Director of Public Prosecutions v Humm

[2021] VCC 589

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 20-01491

DIRECTOR OF PUBLIC PROSECUTIONS

v

RHYS HUMM

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:	30 April 2021
DATE OF SENTENCE:	11 May 2021
CASE MAY BE CITED AS:	DPP v Humm
MEDIUM NEUTRAL CITATION:	[2021] VCC 589

REASONS FOR SENTENCE

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Moore	Office of Public Prosecutions
For the Accused	Mr T. Sullivan	Sarah Pratt & Associates

HIS HONOUR: 

1Rhys Humm, you have pleaded guilty to 14 charges that were set out on Indictment C2013274.3.  You have also pleaded guilty to one summary offence being driving whilst your licence was disqualified.

2I will outline the details each of the charges but as an overview there were three charges of theft, three charges of burglary, four charges of handling stolen goods, two charges of arson, one charge of criminal damage and one charge of trafficking in a of drug of dependence.  As an account of the facts will reveal many of the offences are connected.  

3Your offences arise out of your role in an organised criminal group who planned and executed a series of commercial burglaries and related offences in October, November and December 2019.  The group was Daniel Vautier, Dimitri Tsatsaronis, Stephen Zorkau and yourself.  I have already sentenced Mr Zorkau and Mr Tsatsaronis.  The matter of the other co-accused, Mr Vautier, has resolved and is awaiting a Plea Hearing in this Court in July. 

4The first offence in time was the theft of the motor vehicle, a Mitsubishi Pajero.  What occurred more than once, it seems, was your group would use a stolen car of significant size, and perhaps with a bull bar, to ram the doors of selected service stations in order to steal cigarettes.  Charge 1 is the theft of a Mitsubishi Pajero stolen on the 6 October 2019.  It had a bull bar.

5While there is no direct evidence that you personally stole this car, you did use it to commit a ram raid some six weeks later on the Caltex service station in Grovedale.  Your actions caused significant damage to the door area of the service station estimated at about $20,000.  Once inside you and an unknown co-accused stole approximately $20,000 worth of cigarettes.  These offences were charged as burglary, theft and criminal damage, Charges 2, 3 and 4.

6The next episode was three weeks later and it was very similar.  In the early hours of 5 December 2019, you, Tsatsaronis and Vautier or perhaps another man committed a burglary on the BP Roadhouse at Skipton.  You drove a stolen Ford ute through the front door causing significant damage which was calculated at $10,000.  Once inside, you and the other men stole two cigarette cabinets containing approximately $25,000 worth of cigarettes and cash.  You then took the Ford ute along a rural road near Skipton and set fire to it.  This was charged as arson.  It should be noted that although fortunately the fire did to extend beyond the car, you set the fire in summer in a rural setting.  Arson is an inherently dangerous crime.  These were Charges 5. the theft and Charge 6, the burglary.  Charge 7 was handling stolen goods being the ute and Charge 8 was arson, the burning of the ute.

7Police investigators at some point had secured warrants to listen to the telephone calls of your criminal organisation.  What was heard just after the Skipton burglary and theft were negotiations between Vautier and a man in Melbourne regarding the sale of the cigarettes stolen from Skipton.  The call was on your phone and you were with Vautier as you travelled up to Melbourne.  What is revealed is that all you men got for the theft, which caused significant disruption to the small business in Skipton was $3000, which once divided gave you $1000 each for your efforts.  Given what you now face as the consequences, it seems so obviously not worth it.

8Your method of destroying stolen cars by fire, so as to remove any risk of evidence being left was repeated on 10 December 2019 after you became aware that photographic images of the Mitsubishi Pajero that was stolen in October and used on the Grovedale service station burglary were published on the Facebook page of the Geelong Police.  You drove the stolen vehicle to the Sutherlands Creek area in the early hours of 10 December 2019, where you set it alight.  Again, this offence of arson was inherently dangerous given the setting and time of year.  This arson was Charge 9.

