Director of Public Prosecutions v Launer

[2014] VCC 908

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

AT BENDIGO
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

JUSTIN LAUNER

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Bendigo
DATE OF HEARING:	2 June 2014
DATE OF SENTENCE:	6 June 2014
CASE MAY BE CITED AS:	DPP v Launer
MEDIUM NEUTRAL CITATION:	[2014] VCC 908

REASONS FOR SENTENCE
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Subject:  Theft, handling stolen goods.
Sentence:  Three years' imprisonment, 15 months non-parole.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Lew
For the Accused	Mr R. Slattery

HIS HONOUR:

1Justin Launer, you have pleaded guilty to seven charges of theft (Charges 1-5 and 8 on indictment D12112822 and Charge 1 on indictment C12549555), four charges of handling stolen goods (Charges 6, 7, 9 and 10), one charge of cultivating a narcotic plant (Charge 11), one charge of possession of a category A long arm firearm without a license (Charge 12), one charge of possession of a category C long arm firearm without a license (Charge 13), and one charge of possession of equipment to make identification information.

2You have also pleaded guilty to the offence of unlicensed driving of a motor vehicle at the time of the occurrence of the offence, that is Charge 1 on indictment C12549555.  The maximum sentence for this summary offence is three months' imprisonment.

3The maximum sentence for the offence of theft is ten years' imprisonment.  Where the offence is a continuing criminal enterprise offence, and the offender is sentenced as a continuing criminal enterprise offender, the maximum sentence for theft is 20 years' imprisonment.  Charges 2, 3 and 5 on indictment D12112822 are continuing criminal enterprise offences.

4The maximum sentence for handling stolen goods is 15 years' imprisonment as is the maximum sentence for cultivating a narcotic plant.

5The maximum sentence for possession of a category A long arm firearm without a license is two years' imprisonment, whilst the maximum sentence for possession of a category C long arm firearm without a license is four years' imprisonment.  The maximum sentence for possession of equipment to make identification information is three years' imprisonment.

6As you can see from the maximum sentences provided for by the parliament, this kind of offending is regarded as being very serious.

7Your offending is summarised in a prosecution summary and it is not necessary that I repeat what is there set out except in summary form. 

8Between January 2013 and mid July 2013 you were addicted to the methamphetamine drug known as Ice.  During that period together with one Steven Gatt you stole a number of valuable items of plant and equipment for resale to finance your drug habit.  The items included a new caravan valued at $95,000 (Charge 2), a refrigerated trailer valued at $260,000 (Charge 3).  You assisted Gatt in stealing these items which were stored on a shed located on a remote rural property at Watchem West near Swan Hill owned by one Borden.  According to a recent statement made by you and given to police it was Gatt who identified the items to be stolen and it was he who arranged for their on-sale.  Again, according to you, you received no money from the proceeds but you did receive sufficient supply of the drug Ice to satisfy your habit.

9As well as stealing items to finance your habit you conceived of the idea, joined in by Gatt, to grow a cannabis crop hydroponically in two vehicles located in a shed at the property where your stolen items were stored.  To succeed in that criminal enterprise you and Gatt stole further items  including the plant and equipment the subject of Charges 1 and 5 which included valuable generators.  The value of the equipment in Charge 5 was $164,500.

10With your knowledge and apparent tacit agreement Gatt also acquired weapons which were located in a caravan towed to the shed.  According to your statement given to police this was done to “protect the dope crop” (see paragraph 36).  You stole fuel to operate generators to grow the crop.  There were 111 plants in all located at the shed in Watchem West.  Of these 73 plants were two feet tall and 38 plants were drying.  The potential street value of each plant is around $2,500 valuing the crop at around $180,000.00.

11As can be seen, the scale of your offending is serious.  Very serious.  The offending was persistent, planned, systematic and sophisticated and relied upon your expertise to some extent in dealing with things mechanical and to alter the identity of plant and equipment stolen.  For example you dismantled the road sign the subject of Charge 1 on indictment C12549555.  You told police you intended to create a solar powered battery charger with what you stole.  At the shed you would dismantle and re-identify stolen trucks and trailers with the intention of on-selling the vehicles to pre-arranged buyers.

12Some of the vehicles and equipment stolen have been recovered.  The total value of known stolen items and the drugs cultivated is approximately
$1 million.  Police intelligence links your offending to organised crime activity which targeted the north and western suburbs of Melbourne.

