Director of Public Prosecutions v Jenkins

[2017] VCC 1371

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

AT BENDIGO
CRIMINAL JURISDICTION

CR-17-01247
CR-17-01249

DIRECTOR OF PUBLIC PROSECUTIONS

v

JACOB JENKINS

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JUDGE:	HER HONOUR JUDGE PATRICK
WHERE HELD:	Bendigo
DATE OF HEARING:
DATE OF SENTENCE:	22 September 2017
CASE MAY BE CITED AS:	DPP v Jenkins
MEDIUM NEUTRAL CITATION:	[2017] VCC 1371

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

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr K. Doyle	Office of Public Prosecutions
For Accused Jenkins	Mr R. Kelly

HER HONOUR:

1Jacob Hugh Jenkins, you have pleaded guilty to 20 charges on Indictment H10021379 and three related summary charges, court reference CR-17-01247.  You have also pleaded guilty to one charge on Indictment H10283492, court reference CR-17-01249. 

2On Indictment H10021379 you have pleaded guilty to six charges of handling stolen goods, Charges 1, 2, 3, 6, 8 and 9;  two charges of burglary, Charges 10 and 11;  six charges of theft, Charges 4, 7, 11, 14, 16 and 20;  three charges of theft of a firearm, Charges 12, 17 and 18;  two charges of being a prohibited person in possession of a firearm, Charges 13 and 19 and one charge of traffic a drug of dependence, Charge 5.

3You have pleaded guilty to three summary charges of failing to stop a motor vehicle when requested to do so by a police officer, Summary Charges 51, 53 and 55 and one charge of driving at a dangerous speed, Summary Charge 54. 

4On Indictment H1283492 you have pleaded guilty to one charge of theft, Charge 1. 

5The maximum penalty for handling stolen goods, theft of a firearm and trafficking in a drug of dependence is 15 years' imprisonment.  The maximum penalty for burglary, theft and being a prohibited person in possession of a firearm is ten years' imprisonment.  The maximum penalty for failing to stop when directed is ten penalty units.  The maximum penalty for driving at a dangerous speed is two years' imprisonment or 240 penalty units and a minimum licence disqualification of six months.

6The prosecutor made application for the taking of a forensic sample from you and for the disposal of certain items.  The making of that order was not opposed.

7The circumstances of your offending on Indictment H10021379 are set out in the Summary of Prosecution Opening, Exhibit B.  In brief the circumstances are as follows.  The offending occurred 9 November 2016 and 25 December 2016.  On the afternoon of 24 December 2016 a home owner returned to her rural property to find the front gate open and a mower and trailer missing.  You had broken into her home (Charge 10, burglary).  You had gone through cupboard drawers and a gun safe was open.  The owner's shotgun and ammunition were missing (Charge 12, theft of firearm).  You stole a number of personal items which are set out in Schedule C to the indictment (Charge 11, theft).  The items in Schedule C include jewellery, personal items, a camera, tools, a compressor, a stereo player and a laptop computer.

8When police were searching your car on 25 December they located personal items belonging to that home owner as well as the stolen shotgun (Charge 13, prohibited person in possession of a firearm).  On 26 December a shed on your parent's property was searched and items belonging to that home owner were identified.  The total value stolen during this burglary was valued at $30,000.

9On 24 December 2016 a business owner was advised that a sliding door of his factory in Rochester was open.  When he attended he noticed that a number of items had been stolen which are set out in Schedule B of the indictment. 
A number of those items were later located in the shed at your parent's property (Charge 9, handling stolen goods).  The items on Schedule B included a trolley, jack and various tools.

10At about 4.30 am on 25 December 2016 a neighbour noticed banging coming from a house in a rural area near where your parents live.  You and at least one other person had broken into that house (Charge 15, burglary).  Police attended and saw you driving away in a white Holden Commodore towing a tandem trailer (Charge 20, theft of a tandem trailer).  Police directed you to stop but you failed to stop and drove away (Summary Charge 51, fail to stop when requested).  The white Holden was later found abandoned.  That vehicle had been stolen on 19 December 2016 (Charge 6, handle stolen goods). 

11Schedule D sets out the property stolen in the second burglary.  There are a total of 38 items including camping equipment, jewellery, electrical goods, personal items, a computer and car keys (Charge 16, theft).  Also stolen in the same burglary was a gun safe which had been ripped off its hinges.  The safe contained two guns being a Sturm Ruger long barrel rifle (Charge 17, theft of firearm) and a Zastava .22 rimfire long barrel rifle (Charge 18, theft of a firearm).  Neither of these firearms or a crossbow taken during the burglary have been recovered.  You were a prohibited person from possessing a firearm due to a prior criminal matter (Charge 19, prohibited person possess firearm).

