Director of Public Prosecutions v Harris (a Pseudonym)
[2023] VCC 537
•5 April 2023
| IN THE COUNTY COURT OF VICTORIA AT LATROBE VALLEY CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
General List
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DAVID HARRIS (A Pseudonym) |
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JUDGE: | HIS HONOUR JUDGE DEMPSEY | |
WHERE HELD: | Latrobe Valley | |
DATE OF HEARING: | 31 March 2023 | |
DATE OF SENTENCE: | 5 April 2023 | |
CASE MAY BE CITED AS: | DPP v Harris (A Pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 537 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence
Catchwords: Aggravated burglary, theft of firearms, theft. Breach of trust by stealing from relatives. Firearms not recovered. Modest but relevant prior criminal history. Very high degree of co-operation which was of high value and comes at high risk to safety of accused. Plea during pandemic. Crown concession that CCO open.
Legislation Cited: Crimes Act1958 (Vic), Sentencing Act1991 (Vic), Open Courts Act2013 (Vic).
Cases Cited:DPP v Meyers (2014) 44 VR 486, Barry v The Queen [2021] VSCA 321, Worboyes v The Queen [2021] VSCA 169, The Queen v Johnston [2008] VSCA 133, DPP v Cooper [2018] VSCA 21, Boulton v The Queen (2014) VR 308.
Sentence: Convicted and placed on 18-month CCO with conditions.
Section 6AAA Sentencing Act 1991 declaration – 24 months with non-parole period of 14 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P. D’Arcy | Office of Public Prosecutions |
| For the Accused | Mr J. Lavery | Richard Davis & Associates |
| NOTE: To ensure there is no possibility of identification, this Sentence has been anonymised through omission and/or the adoption of pseudonyms in place of names of the offender, victim and family or witnesses. | ||
HIS HONOUR:
INTRODUCTION
1David Harris[1] you have pleaded guilty to the following charges arising from offending about 27 October 2022.
(i)Aggravated Burglary Person Present (contrary to s 77 to the Crimes Act 1958) carrying a maximum of 25 years imprisonment.
(ii)Theft of Firearm (contrary to s 74AA(1) of the Crimes Act 1958) that carries 15 Years imprisonment as a maximum penalty
(iii)Theft (contrary to s 74(1) Crimes Act 1958) that carries a maximum of 10 years imprisonment.
[1] A pseudonym.
2Despite the gravity of the instant offending, because of the constellation of powerful matters in mitigation in this case, you will be released on a Community Corrections Order (CCO) for a period of 16 months with conditions. The reasons why this sentence is imposed follow.
OFFENDING [2]
[2]Exhibit B- Summary of Prosecution Opening dated 24 February 2023.
The victims
3The first victim in this matter is your grandmother Susan Cooper[3]. The second victim is your uncle (Ms Cooper’s son) Daniel Thompson[4] who is the owner of a gun safe which was stored in the garage at Cooper’s premises.
[3] A pseudonym.
[4] A pseudonym.
Aggravated Burglary
4At approximately 9pm on Wednesday 26 October 2022, Cooper arrived home to her premises, opened the garage door and parked her vehicle inside. As Cooper was getting out of her vehicle, she heard a male voice and realised that you were standing at the entrance to the garage. She invited you in premises for something to eat or drink. You then left around 9:20pm.
5Sometime later during the night of 26 October 2022 or the early hours of the morning of 27 October 2022 you returned to Cooper’s home intent on stealing the gun safe which you knew to be stored in the garage (attached to the house) whilst she was inside asleep.
6You parked your Nissan Patrol in a neighbouring street, walked through a vacant block and scaled the back fence to gain entry to the rear yard of the premises. You then forced entry to the locked rear access door of the garage. This constitutes charge 1 – aggravated burglary.
Theft of Firearms / Possession of Trafficable quantity of Firearms / Theft
7Once in the garage you used a crowbar (which seems to have already been at the premises) to remove the gun safe (containing both guns and silver bullion) that was bolted to the brick wall.