13On the conclusion of the plea I directed you be assessed for a Community Corrections Order.  I indicated that was only to inform me and that I had not then made any final conclusions as to appropriate sentence.  Since the plea I have given the question of sentence a great deal of consideration.  Notwithstanding a number of mitigating factors operating in your favour, I have concluded that the only appropriate sentence here is a term of imprisonment with immediate custody.  I have concluded that the level of your offending requires such a disposition and that a term of imprisonment suspended or a Community Corrections Order would be inappropriate because neither in my view would reflect proper application of general deterrence and neither would adequately denounce your conduct.  However, I have concluded you have reasonably good prospects for rehabilitation and your further incarceration in gaol should be relatively short and my sentence will provide for a much earlier possible release date on parole than normal in such cases.

14You gave evidence before me and undertook to assist authorities in the prosecution of Gatt and Borden and to give evidence in accordance with your statement (Exhibit 1) dated 26 May 2014.  In that statement you detail how you met Gatt who was then operating an abattoir in Millicent in South Australia.  At that time you had just commenced an Ice habit and Gatt was also a user and addicted.  Gatt employed you as a diesel mechanic, a trade for which you are fully qualified.  You were aged 22 and Gatt around 36 so he was much older.  Gatt initially paid you in cash then with Ice.  The abattoir closed soon after.  According to your statement it was Gatt that got you involved in this criminal activity (see paragraph 8).  That may have been so but you were a willing participant motivated as you were to finance your drug habit.

15You left your mother and commenced living with Gatt in a bungalow at his parents property at Rockbank.  The two of you began to steal to fund your drug habits.  According to your statement, you were not the one involved in selling the stolen items.

16Gatt may have been the main instigator and brains behind the criminal activity, but you were a willing participant and gave Gatt all of the assistance you could.  Your mechanical knowledge was an asset of the criminal enterprise.  You may have acted under the influence of Gatt but this did not in my view reduce in any way your culpability for the offending.  You were affected by drug use.  This is not an excuse and only serves to explain your offending.

17You have pleaded guilty to the charges and did so at the earliest possible opportunity.  Your pleas of guilty have saved the time and costs of a trial and also signify in my view genuine remorse.  For your pleas of guilty you are entitled to a reduced sentence and this is reflected in the sentence that I shall shortly pass.

18Further, as I have said, you have cooperated fully with the police and have undertaken before me to give evidence against Gatt and Borden if called on in accordance with your statement.  In evidence you told me that you are in fear for your safety if you give evidence against Gatt.  You told me and I accept Gatt can be given to violence.  You told me and I accept Gatt has criminal contacts and as a result of undertaking to give evidence against him you are in fear of your safety in and out of prison.  I accept that to be the position.  That is why the law provides for persons who undertake to give evidence against others to receive a lesser sentence to reflect that risk.  Also, in prison such persons are normally housed in protective custody meaning that any time served in prison is more onerous because prisoners in protective custody have to give up privileges that other prisoners have on a daily basis.  In passing sentence upon you I have taken all of these matters into account.

19I turn to your background circumstances.  You are 26 years of age.  When arraigned you admitted a number of prior convictions from 14 previous court appearances all of which were either in the Mt Gambier Magistrates’ Court or the Mt Gambier Children’s Court.  Most of those prior matters are largely irrelevant here for they are mostly for anti-social type offending and driving offences.  However, in March 2009 you were convicted of dishonestly taking property belonging to another.  You were placed on a $500 good behaviour bond.  Fifteen months later you were convicted of damaging property and breach of the earlier bond.  You were then sentenced to 42 days' imprisonment suspended for three years.  Some of this offending would appear to have occurred during the operation period of that suspended sentence from South Australia.  There were other offences that occurred during the operational period of the suspended sentence but there is no record before me that shows they triggered the restoration of the suspended sentence.  I record these matters to show that you have been given opportunities in the past to change your ways.  On 16 October 2012 you were convicted of the offence of drive whilst disqualified and served a term of imprisonment of seven weeks but that did not deter you from becoming involved in this criminal conduct.

20     You were arrested on these matters on 15 July 2013 and remanded in custody.  You pleaded guilty to the charges at a committal mention on
27 November at which time you were bailed. 

