Director of Public Prosecutions v Jackson

[2025] VCC 97

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-23-01470

DIRECTOR OF PUBLIC PROSECUTIONS

v

SCOTT JACKSON

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JUDGE:	HER HONOUR JUDGE BLAIR
WHERE HELD:	Melbourne
DATE OF HEARING:	14 March 2024, 5 February 2025
DATE OF SENTENCE:	12 February 2025
CASE MAY BE CITED AS:	DPP v Jackson
MEDIUM NEUTRAL CITATION:	[2025] VCC 97

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence

Catchwords:              Theft – burglary – obtain financial advantage by deception – theft of firearm – prohibited person possess firearm – early plea of guilty – court integrated services program – AOD treatment and rehabilitation   

Legislation Cited:      Sentencing Act 1991 (Vic)

Cases Cited:Benkic v The Queen [2019] VSCA 34; Barry v The Queen [2022] VSCA 94

Sentence:                  Imprisonment for a period of 283 days (reckoned as served) and Adjourned Undertaking for a period of 18 months

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Paul D'Arcy	Sam Harper-Russell
For the Accused	Matt McLellan	Megan Critchley

HER HONOUR:

1Scott Jackson, on 12 February 2024 you pleaded guilty on Indictment P10917294 to two charges of shop-theft, one charge of theft, one charge of obtain financial advantage by deception, one charge of burglary, one charge of theft of firearm and one charge of prohibited person possess firearm. You admitted a significant prior history.

Circumstances of offending

2The summary of prosecution opening dated 27 January 2024 which details the agreed factual basis of your offending was read and tendered at your plea. In summary:

3Your co-accused in this matter is Melissa Smith, with whom you were in a relationship at the time. Some of your offending occurred in the presence of your daughter and Ms Smith’s son.

4In the afternoon of 29 April 2023, you and Ms Smith entered the Myer store at Ballarat Central. You both lingered in sections of the store before leaving without paying for the following items:  Calvin Klein camera bags; Calvin Klein crossbody bag; Calvin Klein tote bags; six sunglasses; six perfume bottles. These items had a total value of $3,994.00. (Charge 1 – Theft from shop)

5Later the same day, you and Ms Smith entered the Rebel Sports store in Ballarat Central with your children and some other adults. You both selected various clothing items and placed them in a pram before leaving without attempting to pay. The total value of the items taken was $1,934.81. (Charge 2 – Theft from shop)

6Later that evening one of the victims parked his car outside his property. The next morning, he noticed the passenger door of his vehicle was unlocked and the car had been rummaged through. You and your co-accused took the following items: a Republic of Philippines issued passport; housekeys; and a wallet containing NAB, Latitude and Westpac bank cards. (Charge 3 – Theft)

7The victim reported the theft and two detectives attended the scene later that day. Sometime after the attendance of the police the victim noticed and reported several unauthorised bank transactions on his bank card.

8Between 3.00 am and 3.30 am on 30 April 2023, you and your co-accused used the victim’s cards to make the following transactions: group electric scooter hire at Neuron Mobility for $10.89; car wash services at Brad Fisher for $12.30 and; three separate goods purchases from APCO Service Station totalling $187.78. (Charge 4 – Obtain financial advantage by deception)

9On 29 April 2023, two other victims went to bed in their home in Ballarat Central. The next morning, one of the victim’s noticed that their garage door was half open and the handle to their gun safe was in the open position. The safe did not otherwise appear to be damaged. (Charge 5 – Burglary)

10The victim looked inside the safe and noticed one firearm had been moved within the safe, two had been taken from the safe and placed to the side of the safe, while the following six were missing:  A Fabarm shotgun, a Lithgow fire rifle, a Winchester centre fire rifle, a Lithgow .22 rim fire rifle, a Bruno .22 rim fire rifle, and a Browning .22 rim fire rifle. (Charge 6 – Theft of firearm)(Charge 7 – Prohibited person possess a firearm)

11The victims also noticed that the car in the garage had been opened, but nothing had been taken. A fingerprint was taken from the window frame of the car and was matched to the right ring finger of Ms Smith.