8You contacted an associate who attended and assisted you in carrying the safe from the garage, over the back fence and into the Nissan Patrol. (Charge 2 and 3 – theft of firearms and theft respectively)
9You drove a short distance where you and two associates transferred the safe to a second vehicle while leaving the Nissan Patrol on the side of the road.
10All three of you then drove to an address in the south eastern suburbs of Melbourne (the South Eastern suburbs address). Enroute to that address the safe was forced open and the three rifles belonging to Thompson were removed (along with the bullion). The rifles were;
(a) Enfield 303 rifle, with bayonet attached (World War 2 antique)
(b) Stirling .22 rifle
(c) Ruger 300 with mag rifle.
11Once at the address you offered to sell the firearms for cash. During the course of that transaction, Police attended the premises for an un-related matter causing you and the others to run and hide.
12You returned to the South Eastern suburbs address, where you were assaulted with a machete and police baton by the occupants of that house. You subsequently attended at Hospital.
POST OFFENCE
Investigation
13Cooper woke up early on 27 October 2022 with the intention of putting the bins out. She entered the garage and discovered the gun safe was missing. The matter was reported to Police.
14At approximately 6.00am on 27 October 2022, Thompson was notified by Cooper of the aggravated burglary. He then called your mother who advised Thompson that you were in Hospital. Thompson then visited the hospital – where you admitted the aggravated burglary to him. Thompson provided this information to Police.
15At approximately 10:40 am on 27 October 2022, Detective Senior Constable Leigh Lambert attended the Hospital. He cautioned you and you made full and frank admissions to committing the aggravated burglary and provided information regarding the South Eastern suburbs address – that is to say within hours of committing the instant offending. Police did not arrest you at that time.
16On Friday 28 October 2022, Police executed a search warrant at the relevant address. The firearms and silver bullion were not located and no evidence was found to further the investigation. Troublingly, the firearms and the silver bullion have not been recovered.
Interview
17You were interviewed by appointment on 31 October 2022 and made yet more admissions. You stated that he had been using ice leading up to the offence and that your intention was to sell the firearms for cash which you would use to purchase more drugs.
18That intention was not realised as you were never paid for your criminality, but rather were assaulted instead. I will deal with the role this plays in the sentencing process in due course.
Case history and timing of guilty plea
19As I have noted, you were arrested within days of the offending and was bailed from the Police station. You have served no time in custody as a result of this offending.
20You formally pleaded guilty to the three charges at the earliest occasion on 10 of February 2023.
21In just over six months, the matter was before me as a plea of guilty. This is consistent with your demonstrated desire to facilitate the course of justice and attitude of genuine co-operation.
Undertaking to assist the Prosecution
22You made a signed statement dated 3 February 2023 in which you identify those who received the firearms.[5]
[5]Exhibit 3- Statement of [David Harris] signed and dated 3 February 2023.
23You also identified two of the males who were involved in the firearms transaction at the South Eastern suburbs address by photo board.
24You gave an undertaking to assist in any Prosecution based on this statement as part of this plea hearing before me.
25Put simply, Mr Lavery submitted that you provided information of a high value to authorities and Mr D’Arcy, with conspicuous fairness accepted this was so.
BIOGRAPHICAL DETAILS
26You are now 27 years of age.
27You were born in the Gippsland area.
28Your parents formed a relationship after your mother had already had one son, and now have a younger brother who is two years younger. Your father was a developer, and your mother undertook home duties for the family.
Education and employment
29You attended school to year 9 level but did not complete that year. You commenced an apprenticeship as a cabinet maker, but only completed one year of that. Following that you worked for approximately one year as a carpenter and then worked with your older brother for a period of one year. You had work as a bricklayer as well.
Injury, drug dependency and prior criminal history
30You had developed a substance abuse problem at age 18, which was exacerbated when age 20, you were the passenger in a motor vehicle driven by a friend. That motor vehicle was involved in a serious collision, and you suffered fractures of the C3 and C4 vertebrae. You discharged yourself from hospital and still suffer ongoing back problems as a consequence of that accident. I am informed that you fell into heavy drug use following the accident.