9On 13 December 2019, another burglary that took place at the Shell service station in Ocean Grove. While you were not present during this burglary you encouraged the offending by virtue of telephone conversations you had with Mr Zorkau earlier that evening.  You have pleaded guilty to this offence on the basis of your complicity.  Cigarettes were stolen with a value at over $18,000.  The burglary was Charge 10.

10You were arrested at a house in Bell Post Hill on 19 December 2019.  Further search warrants were executed on properties linked to you in Corio and Norlane.  What was found was a stolen Holden Utility vehicle, a stolen box trailer and three stolen number plates.  You were charged and pleaded guilty to three separate charges of handling stolen goods (Charges 11, 12 and 13).

11Investigations into your mobile phone revealed that between 5  December and 19 December, you used your mobile phone to arrange for purchases and concerningly sales of methylamphetamines.  Trafficking in a drug of dependence was Charge 14.

12As to the gravity of your crimes, it is plain enough your crimes were brazen and sophisticated.  There was planning, scoping and organisational communications between you and your co-accused to execute these burglaries.  Properties were chosen, vehicles suitable for ramming service station doors stolen in advance, then burnt to ensure no evidence remained and finally it seems purchasers for the cigarettes were sourced.  At the Skipton burglary, disguises and gloves were worn.  On any measure, these were no minor burglaries and thefts.  Very significant amounts of property were stolen and business damaged and cars destroyed.  The small business that were targeted and their owners suffered as a consequence.  I will refer to the victim impact statement shortly.

13I have already referred to the inherent danger as well as the loss caused by your arson of the stolen cars. 

14I concluded with respect to the other men I have already sentenced, that Mr Zorkau was more of a follower.  Mr Tsatsaronis was more involved, but it seems to me certainly not higher up and perhaps a bit lower than you in any hierarchy.  In my view, the intercepted telephone calls and the number of crimes you were involved in reveal your role was more prominent as an organiser of this criminal organisation, jointly with it seems Mr Vautier.  I say that without having heard anything about or from Mr Vautier.  

15Additionally, unlike your co-accused that I have dealt with so far, you not only used drugs, but the telephone evidence reveals you were also involved in trafficking in drugs.  That adds to the seriousness of the criminality you engaged in during this period of your life.

16The owner of the Skipton service station spoke in his victim impact statement of the significant financial impact of your crimes on his business.  He was worried and unable to sleep properly for three days but then things returned to normal. 

17The brothers who owned the service station at Ocean Grove also spoke of difficulties with sleeping, feeling anxious and hopeless which in turn affected family relationships as a consequence of the burglary. 

18As to your personal circumstances, you are 31 years old.  You grew up in Corio.  You are from a close family.  You struggled at school, leaving at the end of Year 8, but you managed to do very well after you left.  You found work in construction when you were just 16 and went on to complete a Certificate III in Building and Construction.  You have gained other important qualifications and tickets since.  You displayed a strong work ethic and by the age of 18 you had purchased your first house in Corio.  By 21, you had purchased your second house, this time in Norlane.  You obviously were considered a good worker as you remained for five years with your first employer and three with the next.  Your work history is to your credit and additionally it gives greater confidence that you can in the future properly rehabilitate and settle as a contributing family man. 

19Your first long relationship broke down when you were 25, this was in the context of use of methylamphetamines which then increased as a consequence of the relationship ending.  Ice is such a scourge when hardworking men like you are brought down from good solid beginnings to the depths of crime and then the waste of prison.  It was at this time in 2016 and 2017 that you commenced to commit offences.  At first they were driving offences, then quickly it developed into dishonesty and weapons offences that saw you imprisoned for six months in early 2017 followed by a community corrections order.  The community corrections order was breached as was another or an extended community corrections order imposed for non-compliance.  You counsel described this as a swift descent into chaos and criminality.  That said you do not have an embedded history of crime, as yet at least.  

20Although you established a relationship six years ago with your current partner and have two young children, you did not wake up to yourself and give up drugs and unfortunate associates.  

