Director of Public Prosecutions v Jeffrey

[2020] VCC 45

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

AT MELBOURNE

CRIMINAL DIVISION

CR-19-00942

DIRECTOR OF PUBLIC PROSECUTIONS

v

MATTHEW JEFFREY

---

JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Melbourne
DATE OF HEARING:	10 December 2019
DATE OF SENTENCE:	31 January 2020
CASE MAY BE CITED AS:	DPP  v  Jeffrey
MEDIUM NEUTRAL CITATION:	[2020] VCC 45

REASONS FOR SENTENCE

---

Catchwords: Burglary, Theft, Theft of Firearms
Sentence: New Non Parole Period of 21 months imprisonment.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D. Cordy
For the Accused	Ms E. Millar

HIS HONOUR:

1       Mathew Jeffrey, on 10 December 2019 you pleaded guilty before me at the Bendigo sittings of the court to a number of charges.  The charges were contained in indictment J13381307.  You pleaded guilty to one charge of burglary for which the maximum penalty is imprisonment for 10 years and one charge of theft for which the maximum penalty is also imprisonment for 10 years and one charge of theft for firearms for which the maximum penalty is imprisonment for 15 years and one charge of handling stolen goods for which the maximum penalty is also imprisonment for 15 years.

2       In addition to the charges on the indictment you also pleaded guilty to one charge of failing to answer bail, a related summary charge.  Through your counsel, Ms Millar, you agreed to having that related summary charge dealt with by me in the court.  When you were arraigned you admitted prior convictions from seven previous court appearances between 2008 and 2018.  You also admitted prior convictions for driving offences in New South Wales in 2009. 

3       The circumstances of your offending are contained in an amended prosecution summary dated 10 December 2019.  That document was read to the court in part by the prosecutor, Mr Cordy, and your counsel, Ms Millar agreed that the prosecution summary was accurate and forms a proper factual basis upon which I can proceed to pass sentence upon you.  In those circumstances it's not necessary that I again recite all of the facts that bring you before the court but do so only in an abbreviated way.

4       These sentencing remarks should however be read in conjunction with what is described in more detail in the prosecution summary.  At the time of offending you resided at 35 Dobinson Street, Echuca.   The victim in this offending resided next door at No.33.  At about 10.30 am you and your two co-offenders gathered in your backyard.  The two co-offenders jumped the back fence into No.33 whilst you remained in your property monitoring the driveway entrance to the victim's property by CCTV.  You acted as a lookout.  It was the intent of you and the co-offenders to steal from the victim's premises.

5       Charge 1, burglary.  The two co-offenders stole a number of items from the victim at No.33 and threw them over the back fence into your backyard where you assisted in their removal.  Stolen from the premises at No.33 Dobinson Street were a .223 calibre Remington 700 SBS Tactical rifle with a Bushnell Elite Tactical scope.  The gun was registered to your neighbour, the victim, and was valued at about $2500.  Also stolen was another gun, a 7 millimetre Remington Magnum Power 1500 rifle with a Bura scope.  This gun was also registered to your neighbour, the victim, and was valued at about $1500.

6       Charge 2, theft of firearms.  Both weapons can be regarded as being high powered.  Also stolen was a custom-built computer valued at approximately $2500, a Samsung mobile telephone valued at approximately $400, as well as assorted jewellery, tools, a compound bow and a Toshiba laptop.  Charge 3, theft.  When you were arrested you were found to be in possession of stolen identification cards belonging to another.

7       Charge 4, retention of stolen goods.  The firearms and a number of other items stolen were later recovered by police and returned to the victim.  The two stolen firearms and some of the other items were later found by police in a vehicle located at another address in Echuca.  A mobile phone found in the vehicle with the firearms that belonged to co-offender McLeod when analysed revealed a Facebook conversation with you discussing the possible on sale of the two firearms.

8       On 24 December 2018, six days after the burglary, police executed a search warrant at your home and in the process they seized your mobile phone.  Analysis of it also revealed the Facebook conversation with McLeod about selling the guns, as well as an SMS conversation with another person about selling the guns.  I conclude that it was always your intention to steal the guns and on sell them.  You were arrested and charged and when interviewed you cooperated with the police and in a detailed record of interview you explained your involvement in the burglary and theft.