31Having become heavily dependent on pain relief in this most unfortunate way, you committed a number of largely acquisitive offences in order to finance that dependency. Your criminal history, though relevant, is comparatively short lived and somewhat dated now.
32You received a CCO in September 2018 (your last appearance for four years), which was a treatment focused order which you completed. This gives me comfort that you are amenable to and capable of being supervised and reformed.
33You moved to your parents address and worked at their small local business.
34You had a son in 2020 and had mostly coped with the difficulties arising from the COVID-19 pandemic.
Relapse
35After years of sobriety, you relapsed into drug use in the second half of 2022. You were associating with members of an outlaw motorcycle gang. You were using methamphetamine daily for about a month.[6] The firearms were stolen with the intention of exchanging them for cash, which was to be used to purchase drugs.
[6]Exhibit 4 - CCO Assessment Report dated 3 April 2023.
Post offence
36You were seriously assaulted on that night after the burglary, and the guns were taken from you. They are, as I said, still in the hands of precisely the kind of people who should not have access to them.
37Once seen in hospital by one of your victims you admitted your involvement. You subsequently admitted your involvement to police who attended at the hospital and took part in an interview subsequently where you made full, and frank admissions to this offending.
38You subsequently made the statement I have alluded to earlier and will give evidence in accordance with that statement.
39You are currently drug-free and has been voluntarily undertaking rehabilitation in the form of a community health organisation. You enjoy family support. I note the attendance at Court on the day of the plea a number of family members to support you. You are closely involved in the care of your three year old son.
OFFENDING
40Having outlined the deeper context of the instant offending, I will turn to specific questions of gravity and culpability, before turning to matters of more general sentencing application in due course.
Aggravated burglary
41On the principal charge of aggravated burglary (charge 1), the following factors inform its seriousness, in accordance with the principles in Director of Public Prosecutions v Meyers:[7]
[7](2014) 44 VR 486.
(a) Your intent upon entry was to steal (that is to say it was not ‘grievance based’);
(b) The mode of entry was non-violent;
(c) The time of entry was very late at night or very early in the morning;
(d) You knew the premises to be occupied;
(e) You were not armed when you entered; and
(f) You were later in premises with a co-offender.
42The offending is clearly premeditated and involves a significant breach of trust. It will take some time I expect before you are able to mend the relationship with your grandmother and uncle (neither whom you have been able to contact as it is a condition of your bail – with the latter feeling understandably angry and betrayed).
43What makes this a reasonably serious example of aggravated burglary is the purposive nature of what you were there to steal and did steal. I was not taken to any cases that were said to be comparable or any statistical data that were said to specifically assist me in arriving at an appropriate sentence. I am familiar with current sentencing practices for offences of this kind and have considered them as part of the synthesis in arriving at the sentence imposed.
Firearms offences
44With respect to the firearms offences, specifically the theft of them, our Court of Appeal had cause to consider this offence recently in the sentence appeal of Barry v The Queen.[8] McLeish JA refused leave to appeal a sentence of 2 years and in doing so, noted the following which is worth reciting here as a broad statement of principle at [27]:
The applicant’s base sentence was two years’ imprisonment for the theft of four firearms, two of which were sold and none of which have been located. As this Court has observed, the theft of firearms is a particularly serious kind of theft. The maximum penalty of 15 years’ imprisonment for the offence is 50 per cent greater than the maximum penalty for theft. This recognises that the theft of firearms, as opposed to other types of theft, contributes to the illegitimate flow of firearms in the community and in turn, may facilitate serious criminal activity. The risk presented by the theft and sale or distribution of firearms exists regardless of whether the theft is opportunistic or pre-meditated.
[8][2021] VSCA 321.
45Obviously, this was pre-meditated offending. Obviously, it is a matter of great concern that the guns have not been located or recovered.
