Director of Public Prosecutions v Lacroix

[2019] VCC 1970

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

AT BENDIGO
CRIMINAL JURISDICTION

CR-19-00463

DIRECTOR OF PUBLIC PROSECUTIONS

v

ARI LACROIX

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Melbourne
DATE OF HEARING:	28 November 2019
DATE OF SENTENCE:	28 November 2019
CASE MAY BE CITED AS:	DPP v Lacroix
MEDIUM NEUTRAL CITATION:	[2019] VCC 1970

REASONS FOR SENTENCE
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Subject:  Burglary, theft of firearms.
Sentence:  266 days' imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Cordy	Office of Public Prosecutions
For the Accused	Ms S. Wallace

HIS HONOUR: 

1Ari Lacroix, you have pleaded guilty to three charges and all of the offending in those three charges occurred on 24 July 2018.  The first charge is a charge of burglary for which the maximum penalty is 10 years' imprisonment, and the second charge is a charge of stealing four firearms for which the maximum penalty is imprisonment for 15 years, and the third charge is a charge of theft of two motorcycles which, for the purposes of the relevant legislation, are motor vehicles.  The maximum penalty in respect of the theft charge is imprisonment for 10 years.

2The circumstances of your offending are contained in an amended summary of prosecution opening dated 20 June of this year.  That document was read to the court by the learned prosecutor Mr Cordy and your counsel Ms Wallace accepted that the document accurately sets out the factual matrix in which I must sentence you for these crimes.  It is not necessary that I again read out that which is contained in the amended prosecution summary and do so only in an abbreviated way.

3On the day in question you were associating with a co-offender, one John Lee Farrell.  He is older than you, he was 33 at the time of offending, and he is now aged 34.  You were only 24 years of age at the time of offending and I agree with the submission of your counsel Ms Wallace that I should treat you as a youthful offender.

4You and Farrell were consuming alcohol – I should say overconsuming alcohol – together, and you were doing so at the home of a friend, Ms Orwin.  Her daughter had been allegedly bullied by the son of one of the complainants in this matter.  You and Farrell in your drunken state decided that you would go to visit the complainant and confront him and express your displeasure at the fact that apparently nothing had been done to discipline the son who was, in your mind and in the mind of Farrell apparently, regarded as a bully.

5After some time, you returned home and then went back again to the house of the complainants.  No one was home and you entered the house by opening the rear patio security door and then the wooden door that led into the bar area off the patio.  Your intent was to steal within the property and that forms the basis of Charge 1, burglary.  Once inside, you and Farrell utilised a small angle grinder that you found at the property to cut the padlock on a gun safe.  You also damaged a latch which secured a padlock to a second cabinet in which ammunition had been stored. 

6You stole five firearms from the locker that you had broken into.  One was a Lithgow 22 Hornet rifle, one was a mossberg 12-gauge shotgun, one was a Remington centrefire rifle and the fourth weapon was a Webley & Scott under-and-over shotgun.  Those guns in fact belonged to one Matthew Hodgson, the brother of one of the complainants.  He had stored his guns quite legally at the property that you and Farrell broke into.  Breaking into the locked gun safe and stealing of the four guns which I previously mentioned constitute the second charge, theft of a firearm.

7The third charge relates to two Yamaha motorcycles that you and Farrell stole from the property.  You dragged those bikes back to the address where you were staying.  The fact that the bikes were dragged along the ground left an easy trail for the police to follow when the owners of the property alerted them.  Police attended at the property, they saw the two motorcycles stored in an open shed at the rear, and when approached you were confronted with the fact that there had been a break-in and you told the police where the guns were located.

8On one view, this was a pretty amateurish set of circumstances which resulted in a number of crimes.  You were bound to be caught, having regard to the fairly unsophisticated way you went about it, but you did steal four guns, and as the maximum penalty for the offence of theft of a firearm indicates, the Parliament of this state regards that offending as being very serious.  The maximum penalty, as I have already said, is 15 years' imprisonment.

9You were interviewed by the police and largely made a no comment record of interview but you did comment on one or two matters which implicated you in the offending.  You were arrested and charged on 25 July 2018 and you were bailed on that day.  There was a filing hearing but on 19 October of 2018 I was told and accept that you and Farrell were remanded in custody on unrelated charges.  Those charges remain pending and you still remain in custody on those charges, the trial of which is set down for hearing in this court in the sittings in July of 2020, about 21 months after the offending.

10When you were remanded in custody on the second set of offending in October of 2018 your bail that you had entered into on 25 July 2018 was not formally revoked.  You were committed for trial on these matters on 7 March of 2019, some five months or thereabouts after you were charged in October of 2018, so that there is about five months in custody for which you will not get credit for pre-sentence detention on these matters.  The prosecution accepts that you did not apply for bail on these matters at committal and that, from the time of your committal on 7 March until today, you have served 266 days that can count for pre-sentence detention.  I have not done the arithmetic but that approximates about nine months' imprisonment.  But there is also the other five months which I think needs to be taken into account for the purposes of totality in arriving at an appropriate sentence for you on these charges.

11When you pleaded guilty today you admitted a relevant criminal history from a number of previous appearances, mostly in the Children's Court, between 4 January 2010 when you were approximately 15 to 16 years of age, and 6 July of 2017.  You have prior convictions for criminal damage and theft of a motor vehicle and bicycle, of possessing a prohibited weapon without exemption, damage to property, and armed robbery in the Dandenong Children's Court in May of 2012.  According to the criminal history that has been provided, you were convicted in this court on a charge of assaulting an officer in April of 2015 but the disposition of a $250 fine without conviction in my mind bespeaks that that was probably a fairly modest offence.  Your only other appearance was in the Moorabbin Magistrates' Court in July of 2017 on a charge of criminal damage and failing to answer bail.