12A door knock was conducted and police attended at a house where you had been living.  A vehicle registered to you was located.  A number of items which had been stolen form the residence which was the subject of the second burglary were found.  Police also located a trailer stolen in the burglary which contained items stolen in the burglary.  The owner believes the total value of items stolen from him is in excess of $100,000 of which $30,000 worth of property has been recovered.

13Your parents returned from their holiday and contacted police advising them that there were more items within the shed and property.  A number of items which were found which had belonged to the victim of an earlier theft in November.  Those items are set out in Schedule A of the indictment (Charge 1, handle stolen goods). The items in Schedule A include tools, a trailer, a Honda bike and various other equipment.  Other items which had been stolen from a bobcat earlier in December being a light bar fuel and a first aid kit were located (Charge 4, theft).  An orange tool box and a jack which were stolen on 22 December were found (Charge 7, theft).  Police also found a Honda motorbike (Charge 2, handle stolen goods), a trailer (Charge 3, handle stolen goods) and another home-made trailer that had been stolen on 24 December 2016 (Charge 14, theft of trailer).

14Police arrested you on 3 January 2017.  On your phone police found photographs of a bike that had been stolen between 22 December and
23 December 2016 (Charge 8, handle stolen goods).  The bike has not been recovered.  The police also found messages relating to the selling of stolen property and firearms.  There were also messages relating to evading the police on 12 December 2016 (Summary Charges 53, 54 and 55, fail to stop when requested and drive at a speed dangerous). On the basis of messages located on your phone police charged you with trafficking methamphetamine on 8 December 2016 (Charge 5, traffic a drug of dependence).  It is alleged that you trafficked in small amounts, the exact quantity is unable to be identified. 

15You indicated you would plead guilty to these offences on 25 June 2017 at a committal mention.  It is conceded by the prosecution that this plea was entered at the earliest opportunity. 

16The circumstances of offending on Indictment H10283492 are set out in the Summary of Prosecution Opening, Exhibit A.  In brief the circumstances are as follows.  On 30 November 2016 you, in company with another unknown person, went to a rural location where work was being done.  You cut a multi-strand wire fence and used a generic key to start an excavator.  You loaded the excavator onto a tandem car trailer. A tyre on the trailer blew out.  You continued to drive but ultimately stopped the trailer.  You hid the excavator and left the scene. 

17The owner of the property on which the work was being done went past in the early hours of the morning and saw the excavator.  When he came back to return home he saw the excavator was missing.  You had returned to the excavator with another trailer.  You loaded the excavator onto the trailer.  Early on 31 November 2016 a person noticed a station wagon towing a small trailer with an excavator.  This excavator remained parked for several days until
1 December 2016.  That person became aware that the excavator had been stolen and the owner, Underground Constructions Pty Ltd was contacted.

18On 3 January 2017 you were interviewed in relation to this matter and denied all involvement in the theft of the excavator.  You told police you'd been at home and that a damaged trailer which linked you to the first effort of removing the excavator, you said, had been stored at your address by someone else. 

19You indicated you would enter a plea of guilty at the committal mention on 21 June 2017.  This matter was uplifted to the County Court at your request. 

20In respect of the charges on Indictment H10021379 you have spent 157 days in pre-sentence detention.  Three victim impact statements have been tendered.  The owner in respect of the second burglary has made a victim impact statement, Exhibit C.  His teenage daughter has made a victim impact statement, Exhibit D.  The owner in respect of the first burglary has also made a victim impact statement, Exhibit E. 

21The owner of the second property describes arriving home early on Christmas morning to find his children's rooms had been turned upside down.  It made him angry and upset as he is a single father and was not then able to spend Christmas day with his three daughters.  He says he had fairly recently separated from the children's mother and instead of enjoying Christmas dinner with his daughters he spent Christmas day alone cleaning his house up enough for them to return on Boxing Day.  He says it has affected his work as he will not leave the house unattended.  His children are easily scared.  He says that he has panic attacks and eventually needed anti-depressants and to see a counsellor.  He says that amongst the items which were stolen were digital items which contained almost every photo he had of his children and other family members.  Other items of personal significance were also taken and have not been located.  Some items had oil, acetone or the contents of a fire extinguisher poured on them.

22The owner's eldest daughter describes a sadness over what had happened and her fear for her own safety.  She says she has had trouble sleeping and that her own life is very different due to her father's concerns about leaving the house unattended. 