Theft
46The silver bullion had a modest value, and it is not clear to me that you knew it was contained in the safe. It certainly wasn’t the focus of your offending. Once found though, it seems that it was seen as further currency for you to exchange for drugs.
MATTERS OF SENTENCING PRINCIPLE
Plea of guilty
47By resolving the matter, you have spared victims and other witnesses the trauma of giving evidence and being cross-examined at a trial. The investigating authorities will not be put to the time and expense of seeking to prove the matter in a potential trial.
48You have acknowledged your wrongdoing and demonstrated a willingness to facilitate the course of justice in more ways than your plea of guilty, but your plea is certainly wholly consistent with your contrition and desire to make things right.
49Pleas are of real utilitarian benefit to this court, particularly in the context of the pandemic, as our Court of Appeal said in Worboyes:
A plea of guilty entered during the currency of the COVID pandemic is worthy of greater weight in mitigation than a similar plea entered at a time when the is community and the courts are not afflicted by the pandemic's effects. A plea of guilty during the pandemic ordinarily should attract a more pronounced amelioration of sentence than at another time. [The sentencing judge] must ensure that the pleas of guilty result in perceptible amelioration of sentence.[9]
[9]Worboyes v The Queen [2021] VSCA 169 at [39].
50These matters warrant a significant moderation and reduction of the sentence to be imposed. I emphasise 'significant moderation'.
51That plea is accompanied by remorse in my view, and it hard to disentangle it and its value from the high degree of co-operation that further mitigates the sentence I am to impose.
Co-operation
52It is very much in the public interest that those who commit offences receive every encouragement by the Courts to inform upon their co-offenders.
53The Courts’ role in fostering cooperation with authorities is capable of producing sentences much lower than those that would otherwise be expected. This is a price that society must be willing to pay.
54The discount varies according to the level of cooperation, its subjective significance, the risks it poses to the accused in assisting and the utility or potential utility of the assistance given.[10]
[10]I have had regard to the principles set out in cases such as The Queen vJohnston [2008] VSCA 133 and DPP vCooper [2018] VSCA 21.
55In this case, you have placed yourself at tremendous personal risk by nominating accomplices in circumstances where physical and personal violence has already been visited upon you. You did so in a timely way. The value of this evidence is not to be underestimated. It appears to be central to the Crown case and as I said Mr D’Arcy noted that it was of high value.[11]
[11]The plea was conducted in closed Court pursuant to s.30(2)(a) and (c) of the Open Courts Act 2013 – an affidavit from the informant being the basis of same, and a suppression order was made which was reflective of just how sensitive the information you have provided is, and how genuine a threat to your safety doing so considered to be.
56I am extremely wary of having you be punished in arduous, protective circumstances and in prison, where you are at real risk of retributive violence as prisoners are not known to be particularly forgiving towards those who help police. This concern about the way in which you ought to be punished also informs the conditions of the CCO I will impose (see below).
57The information you have provided and the evidence you will give is considered by the Crown to be of such high value, I was persuaded by Counsel for the prosecution to deal with one of the usual tangible mechanisms of punishment (unpaid community work) in a slightly different way. Rather than having you exposed to others who may not be on the same road to reform as you on work sites (presenting a risk to you in many ways), it was suggested that I ought to credit the critical counselling and treatment work you are to undergo as counting towards the community work competent. It is a suggestion I will adopt.
58Your attitude towards assisting authorities, does, amongst other things, make it very difficult for you to return to further associate with those criminally minded. This itself speaks of your prospects for reform and more than hints at the reduced need to specifically deter you from offending. More than that, you have committed yourself to a course of assisting authorities which underscores a commitment to living a law abiding life.
59An offender who assists the authorities is entitled to have that assistance considered in mitigation of sentence. An aspect of this factor in mitigation is its public nature. Section 5(2AB) of the Sentencing Act1991 requires the court to announce it is imposing a less severe sentence and have the undertaking and its details noted in the record of the court. Pursuant to s.5(2AB) of the Sentencing Act, if, in sentencing an offender, a court imposes a less severe sentence than it would otherwise have imposed because of an undertaking given by the offender to assist, after sentencing, law enforcement authorities in the investigation or prosecution of an offence, the court must announce that it is doing so and cause to be noted in the records of the court the fact that the undertaking was given and its details. I will do so in this case.