12On 1 May 2023, police were notified that you and Ms Smith were around the Ballarat railway station. You and your co-accused, along with the two children and several bags, boarded a Melbourne bound train.

13The police arrested you and your co-accused at Bacchus Marsh train station. You were taken to Geelong police station. The police searched your bags and found all of the items taken from Myer and Rebel Sport, as well as all of the items taken from the first victim’s car.

14The six stolen firearms were also located by police. The police seized and searched your phone and the phone of your co-offender where they found a number of texts believed to be related to the movement of the firearms for sale.

Nature and gravity of the offending

15The majority of your offending is capable of summary determination and is routinely dealt with in the Magistrates’ Court. Your prior history indicates that you have been a regular attendee in the Magistrates’ Court dealing with similar drug and dishonesty related offending. In this instance it is Charge 6, the theft of firearms that elevates your case to this court.

16Theft of firearms is a particularly serious species of theft.[1] Theft of such items increases the likelihood that firearms circulate illegitimately in the community and become useful in seriously dangerous criminal activity. By fixing the higher penalty of 15 years' imprisonment for this category of theft, as opposed to 10 years' imprisonment for theft simpliciter, Parliament has made clear the seriousness with which the theft of firearms is to be viewed.

[1] Benkic v The Queen [2019] VSCA 34.

17Ms MacDougall, who initially appeared for the prosecution, acknowledged that all of the firearms stolen by you and your co-offender were ultimately located and seized by the police, however, she submitted that this was still grave offending. Ms MacDougall also highlighted the messages found on your co-offender’s phone that indicate you were planning to sell the weapons. Further, the burglary was committed on a residential property where the residents are entitled to feel safe. Notwithstanding that the burglary was confined to the garage, it nevertheless remains a breach of privacy and sanctity of the victims’ home.

18Your counsel Mr McLennan appropriately conceded that the theft of firearms was a particularly serious offence and was the most serious of those to which you had pleaded guilty. Mr McLennan submitted that in your case all six firearms stolen were located and seized by police and therefore none of the firearms ever entered the community for circulation. Thus, the risks contemplated in authorities such as the cases of Benkic and Barry did not materialise.[2]

[2] Ibid; Barry v The Queen [2022] VSCA 94.

19Mr McLennan also submitted that your offending lacked sophistication and organisation and was opportunistic in nature. Further, that you targeted the garage rather than the house and had no knowledge that you would find firearms. Each of these factors, submitted Mr McLennan, reduced the objective gravity of your offending.

20I accept the submissions of your counsel in circumstances where they are supported factually. There was no damage caused to the garage door and no damage caused to the gun safe. This supports the contention that there was a lack of pre-planning and premeditation. Further, you and your co-offender were reliant upon public transport and had to take the property you stole on the train. I note that Ms MacDougall for the crown accepted that you had no prior knowledge of the firearms.

21In my view the recovery of the firearms is an important factor which puts your offending in a less serious category from cases where the stolen firearms are disposed of and not located. Given the burglary was confined to the garage of the home I accept that it is less serious than a burglary where the living areas are accessed. That is not to say it is not a serious offence that would have left the victims feeling violated and insecure within their own home.

22Regarding the thefts from the shops and the obtaining financial advantage by deception, I accept the submission of your counsel that this was low level offending as evidenced by the relatively low value of the goods involved.

23Overall, I consider your offending to be opportunistic and unsophisticated. In my view your offending lacked planning as was clearly identified by the fact that you had stolen six longarm firearms and were left to travel with these, the other stolen goods, your belongings and two children on a V/Line train. You were easily identified and apprehended by the police.

Personal circumstances

24You are currently 44 years old and you were 43 at the time of the offending. You grew up with your mother after your parents separated when you were five years old. You resided in public housing in Fitzroy for a time before moving with your mother and siblings to Kilsyth.

25Your parents both struggled with alcohol issues and there was little supervision or support in the family home. In this context you were exposed to multiple adverse childhood experiences including family violence and neglect.