23The owner in respect of the first burglary in her victim impact statement describes her annoyance at this damage, particularly due to the fact that it was the day before Christmas.  She says she was worried and concerned that someone might get hurt because her gun had been taken.  She says she has difficulty sleeping. She describes a feeling of total invasion of privacy.  She says she has been concerned about her security at home.  She is worried about it happening again.  She says she has decided to relocate.  She considers it fortunate that her two small dogs were not at home.

24In sentencing you I have taken into account your personal circumstances, which were outlined by your counsel.  You are now 24 years old.  You grew up in rural Victoria in a stable and supportive family.  You left school at 16 having completed Year 10.  Very sadly when you were 18 one of your three siblings died.  You were very close to her and your mother has said to counsel that she believes that you have not recovered from her death.  You commenced a butcher's apprenticeship and stopped that work about six months prior to completing the apprenticeship as you were offered a job in Queensland operating heavy machinery in the earth moving industry.  You came home after the death of your sister and have worked in that industry ever since.  You have spent four years of your working life working for the owner of the business in Rochester referred to in relation to Charge 9.  Your parents were in court to support you. 

25You have had one child, now aged seven.  You are no longer in a relationship with the mother of that child but have an amicable relationship and have had a considerable amount of contact with that child. 

26You have admitted a prior criminal history which involves one previous court appearance in 2014.  The charges included reckless conduct endangering serious injury which your counsel said involved you driving at a police car. 
You also pleaded guilty to possessing an imitation firearm which was a cap gun. 

27By that stage you had commenced using ice.  By the time of this offending you have told your counsel you were using three grams of ice per day.  When you were sentenced in June 2014 you were placed without conviction on a community correction order for 12 months.  You completed that order but relapsed into drug, ice use.  You say, and I accept, that the items you stole were stolen for sale in order to support your drug habit. 

28Your counsel in sentencing submissions said that you accepted that the sentence that would be imposed would be a sentence of imprisonment with a non-parole period.  In respect to the theft of the excavator your counsel said your instructions were that that equipment was not stolen to order but once again was stolen in order to sell for a relatively low amount to fund your drug habit.  Your counsel says that your offending was all to do with your ice addiction.

29You acknowledge your parents did not want you to use their shed and you knew that you had to get permission from somebody else to use their shed whilst they were way.  You used a screwdriver to get into the shed and store stolen property there.  Your counsel said your trafficking of ice was in the context of you associating with others using ice, some of whom were living in the same rental accommodation where you had been living and that anything you made from selling ice had been used to purchase more drugs.

30You counsel submitted that as a youthful offender your rehabilitation ought have significant weight in sentencing you.  It was accepted that you were not as youthful as some others and that the seriousness of your offending would mean that your youth and rehabilitation would have less significance than they would with less serious offences.  Your counsel submitted that you have good prospects of rehabilitation.  Your counsel submitted that you have family support, are relatively young and have a good work history.  You have made positive progress on the previous community correction order. 

31Your counsel submitted that any sentence should include a non-parole period which reflected your prospects for rehabilitation.  Your counsel also submitted that the principles of totality and proportionality would need to be considered when determining the appropriate degree of concurrency and cumulation. 

32The prosecutor accepted that your relative youth and supportive family situation would be taken into account in sentencing you.  The prosecutor submitted that the seriousness of your offending arose from the volume of offences and the amount of property stolen , particularly with the theft of firearms.

33Jacob Jenkins, the seriousness of your offending does arise from the volume of offending and the type of offending.  Your offending has been correctly described as a rampage occurring over a relatively period of time.  I consider this to be another example of the results of ice addiction and the consequences that fall upon those who are addicted but also the community around them, including their family and neighbours.

34The offences of theft and handling stolen goods are typical of matters which are regularly dealt with in the Magistrates' Court.  The Magistrates' Court also regularly deals with the more serious offence of burglary.  The burglaries in this case are more serious because they were burglaries on residential properties.  Personal items were stolen.  You invaded the privacy of people's homes.  That was a particularly harsh thing to do at Christmas time.  There has been considerable damage caused.  The victims of your offending clearly are still suffering ongoing harm.

35The thefts of the firearms is a very significant matter in sentencing you. 
The fact that you were prepared to steal guns to on-sell is very serious. 
You clearly had a complete disregard for who might ultimately end up having those firearms and what they might be used for.  This is the most serious aspect of your offending as there are potentially significant consequences in having illegal guns in the community.  Your moral culpability in that regard is high.

36Another serious aspect of your offending is the trafficking charge.  I accept that that was connected to your own habit.  Any selling of drugs is engaging in an evil trade which gains money from the unfortunate weakness of others. 
You were in a position yourself to clearly understand the harm that illegal drugs caused.  Illegal drugs cause harm, as I said earlier, both to the individuals involved but also to the community around them. I do take into account that you have only been charged in respect to one day and that a small quantity was involved. 