21Your partner has remained supportive of you.  Since your remand, she has remained in daily contact with you, all the while she has had to raise and cope in the pandemic with two pre-school children, one of whom awaits NDIS help for autism spectrum issues.  Your partner gave evidence of how she now has trained and taken up work, adding to her many responsibilities.  Her evidence was impressive.  I pause to state the obvious, you, Mr Humm, should never let her down again.  Your children are important to you, but your own selfish behaviours have caused significant and unnecessary family pressures.  Now is the time to have steely determination that you are not going to leave your family in the lurch again by ending up back in prison.  I assure you that drug taking and further offending will almost inevitably lead to further gaol terms being imposed.

22I note that a good deal of your time on remand was during the very difficult circumstances of the COVID-19 restrictions.  This made gaol much more onerous as visits and programmes were non-existent or heavily affected.  I have added that fact into my considerations of what is the appropriate sentence. 

23You also have very considerable support from your parents, siblings and wider family.  In particular, you and your partner have had very valuable practical support from a generous uncle and aunt.  The letter from them as tendered on the plea was insightful and helpful.

24I was told that you sought out some rehabilitation for mental health and drug use in 2019 before you were arrested.  Obviously, it had little or no effect as you were at the time or soon thereafter involved in this crime spree.  However, it does indicate some willingness to deal with drug use and underlying causative mental health problems.  Further, there was evidence from your partner that she thinks you have woken up to yourself while in prison and upon your release, you are likely or more likely to remain out of trouble especially if you stay away from those associates that you committed these crimes with.

25On balance I think your prospects of rehabilitation are solid, the key being that you show the same level of commitment to do the right thing as your family has shown to you in these difficult times.  That will include your commitment to looking after your mental health.  I do point out that any difficulties with your mental health were not explicitly relied on by your Counsel as mitigatory.

26Your plea of guilty is important and means that your sentence will be less than it otherwise would have been.  The plea came during a period of the suspension of jury trials in Victoria and thus has particular utilitarian value.  The timing of your plea was complicated by an understanding of the concepts of complicity for the Ocean Grove burglary where you were not present but involved as criminally associated through your encouragement.  In the end, I see your plea as reasonably early and as evidence of remorse.  Your partner spoke of you taking responsibility and your aunt and uncle’s letter likewise speaks of your remorse.  This is to your credit and is part of my finding about your positive prospects for rehabilitation. 

27Given that your crimes were committed with other co-accused who I have sentenced, parity is a live issue.  Both Tsatsaronis and Zorkau had more extensive criminal histories and were on court orders at the time of the offending.  Against that, the personal circumstances, the role and the extent of the criminality favour the other men in comparison to you. 

28Tsatsaronis had an acquired brain injury.  His array of offences were fewer than yours.  Zorkau was the least involved and has the fewest number of crimes.  You were involved in crimes with both men, but those two were not involved in crimes with each other. 

29As I concluded, notwithstanding Tsatsaronis' acquired brain injury, the just application of parity required that his sentence be more than Zorkau.  In the end, I consider your sentence must be longer than each of those men, due to differences in your role, especially vis-à-vis Zorkau, your greater number of crimes and the absence of anything like the mitigatory weight to be attached to an acquired brain injury that Tsatsaronis has.

30Your Counsel conceded that a head sentence and a non-parole period were the only options open to me.  He urged that a significant period of potential parole be made available so as to assist you in rehabilitating and returning to your family.  The prosecution also submitted that a term of imprisonment with a non-parole period was the only option.

31I agree with both counsel.  In my view, given the gravity and the number of offences, the proper expression of punishment, denunciation, deterrence together with your rehabilitation can only, in most circumstances, be achieved by a term of imprisonment with a non‑parole period fixed.  Whether and when you are granted parole is for others not the courts.  I will allow for an appropriate period of potential parole but I repeat what the appellate courts have said time and again, that is, there are no fixed formulas.  