26Despite such difficulties you maintained a close relationship with your father until he passed in 2011. Sadly, your mother and two siblings have also passed away. The premature passing of your family members has had a profound and devastating impact upon you. Most recently your mother passed while you were on remand, and you were unable to attend her funeral. Unfortunately, this is not the only loss and grief you have suffered in your life.

27Your education was challenging. Not only did you experience learning difficulties, but you also struggled to focus and sustain attention in class often leading to behavioural issues. You left school mid-way through Year 11 to commence an apprenticeship as a roof tiler. You worked as a roof tiler for over a decade and also worked in an abattoir between 2007 and 2013. You have been employed for a good portion of your adult life. You have also indicated your desire to work in an abattoir upon moving to the Gippsland area.

28You have two adult children from your first significant relationship. You have had limited contact with them as a result of your drug use, criminal activities and incarceration. You have a four-year-old daughter, Arabella, with your co-accused Ms Smith. You were also a father to Jye, Ms Smith’s son from another relationship. Arabella is very clearly a powerful motivator for you.

29In terms of alcohol and drug use, you commenced drinking alcohol in your teens, and at one point were drinking 15 to 20 cans a day. I understand this was an attempt by you to escape your childhood. You began smoking cannabis socially at around age 15. You started smoking methamphetamine around the age of 20. What began socially soon progressed to regular daily use. At times your use increased to 1.7 grams a day, which led to physical health implications including being awake for eight consecutive days and experiencing hallucinations. You have use methamphetamine intravenously. You recognise that ice has been your downfall and to my observation you have suffered the crippling and destabilising effects of addiction for many years.

30You have dabbled in other illicit substances, including GHB, acid, mushrooms, cocaine and MDMA. You started heroin use prior to your remand, using it to assist with sleep. During your episode of care with CISP you have reflected on your heroin use – all your drug use, actually – but your heroin use particularly, given the implications heroin use had for your siblings. Whilst on remand, you began buprenorphine injections which have continued in the community.

31In the past, you have struggled to maintain abstinence and you have been entrenched in a cycle of drug use, offending and incarceration.

Criminal history

32You have admitted a 22-page prior criminal history. Your past offending primarily involves dishonesty and drug offending which appears to have been the mechanism of maintaining what would have been an expensive addiction. Prior to being granted CISP bail, you had never participated in drug and alcohol counselling despite being sentenced to numerous terms of imprisonment and community-based dispositions.

Plea of guilty

33By way of mitigation your counsel, Mr McLennan, submitted that your plea of guilty was entered at committal mention which was in effect at the earliest opportunity. I consider yours to be a very early plea. No witnesses were required to give evidence and the court system was spared the substantial expense and resources of contested proceedings. In these circumstances, your plea has significant utilitarian value, and I find you have facilitated the course of justice. I also accept that your plea of guilty is indicative of some remorse on your part and I intend to allow a significant discount for your plea of guilty.

Prospects of rehabilitation and deferral of sentence

34At your plea, nearly 12 months ago, your counsel conceded you had guarded prospects of rehabilitation owing largely to your criminal history and previous inability to remain abstinent in the community. Notwithstanding these factors Mr McLennan submitted that a combination penalty was the appropriate sentencing disposition open to the court. I ordered a pre-sentence report to determine your suitability for a Community Correction Order.

35The author of the pre-sentence report assessed you as a high risk of general offending and found you unsuitable to undertake such an order. In justifying this decision the Corrections representative said that you had been assessed as unsuitable for the following reasons:  'In combination with Mr Jackson’s assessed risk and history of non-compliance, this service holds reservations as Mr Jackson displayed limited insight into his offending and expressed limited motivation to engage with treatment and rehabilitation services to address the risk of further reoffending.'  Further to this, the assessor said that in line with current CCS policy she would not provide order recommendations, and she did not.