37General deterrence must be a very significant sentencing consideration particularly with respect to the charges of burglary, thefts of firearms and the drug trafficking.  It is to be hoped that the sentences to be imposed will discourage others from similar offending.  Because of the seriousness of your offending and the importance of general deterrence, your relative youth remains a sentencing consideration but those other considerations also remain important sentencing considerations.

38You are youthful.  Your rehabilitation ought be given weight in sentencing you.  I consider that you have very reasonable prospects of rehabilitation.  You have a limited prior criminal history.  You have a history of hard work despite your young age.  You come from a stable background and have a supportive family.  You were able to make some progress on the previous community correction order, unfortunately not enough to prevent a relapse.  It is clear that your rehabilitation ultimately is contingent on your ability to be deal with your drug issues.

39Specific deterrence must have some weight in sentencing you.  You must understand that if you cannot deal with your drug issues and re-offend you are very likely to spend increasing amounts of time in custody. 

40I have taken into account in mitigation of sentence your plea of guilty.  That plea of guilty has had considerable utilitarian benefit in avoiding the need for any trials in these matters.  That has had financial benefit but has also saved trauma to any potential witnesses.  I have taken your plea of guilty into account as an expression of remorse.

41I consider that a sentence of imprisonment is the only sentence that could appropriately reflect denunciation, just punishment, general deterrence and specific deterrence.  In view of your relative youth and prospects of rehabilitation I have set a lower non-parole period than I otherwise would have.  With such a large amount of offending the principles of totality and proportionality have particularly important application in this case.  The application of those principles has decreased the degree of cumulation that

I would otherwise have considered appropriate.  Could you please stand up, Jacob Jenkins?

42On each charge you are convicted.  You are sentenced as follows.  Charge 1, handle stolen goods, eight months' imprisonment.  Charge 2, handle stolen goods, four months' imprisonment.  Charge 3, handle stolen goods, four months' imprisonment.  Charge 4, theft, three months' imprisonment.  Charge 5, trafficking in a drug of dependence, 12 months' imprisonment.  Charge 6, handle stolen goods, six months' imprisonment.  Charge 7, theft, two months' imprisonment.  Charge 8, handle stolen goods, four months' imprisonment.  Charge 9, handle stolen goods, six months' imprisonment.  Charge 10, burglary, 12 months' imprisonment. 

43Charge 11, theft, six months' imprisonment.  Charge 12, theft of firearm,
20 months' imprisonment.  Charge 13, prohibited person possessing firearm, six months' imprisonment.  Charge 14, theft, four months' imprisonment.  Charge 15, burglary, 12 months' imprisonment.  Charge 16, theft, eight months' imprisonment.  Charge 17, theft of firearm, 20 months' imprisonment.  Charge 18, theft of firearm, 20 months' imprisonment.  Charge 19, prohibited person possessing a firearm, six months' imprisonment.  Charge 20, theft, four months' imprisonment.

44Summary Charge 51, fined $400.  Summary Charge 53, fined $400.  Summary Charge 54, which is driving at speed dangerous, fined $600.  All your licenses are cancelled.  You are disqualified from driving in the State of Victoria for six months.  Charge 55, fined $400.

45All of those sentences are on the charges on Indictment H10021379. 

46I make the following orders for cumulation.  One month of the sentences on Charges 6, 9, 11, 16, two months of the sentence on Charge 13, three months of the sentences on Charges 1, 5, 10, 15, four months of the sentence on Charge 18 and six months of the sentence on Charge 12 are to be served cumulatively on each other and on the sentence on Charge 17 which is the base sentence. 

47The total effective sentence is four years' imprisonment.  I fix two years as the period that you are required to serve before being eligible for parole.  I declare that you have served 157 days by way of pre-sentence detention. 

48In respect to Indictment H10283492, Charge 1 of theft, you are convicted and sentenced to nine months' imprisonment.  That is to be served concurrently with the other sentence which I have already expressed.  So the total effective sentence remains the four years with the non-parole period of two years.

49But for your plea of guilty I would have sentenced you to a term of imprisonment of six years with a non-parole period of four years. 

50I have made the orders for disposal that have been sought. 

51I have made an order for the taking of a forensic sample from you.  I make that order because of the seriousness of the circumstances of your offending, that the order is not opposed and because I consider that the granting of the order is in the public interest. 

52What will happen is that somebody will come to take a saliva sample from you from your mouth by way of a buccal swab.  I am further required to tell you that you must cooperate when the authorities do that.  I am sure you will do that.  If you do not cooperate they are authorised to use reasonable force to take a blood sample.  Thank you, could you please take your seat.

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