12Ms Wallace, who appeared, as I say, as counsel on your behalf, filed with the court a very helpful outline of submissions on your behalf.  Again, it is not necessary that I repeat in full that which is set out in her submissions except in a summary way.  She makes it very clear and I accept that your offending occurred in an atmosphere where you were probably very drunk.  That explains your offending but does not excuse it.

13You are currently aged 25 and you are the father of a three-year-old child from a relationship with your supportive partner Paige Farrow.  I received into evidence two references on your behalf, both of which are strong references in my view, allowing for the fact that they come from close relatives, namely your mother and your partner, but leaving that aside, Ms Farrow speaks highly of you and of the success of your relationship apart from a period of about 12 months when you were separated.  She says,

'Ari Lacroix is a good person with a big heart.  He does struggle to evaluate negative and positive influences on his own sometimes.  I still see Ari as a caring, kind and loving person, regardless of past mistakes, because it only matters who he tries to be from now on.  In the three months before he was put in remand we had seen some very positive changes he had made in his life.  He had cut out negative people and changed by quitting drugs and alcohol.

14Your mother provided a very moving reference, if I may say so.  She set out some of your problems in your early life and she made it clear that you regret the difficulty that your actions have brought to your partner and your three-year-old child.  She informed me through her reference that you suffered considerable emotional abuse and abandonment by your father which caused you as a child to suffer from depression.  Your mother moved with you to Melbourne from Perth, where she said and I accept that she knew no one, leaving Perth and her family behind, including many cousins she was close to.  She says that in hindsight this was not a good move and your depression increased.

15You were bullied by an older boy for six years at primary school, so seriously that the Children's Court issued a restraining order against the other young boy.  As a teenager you became difficult to control as your sadness and depression turned to anger.  Your mother sought help from the Department of Human Services but, far from getting help, she found that the Department of Human Services took you away to a residential home where you began using drugs and getting into trouble with the law.  Your life seems to have taken a bad turn at that point and that is unfortunate.  It appears that when your mother sought help she did not get it.

16You returned home at the age of 18 and showed some interest in joining the armed services.  You showed a good academic aptitude for that.  You later worked in various jobs and all the time you have received strong love and support from your mother.  You suffered an accident and injury as a young man and this had an effect of leading to further depression and substance abuse and recurring homelessness.

17Your mother says this, which I accept.

My son now has clarity and foresight and plans to study audio engineering upon his release from prison.  He understands he will carry the shame and stigma of his actions in both his professional life and social life and that he must work twice as hard at both to counteract this.  I truly believe that during my son's time in custody he has turned an important corner.  His focus is now on returning to his family as a good partner and father and to the community as a responsible and law-abiding citizen.  I will always support him in this quest.

18During your time in custody you have used your time well.  You have done a number of courses available to you, including a drug and alcohol course, computer courses, VCAL courses, and courses in cleaning operations and kitchen operations.  I am told and accept that you completed a number of urine screens showing negative results.  I accept that you are remorseful and I accept that having regard to your relatively young age that I must have regard to your prospects of rehabilitation, which in my view must remain guarded having regard to the problems that you have with drug and alcohol abuse.  I accept you are trying to do something about your problems; whether you can do that outside of a prison setting remains to be seen.

19This kind of offending by drunk or alcohol-affected persons is prevalent and, frankly, the community is sick and tired of it.  The offending by stealing the guns is very serious offending, although this is not one of the most serious examples of it.  Nevertheless, having given this matter considerable thought I am of the opinion that the only disposition that I can make is to fix a term of imprisonment. 

20Had it not been for the fact that you face other charges and you will remain in custody on those other charges, I would have considered making what is called a combination sentence, namely a term of imprisonment of up to 12 months, and a community corrections order with therapeutic conditions.  However, the discussion that I had with counsel will reflect that I am of the view that having regard to the situation and predicament that you now find yourself in, and the uncertainty of when you will actually be released from prison, it would mean in the end that a combination sentence with a community corrections order would not achieve all the purposes of sentencing in a case like this, which are deterrence, both general and specific, denunciation and just punishment, and I must have regard to your prospects for rehabilitation which, as I say, I assess as being guarded.

21However, I also must have regard to the principle of totality and, as I say, there is about five months that you have served in custody for which you will receive no credit in relation to these matters by way of pre-sentence detention. 

22Having taken all of these factors into account, on each charge you will be convicted and sentenced to a term of imprisonment of 266 days.  I declare that 266 days be reckoned as having been already served under the sentences passed this day and be entered into the records of the court and be deducted administratively.

23The charge of theft of the motorcycles enlivens s.89(4) of the Sentencing Act. Any licence that you hold to drive a motor vehicle is cancelled and you are disqualified from obtaining another driving licence for a period of three months. For the purposes of s.6AAA of the Sentencing Act I state that had it not been for your pleas of guilty to the charges I would have imposed a term of imprisonment of three years and fixed a non-parole period of two years.

24Are there any matters arising out of that?

25MR CORDY:  Just to clarify, Your Honour, this is not an aggregate sentence but a sentence on each charge of 266 days to be served concurrently?

26HIS HONOUR:  Correct.

27MR CORDY:  Yes, thank you.

28MS WALLACE:  Just confirming Your Honour took into account also the victim impact statements?

29HIS HONOUR:  I did take into account the victim impact statements, although I forgot to mention it.

30MS WALLACE:  Thank you, Your Honour.

31HIS HONOUR:  Thank you both for your submissions.

32MS WALLACE:  Thank you, Your Honour.

33MR CORDY:  As Your Honour pleases.

34HIS HONOUR:  Could you take Mr Lacroix back into custody, please.

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