36During the plea hearing, and after having heard the submissions of your counsel, you impressed me as a person who had the capacity for change and who was willing and ready to rehabilitate. In circumstances where you indicated a return to Melbourne, I ordered a CISP assessment with a view to release on bail and a deferral of sentence pursuant to section 83A of the Sentencing Act.[3] You were assessed by Ms Megan Kew on 28 February 2024 and the report was provided on 12 March 2024. Ms Kew found you suitable for CISP bail provided that you participate meaningfully and maximise the supports available. I granted CISP bail on 14 March 2024 and deferred your sentence to allow your capacity for and prospects for rehabilitation to be assessed; to allow you to demonstrate that rehabilitation had taken place and to allow you to participate in the CISP program which was aimed at addressing the underlying causes of your offending.

[3] Sentencing Act 1991 (Vic) s83A.

37Since your release on bail you have regularly come before the court for CISP reviews. You have appeared for review on 15 April 2024; 15 May; 18 June; 24 July; 5 September; 16 October; 5 December 2024 and 28 January 2025. The majority of these reviews have been conducted in person and you have travelled from the outer south-eastern suburbs into the court to appear. You have been punctual and polite. You have engaged with the review process enthusiastically and have advocated well for yourself.

38Prior to each hearing, Ms Kew provided a CISP progress report, and either Ms Jones or Mr Arthur provided an AOD counselling progress report. These reports are overwhelmingly positive. Initially, your sessions focused on building rapport and developing a therapeutic alliance. Throughout the deferral you have been described as polite, engaged, open and forthcoming. You attended punctually, and whilst some appointments were missed, you usually communicated well with the CISP team. After discussion with you and given concerns with your functioning CISP arranged a neuropsychological assessment to be undertaken. The results of this assessment were noted and the CISP team used the report, information and recommendations to skilfully tailor treatment to your needs and in a way that has proved to be very effective.

39Referrals were made to outside agencies for grief counselling and AOD services. These were ultimately not successful. However, the CISP team were flexibly able to adjust and refer you for inhouse treatment, in particular you were introduced to Ms Sharrome Jones with whom you quickly developed a strong therapeutic relationship. As a dual diagnosis clinician, Ms Jones was able to counsel you in relation to AOD, mental health and grief issues.

40Unfortunately, during your episode of care Ms Jones resigned from CISP. Although this was difficult for you to accept, you were able to adapt. Mr David Arthur took over your treatment and spent some time developing rapport. The skill and care involved in this transition enabled you to feel comfortable and develop the trust required to continue your rehabilitative journey.

41I acknowledge that during the CISP reviews, the prosecution notified the court of the alleged commission of three further shop theft and theft charges, two in April and one in July 2024. I note that these matters are listed in the Magistrates Court, and they will be dealt with in that jurisdiction in due course. I have put them to one side as unproven outstanding matters.

42Mr Jackson, there have been several things that have impressed me during the deferral period. First, you have consistently presented as abstinent from alcohol and drugs, this is despite emotional and traumatic triggers that have occurred. You have suffered further loss and endured the recurring anniversaries and memories that in the past would have seen you relapse, yet you have remained strong. You have drawn on the supports provided and have developed resilience, strength and insight.

43Second, you have presented as a caring and present father to your young daughter Arabella. Toward the end of 2024, for reasons outside your control, Child Protection became involved. Despite your frustration at the interruption this caused to your contact with your daughter, you have been compliant and co-operative with DFFH. You consented to the exchange of information from Ms Kew to the Department and given the real effort and progress you have made Ms Kew was able to advocate positively on your behalf. You have embraced the opportunity to have contact with and care for your daughter. You have shared several milestones with her in this important developmental period of her life. It is apparent that Arabella is a protective and motivating factor that has spurred your reform.

44Third, is your commitment to change. In their reports, the CISP team have described you as either being in the action stage of change and more recently as being in the maintenance stage of recovery. You attended 24 alcohol and drug appointments and now present with stable mental health and no active AOD concerns. You enjoy a supportive and loving relationship with your new partner Megan, and you have plans and hopes for a positive future. You have used your time on the CISP program to work on yourself and are likely in a better position to take up employment and maintain the positive changes.

45In my view, you have approached your CISP bail in an outstanding manner. I take into account the very considerable efforts you have made towards reform over the almost 12 months on deferral. Further, I take into account the significant discharge planning that has been undertaken by CISP and I am comforted by the fact that referrals have been made for your ongoing care. In terms of sentencing, it is my view that both you and the community would be best served if you are able to continue on this path of rehabilitation uninterrupted.