CCO assessment
60I had you assessed for CCO. The author of the assessment report[12] found you to be a high risk of re-offending – a conclusion I can’t agree with. You were frank with the assessor in a way consistent with your need to be discrete given the position you find yourself in. You disclosed your reasons for offending which accords with the account given above. You are not in need of mental health treatment (and you are not receiving any and have never received any) and the Therapeutic Day Rehabilitation Programme you are engaged in, though not formal counselling is beneficial to you. You are certainly suitable for a CCO.
[12]Exhibit 4 – CCO Assessment Report dated 3 April 2023.
ANALYSIS
61In my view, having balanced and weighed the necessary considerations, I share the view of the parties as to what disposition is appropriate here. Mr Lavery argues that the appropriate sentencing disposition is a community corrections order which would provide a more flexible sentencing option, enabling both punishment and rehabilitation purposes to be served together.[13]
[13]Boulton v The Queen (2014) VR 308.
62Mr D’Arcy very fairly on behalf of the Director acknowledges that such a disposition is open to me in this particular case, having regard to the objective gravity of the instant offence and constellation of particularly powerful matters in mitigation that apply here – especially when one factors in the value of your assistance.
63It appears to me that I can denounce your conduct, punish you, deter others as well as you and foster conditions that assist in your reform by imposing a CCO with conditions. This would not be the penalty imposed had you not co-operated in the way you have.
64I have formed the view that the community is best protected by your reform. I found your prospects of reform to be good. You are still young and have the support of good people around you. I find that you have been very much specifically deterred.
65I have also come to the view that despite a truly difficult time with injury and drug dependence, you have proven to be determined, resilient and demonstrably capable of reform in the past. As I said, it will be very difficult for you to return to a criminal milieu now.
SENTENCE
66Providing consent is forthcoming I intend to do is to convict you of each charge and place you on a CCO for a period of 16 months.
67Every CCO, including this one, contains certain core conditions. They are:
(a) You must not commit another offence punishable by imprisonment during the period of the order.
(b) You must comply with any obligation or requirement prescribed by the regulations.
(c) You must report to, or receive visits from, the Secretary during the period of the order.
(d) You must report to Community Correctional Services within two working days of the commencement of this order.
(e) You must notify the Secretary of any change of address or employment within two working days after the change.
(f) You must not leave the state of Victoria, except with the permission from the Secretary.
(g) You must comply with any direction given by the Secretary that is necessary for the Secretary to give, to ensure that you comply with the order.
68The conditions that apply in addition to those mandatory ones are:
(a) That you be the subject of supervision by Office of Corrections.
(b) You undergo 80 hours of unpaid community work.
(c) You undergo assessment and treatment (including testing) for drug abuse or dependency as directed.
(d) That you undergo assessment and treatment (including testing) for alcohol abuse or dependency as directed.
(e) You must undergo programs consistent with the purpose of treatment and rehabilitation, which may include, but is not limited to employment.
(f) I propose to order that all 80 hours of treatment and rehabilitation successfully undertaken are to be counted as hours of unpaid community work for the purposes of the unpaid community work condition.
69I can only impose such an order if you consent.
OTHER MATTERS / DECLARATIONS
70Section 6AAA of the Sentencing Act 1991 applies. But for your plea of guilty alone, I would have sentenced you to a period of imprisonment of 24 months with a non-parole period of 14 months. This is an artificial exercise at the best of times, but made more so in this case because the plea of guilty alone is so hard to disentangle from the wholesale co-operation you engaged in.
71Pursuant to section 5(2AB) of the Sentencing Act1991 I make a declaration that I am imposing a less severe sentence because of the undertaking given to assist authorities by you and I will have the undertaking and its details noted in the record of the court.
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