32Unlike the other offenders given the number and different types of offences, I will not impose an overall aggregate sentence, but do so for the burglary and thefts and criminal damage involved in each of the ram raids on the services stations where you were present.  In doing so, I keep well in mind the principles of totality and parity.  By that, I mean I have considered and then reconsidered the individual sentences, the orders for cumulation and the appropriate comparison with other offenders.  In doing so, I have adjusted to ensure that the sentences and the total sentence and non-parole period fits in a proportionate way the totality of your criminality no more and no less.  Doing the best I can, I impose the following terms of imprisonment.

33Charge 1, theft of a car, 10 months.

34Charges 2, 3 and 4, the theft, burglary and criminal damage at Grovedale service station, an aggregate term of 24 months.

35Charges 5 and 6, the burglary and theft at Skipton, 22 months.

36Charge 7, the handling a stolen car at Skipton, 10 months.

37Charge 8, arson, 20 months.

38Charge 9, arson, 20 months.

39Charge 10, the burglary at Ocean Grove, 14 months.

40Charge 11, the handling a stolen car, nine months.

41Charge 12, the handling a stolen trailer, four months.

42Charge 13, the handling of the stolen number plates, six months.

43Charge 14, the trafficking in a drug of dependence, 10 months.

44For the summary offence of drive whilst disqualified, one month.

45The base sentence is the aggregate term of 24 months imposed on Charges 2, 3 and 4.  I order that one month of Charge 1, 10 months of the aggregate term that was imposed for Charges 5 and 6, one month of Charge 7, eight months of both Charge 8 and Charge 9, four months of Charge 10 and one month on Charge 14 are cumulative on each other and on the 24-month base sentence; gives a total effective sentence of four years and nine months.

46I fix a minimum non-parole period of two years and 11 months.

47You have been on remand since your arrest in December 2019.  The number of days is - gentlemen, can you help me here?  Sorry, Mr Moore, it was on mute?

48MR MOORE:  Five hundred and nine, Your Honour. 

49HIS HONOUR:  Is that right, 509?

50MR SULLIVAN:  That is correct, Your Honour.

51HIS HONOUR:  Thank you.  You have now been in remand since your arrest - that is 509 days.  This figure having been reckoned, I declare it as part of the sentence of the sentence that I have just imposed.  I will ensure that this declaration is entered into the records of the court so the prison authorities know that you have already done 509 days. 

52Had you pleaded not guilty to these offences and been found guilty of them, I would have imposed a sentence of six years with a non-parole period of four years.

53Is there any orders required?  Licence with respect to the summary offence or any mandatory matters, Mr Moore?  I am not seeking them out but if there are mandatory matters then - - - 

54MR MOORE:  I was just looking - theft of a motor car - - - 

55HIS HONOUR:  Yes.

56MR MOORE:  - - - requires a mandatory disqualification of at least six months - recollection.  Would Your Honour just bear with me a minute?

57HIS HONOUR:  Yes.

58MR MOORE:  So that would apply to the theft of the Pajero.

59HIS HONOUR:  Yes.  So it applies, that.  But is it six months?  Minimum?

60MR MOORE:  I believe it is, yes, Your Honour.

61HIS HONOUR:  Thank you.  Do you have any debate about that, Mr Sullivan?

62MR SULLIVAN:  No, Your Honour.  

63HIS HONOUR:  Thank you.  I am required, Mr Humm, to cancel and disqualify you from driving in the State of Victoria.  So I cancel all your licences.  There is a minimum term of six months I am told.  I only impose the minimum term of six months.  If there is something to be adjusted about that in later course, then that will be adjusted.  But it is the minimum here and it starts now.  So hopefully when you are able to, you can be relicensed and get back to work.  Is there anything further required?

64MR MOORE:  No, Your Honour.  

65HIS HONOUR:  Mr Sullivan?

66MR SULLIVAN:  No, Your Honour.  Thank you.

67HIS HONOUR:  Thank you.  I will leave and there will be some capacity for - briefly - you to speak to Mr Humm.  Not the family but just Mr Humm, as I understand it, because he is in prison.  Thank you.  I thank counsel for their assistance.

68MR SULLIVAN:  Thank you, Your Honour.  The court pleases.

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