Sentencing principles

46The basic purposes for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community.

47Given the seriousness of your offending, general deterrence is a prominent sentencing factor. In my view the sentencing factors of general deterrence, just punishment and denunciation, can be addressed by the imposition a term of imprisonment that does not require your return to gaol.

48As I have said, although protection of the community remains a relevant consideration, in my view this is best achieved by your continued rehabilitation. I consider the evidence of rehabilitation in your case to be exceptional.

⁴⁹I take into account the sentencing guidelines referred to in section 5 of the Sentencing Act,[4] where relevant to your case. In particular, I have had regard to the sentencing landscape for theft of firearm offences.  Ultimately, the sentencing exercise requires that I balance all relevant factors and make a judgment as to the just and appropriate sentence in the circumstances of your particular case.

[4] Sentencing Act 1991 (Vic) s5.

50The principles of totality, proportionality and parsimony are also very important considerations. They require me to make sure that I impose an appropriate sentence in line with the total criminality and gravity of your offending and that I do no more than is necessary to punish you. I have taken these principles into account in fixing the length and structure of the sentence I will now impose.

51So, taking into account all the different factors relevant to this case including the gravity of your offending, the submissions of prosecution and defence counsel, mitigating matters, current sentencing practices and your exceptional and outstanding performance on the deferral of sentence, I have decided to take the unusual course of securing your further rehabilitation by placing you on an adjourned undertaking with conviction. At your further plea hearing I indicated this as a potential sentencing option. Mr D’Arcy for the prosecution acknowledged your considerable reform and did not argue against such a disposition. The CISP team and your counsel were supportive of such a disposition. I am mindful that you will be moving to a new area and have a chance for a fresh start.

Disposition

52Mr Jackson, on each of the charges you are convicted.  On the charge of burglary, theft of a firearm and prohibited person possess a firearm, you are sentenced to an aggregate term of 283 days' imprisonment. You have served 283 days by way of pre-sentence detention, and I reckon this as time served by way of pre-sentence detention. I have taken into account by way of totality that you had been on remand for a period of 318 days, however, a portion of this time was reckoned for other offending committed at a time proximate to the matters now before the court.

53On the remaining two charges of shop theft, the charge of theft and obtaining financial advantage by deception, I propose to adjourn those matters on an adjourned undertaking for a period of 18 months.

54The conditions of that undertaking will be that you are of good behaviour and that you do not commit an offence punishable by imprisonment in the operational period. A special condition of the order will be that you abide by the future recommendations proposed by Ms Kew in her finalisation report dated 3 February 2025, and namely that is that you engage with your general practitioner for oversight of your medical and mental health treatment needs; that you obtain a mental health care plan for referral to a clinical psychologist and access subsidised mental health treatment; that you continue exploring employment opportunities via employment agencies; and that you self-refer to community AOD services should there be future concerns around the risk of lapse or relapse into substance use.

55So, Mr Jackson, do you understand what is involved in such an order.

56ACCUSED:  Yes.

57HER HONOUR:  And do you consent to doing an order.

58ACCUSED:  Yes.

59HER HONOUR:  I should let you know, if you do happen to breach that order, it will come back before me and then re-sentencing is an option.

60ACCUSED:  Yes.

61HER HONOUR:  I don't expect you will breach, and if you continue the way that you have on deferral, I see a very positive future for you.

62ACCUSED:  Thank you.

63HER HONOUR:  I think you've developed some really important therapeutic relationships there - - - 

64ACCUSED:  Yeah.

65HER HONOUR:  And can I just say to CISP, thanks Ms Kew and Mr Arthur I am  grateful that you stepped in and have helped, - - - 

66ACCUSED:  That's what I said to Megan just before when I had an appointment with her, like I can't thank her enough, you know, like it's - - - 

67HER HONOUR:  Yes, certainly it just seemed to be the right thing at the right time.

68ACCUSED:  Thank you.

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