9       You said you were under pressure from the co-offenders to act as you did and you needed money for Christmas in 2018.  On 24 December 2018 you were arrested and released on bail in relation to these charges.  You failed to appear at a committal mention on 3 April 2019.  Summary charge, failed to answer bail.  You were again arrested on 30 April 2019 in relation to other offending and you've remained in custody since that time.

10      At the plea hearing I was told that your bail was revoked on these charges on 15 May 2019.  However, on 30 January of this year your counsel notified the court via email that subsequent to the plea hearing you were dealt with in the Bendigo Magistrates' Court on 24 January for the unrelated offending for which you were arrested in relation to on 30 January 2019.  That further offending was for driving offences, theft and burglary and some of the offending occurred whilst you were on bail for the offending that I am to sentence you.

11      I was told you were sentenced in the Bendigo Magistrates Court on 24 January 2020 to a term of imprisonment of one year and nine months and a non parole period of one year was fixed by the magistrate who declared 271 days pre-sentence detention which included the 261 days on 15 May 2019 when your bail on these charges was revoked.  This gives rise to two matters which I must have regard to in passing sentence.  Both are intertwined.

12 The first is the question of totality. The second is the fixing of a new non parole period required in the circumstances by operation of s.14(1)(b) of the Sentencing Act 1991. In sentencing you I have had regard to both of these issues. In the sentences I shall shortly pass some of it will be served concurrently with the sentence you are currently serving and I will fix a non parole period from this day so that there will be certainty as to your release date.

13      Whilst in custody you have been working in the prison as a billet and also mowing lawns and gardening and you have been offered a position mediating disputes between prisoners.  One of your co-offenders, McLeod, was dealt with in the Bendigo Magistrates' Court on 7 November 2019.  He pleaded guilty to two charges of being a prohibited person, possess a firearm and two charges of handling stolen goods.  In his case the prosecution conceded it could not prove beyond reasonable doubt that he was involved in the burglary and theft of the firearms.

14      He was sentenced to 203 days imprisonment time served.  McLeod is aged 26 and had a lengthy criminal history commencing in the Children's Court for offences mostly related to drugs and dishonest and driving a motor vehicle.  The other co-offender was Dillon Everett, p.27.  He was to plead guilty to similar charges to those for which McLeod was dealt with in the Magistrates Court on 17 December 2019 but I have not been provided with details of his sentence.

15      

What is clear is that you fall to be sentenced on a different basis to both McLeod and Everett.  You fall to be sentenced on different and in my view, far more serious charges to those for which both McLeod and Everett have been dealt with.  The theft of firearms where the purpose is for re-sale, as here, is

self-evidently serious offending.  The prospect of firearms being sold on the black market as it were and the firearms falling into the wrong hands and perhaps for the purposes of use in crime, make this offending a serious example of what is a serious offence.

16      The sentencing for the crimes which you have committed must be guided by proper application of the principles of deterrence both general and specific denunciation and protection of the public.  I must also have full and proper regard to all of your background circumstances and your prospects for rehabilitation.  Your counsel conceded that theft of firearms is a serious offence.  She submitted this offence falls towards the lower end of offending of this kind.  In my view it falls at the higher limit of the lower end.  That is, because the intent was to sell the guns as evidenced by the Facebook conversation and SMS messaging.

17      I accept that the damage caused by the offending was ameliorated to some extent by recovery of the guns and there is no evidence that the guns were used in any way.  I accept that you have been charged on a joint criminal enterprise basis and that you did not actually physically carry out the burglary and theft.  I do not accept your counsel's submission that you should not be treated as a principal offender.  I think you were involved in the planning and carrying out of these offences committed against your next door neighbour.

18      The fact remains the prosecution could not prove either McLeod or Everett acted as principals and physically carried out the burglary and thefts.  In acting as the lookout you carried out an important role in the offending.  You have pleaded guilty to the charges and that is to your credit.  You indicated that you would plead guilty at a committal mention on 15 May 2019 and I treat you as having indicated that you would plead guilty at the earliest possible opportunity.

