample for DNA purposes.  That order having been made, I must advise that should you provide such a sample, police may use reasonable force to take it from you.  As I have indicated, when police endeavour to arrest you, you endeavoured to resist.

11The Crown position here is that you should go to gaol.  I have taken that into account but it is not necessary.  It is a view that I think a lot would probably share.  This is a serious example of obtaining property by deception.  It is calculated, and it goes on over an extended period of time.  It is clear that when you gave instructions about when you found out this was all taking place, you tried to say you had about ten deliveries beforehand.  That is clearly untrue. You knew what you were doing from the outset, and it involved large sums of money.

12At your age, I would, in the normal course of events, have you assessed for youth justice, which I did, and they found you suitable.  Accordingly, because of your age, and because of your vulnerability, I would have given you youth justice, were I going to incarcerate you, as opposed to adult gaol.  Because of all the matters put in your behalf, I am prepared to release you on a community corrections order, and I will explain the reasons for that in a moment.

13You clearly, on the material before me, have had ADHD since you were young.  You decided not to treat yourself over a period of time when this occurred.  I am failing to see how it attracts the principles of Verdins in this situation, but you are young; you have no priors; you have a good work ethic; and references were provided on your behalf.

14The circumstances of the references are that they are, in one sense, quite bizarre, in describing you as immature, yet one claims that you are a very astute businessman.  You do have the circumstances of the support of your parents, albeit they are separated.  I take into account the references that were put on your behalf.  I am told, from the Bar table, and then received some documentation, at least, that you have endeavoured to start up another business subsequently.

15The prospects of your rehabilitation are up to you, and the risk of you reoffending would have to be objectively, I suppose, regarded as low.  In those circumstances, without going into childhood experiences and everything else, I am prepared to give you a CCO.  I make it very clear to you, Mr Harris, that it is with some reluctance – I am extremely suspicious about what your attitude to all this is, and I make it very clear that in effect I am giving you a suspended sentence.

16If you breach this CCO - and the only conditions I'm going to be putting on it are work hours, and obviously that you do not reoffend – then I will gaol you in an adult gaol, and you would have to show very, very strong reasons why I would not do so.  Just so you fully understand the seriousness of what you have done, if I was called upon to resentence you, the odds are that my starting point – and obviously I will listen to any arguments on your behalf – would be a gaol term with a minimum parole period, and your counsel has explained to you the seriousness of that.

17As I said, this sentencing was based, really, on your age, and lack of priors, and the fact that there is nothing since.  I think it would be unfair to incarcerate you at this point in time.  But if I have to, in the end, I will.

18All right.  There's no BSD?  There's no other orders I have to make?  Actually, I'll do the 6AAA.  Fifteen months YTC.

19MS McFARLANE:  As Your Honour pleases.

20MR O'DOHERTY:  Could Your Honour indicate how long the CCO and how many hours?

21HIS HONOUR:  Three years.  Sorry, I haven't.  Yes, no, I'm sorry.  I haven't.  I have already done it. I am just waiting for it to be given to me.  Yes, it will be 300 hours and three years.  Which is the most I can give him, without having him assessed.  All right, that order has been made.  Just stand up for a moment for me, Mr Harris.  I meant what I said, all right?  I keep the tape of this.  It's transcribed, and if you go thieving like this again, you will get a real whack.  And that's a promise.  All right?

22Okay, thank you for that.  Thank you, Ms McFarlane.  Yes, you can leave the dock.  I'll come straight back out.

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