19      By your pleas of guilty you have saved the time and cost of a trial.  By your pleas of guilty you have admitted responsibility for your crimes and you have facilitated the administration of justice.  Because you have pleaded guilty, the law provides that you are entitled to a reduction in sentence and this will be reflected in the sentence that I will shortly pass.  I accept you are remorseful for your offending.  There was no victim impact statements filed.

20      You have a number of serious prior convictions.  In January 2008 you were convicted of arson and intentionally destroying property.  In July 2007 you were convicted in this court of intentionally causing a bushfire and of reckless conduct endangering serious injury.  You received a prison sentence of three years with the minimum of two years.  In August 2012 you were sentenced to two months imprisonment for criminal damage.  In May 2016 you were dealt with in this court by Judge Davis. 

21      Amongst other offences you pleaded guilty to charges of burglary and arson.  You received a sentence of 14 months imprisonment and a community corrections order for a period of two years to commence upon your release from prison.  You were released from prison after taking into account a sentence for subsequent offending on 18 April 2017 so that you were still subject to the community corrections order imposed by Judge Davis as part of her sentence when this offending occurred.  That aggravates your offending here.

22      Your counsel, Ms Millar, filed a detailed and helpful written submission on your behalf and she spoke to it on the plea hearing.  In dealing with your background I borrowed from that document, Exhibit 1.  Ms Millar also tendered and relied upon psychological reports from Next Door Psychology dated 19 September 2019, Exhibit 2, and a report from Ms Gina Cidoni, psychologist, who interviewed you for the purposes of her report prepared for an earlier court appearance in 2016, Exhibit 3.

23      Further, I received into evidence and have had regard to certificates of your having completed a 24 relapse prevention program and other courses whilst in custody, Exhibit 4.  You also participated in drug and alcohol programs run by Caraniche whilst in custody, Exhibit 5, and I received into evidence a number of certificates of urine analysis showing negative results for illicit drugs whilst in custody, Exhibit 6.

24      I received into evidence a reference from a friend, Peter Watson, who spoke highly of you as a person and a family man needing help to rid yourself of drugs.  He said and I accept, you are remorseful for your offending.  He said you are devoted to your family, which I also accept.  Another reference from a former employer, Eric Nelson, speaks highly of you as a worker and he described you as a genuine and reliable person, Exhibit 7.

25      In passing sentence I have had regard to all of this material tendered in evidence.  You were aged 31 at the time of the offending and you are now aged 33.  You are second in a sib-ship of four children.  Your mother suffers from cerebral palsy and is heavily disabled and her condition has declined in recent times.  Your father was imprisoned for sexual offending on at least two occasions and when released was prevented contact with children.  DHS had involvement with your family because of your father's and an older sibling's physical and sexual abuse of you and your other siblings.

26      I was told and accept that at one time DHS suspected you of improper sexual behaviour and this untrue assertion of fact by someone within DHS some time ago has weighed heavily upon you ever since.  At aged 12 and after your father was gaoled you were removed from your mother's care and placed in numerous foster homes and residential care facilities during your teenage years.  You found it difficult to settle in these placements and ran away.

27      At aged 17 DHS ceased involvement with you and you returned to Albury to live with your older brother Aaron with whom you no longer speak.  You maintain contact with your brother Luke and your sister Marissa.  You have a limited education to year 10 and due to instability in your home you struggled academically.  You hold a number of certificates and qualifications to work in logistics in warehousing and you completed a diploma in mechanical engineering at Box Hill TAFE which having regard to your troubled family circumstances and limited education is in my view quite an achievement and a credit to you.

28      You have a good work history in various industries including hospitality, engineering and landscaping.  I accept that you have had a difficult life and upbringing marked by violence, sexual abuse and abandonment and I have taken all of this into account, as I must.  You have had a number of relationships.  A child of your first relationship sadly died of cancer aged four.  You have a daughter Kiera and you have a current partner who herself has three children and she remains supportive of you.  She was present in court on the plea to show support for you.

29      You have long had difficulty with drug use.  Your path to drug use is an all too familiar one, commencing as it did with cannabis use as a teenager and then to ecstasy.  Around 2013 you began using methamphetamine, ice and despite stopping its use you again started using ice in 2019 and this offending in part occurred in that context.  That in part explains your offending but it does not excuse it.  You are drug free in a custodial setting.  You keep good physical health save for a protruding disk in your cervical spine that is painful when you sleep making your sleep difficult.

30      It was submitted this will make your time in custody more burdensome.  I do not accept that submission absent proper medical evidence.  This condition could possibly be attended to and treated by proper medication.  Ms Cidoni opined that at the time she saw you, you suffered from post-traumatic stress disorder triggered by your traumatic family life as a child.  A subsequent assessment from psychologist Alison Mynard has said you suffer complex post-traumatic stress disorder, major depressive disorder and stimulant use disorder in remission and moderate anxiety.

31      I generally accept these opinions and I accept that because of your mental health you will find prison more burdensome than most and I have taken these opinions into account in determining the kind of sentence I should impose on you and its length and in fixing a non parole period.  I do not accept the opinion of Ms Mynard or the arguments advanced by Ms Millar on your behalf that your post-traumatic stress disorder was a cause of your offending such that your moral culpability for your offending should be reduced and for any sentence to place less emphasis on general deterrence.

32      You knew exactly what you and the others involved with you were doing.  I reject any argument that you were not thinking clearly.  It is inconsistent with the fact you were acting as a lookout and the fact you were involved in attempting to sell the firearms, being in communication with McLeod via SMS messaging.  I also do not accept Ms Mynard's opinion that you are a moderate risk of re-offending.  Your past history suggests this opinion is most optimistic, as does the fact that you again offended after this offending resulting in the sentence you are presently undertaking.

33      I assess your prospects for rehabilitation as poor.  I accept that in sentencing you I must have regard to totality and the fact you have served nine months of another sentence and there is no pre-sentence detention relating to these matters.  In passing sentence I have endeavoured to weigh all of these matters and to ensure that I do not impose a crushing sentence.  Could you please stand, Mr Jeffrey.

34      On Charge 1, burglary, you are convicted and sentenced to a term of imprisonment of two years.  On Charge 2, theft of firearms, you are convicted and sentenced to a term of imprisonment of three years.  On Charge 3, theft, you are convicted and sentenced to a term of imprisonment of two years.  On Charge 4, handling stolen goods, you are convicted and sentenced to a term of imprisonment of two months.  On the summary charge of fail to answer you were convicted and sentenced to a term of imprisonment of one month.

35      I direct that two years of the sentence imposed on Charge 2 be served cumulatively upon the sentence you are currently serving.  You have been in custody now for 278 days which equates approximately to nine months and one week.  That is for other offending and there is no pre-sentence detention that need be declared for this offending.  You still a little short of three months to serve of your current sentence before you are eligible for parole under that sentence.

36 Section 14(1)(b) requires me in these circumstances to fix a new non parole period. I direct that you serve a minimum term of 21 months from this date before being eligible for release on parole. For the purposes of s.6AAA of the Sentencing Act 1991, I state that had it not been for the fact you pleaded guilty to these charges I would have imposed a total effective sentence of four and a half years imprisonment and I would have ordered that you serve a minimum term of three years before being eligible for parole.

HIS HONOUR:  Are there any questions relating to that, Ms Millar?

MS MILLAR:  Your Honour, just in terms of the actual non parole period for this matter alone, it's just I'm unclear on what that - - -

HIS HONOUR:  No, no, no.  I must fix a non parole period for all matters.

MS MILLAR:  Yes, I understand but there is - - -

HIS HONOUR:  I have got to fix a new non parole period which is 21 months from this date and that will include both sentences.  That is, the Magistrates Court and these matters.

MS MILLAR:  Yes, I understand.  And in terms of the Charges 1, 3, 4 and a summary charge, am I correct in my understanding that they're all concurrent with Charge 2?

HIS HONOUR:  Yes, they are.  Yes.

MS MILLAR:  Yes, thank you, Your Honour.

HIS HONOUR: The provisions of the Sentencing Act take care of that.

MS MILLAR:  Yes, that's right. 

HIS HONOUR:  Do you have any questions, Mr Cordy?

MR CORDY:  No, no, Your Honour, perfectly clear.

HIS HONOUR:  Very well.  Could you take Mr Jeffrey back into custody, please.   Thank you, Ms Millar, I am going to terminate the transmission, thank you.

MS MILLAR:  As Your Honour pleases.

HIS HONOUR:  Adjourn the court sine die.

- - -