21     You have served 136 days pre-sentence detention. 

22     Before you were bailed you wrote a letter to the Magistrate and that letter was put into evidence on this plea.  In that letter you plead that your time in a maximum security prison has made you see the error of your ways and you vow that you will never again offend.  You said in the letter, inter alia, “So seeing these sorts of things and the lives of the people that come in here time and time again has made it clear to me that I don’t want this life for me.  Seeing this has made me use my time here to get my life back on track work wise and getting back into the workforce on the outside”.  I discount the value of what you said in that letter.  You had been to gaol previously and ought to have learned valuable lessons then but you apparently did not.

23You went on in your letter to outline the work you had undertaken in prison and the courses you have undertaken whilst on remand to improve your qualifications.  That is to your credit.

24I was told and accept that you have remained drug free since your arrest.  Two urine tests conducted whilst you were on remand were negative.  I have taken this into account together with various certificates for courses you have completed whilst on remand.

25Since your release you have been living with your mother in South Australia.  She has been unwell with cancer and has recently undergone four separate operations.  You have cared for and assisted her.  She gave impressive evidence on your behalf.  She told me how you have changed for the better and have remained drug free and how you have cared for her.  She told me and I accept that you are remorseful.  I was told and accept that on your own initiative since your release you have sought out and received drug and alcohol counselling from Sonia Benstead a clinical nurse from Drug and Alcohol Services South Australia.   All of these matters are to your credit.

26I received into evidence letters from neighbours and friends in South Australia whom you have helped.  All speak well of you and I have taken those letters into account.  I also received into evidence a letter from your brother who said, inter alia, “In some ways I’m sort of glad he was arrested, as it cleaned my brother up and let him become the decent, hardworking brother I looked up to.  Since being on bail he has got clean of drugs and is determined to have an honest life away from anything criminal.  It has been a hard road, but I am positive that my brother will continue to be a better person and to contribute to society, not a drop kick criminal in and out of gaol”.  I accept that you appear to be doing your best to change your ways. 

27You and your brother have both been raised by your mother as a single mother.  You have never known a father.  You are, as I say, a fully qualified diesel mechanic with good prospects for employment.  You have been actively seeking work but any work has been put on hold pending disposition of these charges.

28In a thorough and well-constructed plea for leniency on your behalf, your counsel, Mr Trotter, submitted that you should not have to serve any more time in prison.  He asked me to pass a sentence that reflects time served of 136 days.  I do not accept that such a disposition would properly reflect the level of your offending.  It would not in my view reflect proper application of the principle of general deterrence and nor would such a disposition properly serve to sufficiently denounce your offending.

29In making his plea Mr Trotter accepted from the outset that your offending was serious and warranted the imposition of a term of imprisonment which he submitted should be no more than time served of 136 days.  He relied upon all of the mitigating factors above.

30Mr Jones submitted that having regard to the level of offending any sentence which did not have as a component an immediate custodial disposition would be manifestly inadequate.

31As I say I regard your prospects for rehabilitation as reasonable.  I am satisfied that as a relatively young man you have taken steps to rid yourself of drugs.  I am satisfied that since being bailed you have helped others especially your mother and that you have worked casually where possible in your field as a mechanic.  I accept your employment prospects are good and that as a youthful offender you can still have a worthwhile life.  I accept your pleas of guilty at the earliest opportunity reflect genuine remorse on your part for your offending.  I also accept that by cooperating with authorities and in undertaking to give evidence against others you have placed yourself at considerable risk of harm and that if gaoled your time in prison would be more burdensome than for other prisoners not informers.  However, even having regard to all of these factors I have concluded that an immediate term of imprisonment should be imposed.

32In passing sentence I have reduced the individual sentences I have imposed because of your pleas of guilty and your undertaking to give evidence against others.  I have also taken these matters into account in fixing an early release date and providing for a longer than normal period on parole. 

33On the charge of theft in indictment C12549555 you are convicted and sentence to a term of imprisonment of six months.

34Dealing with the charges in indictment D12112822.

35On Charge , theft, you are convicted and sentenced to a term of imprisonment of six months.

36On Charge 2, theft, you are convicted and sentenced to a term of imprisonment of 12 months.

37On Charge 3, theft, you are convicted and sentenced to a term of imprisonment of 18 months.

38On Charge 4, theft, you are convicted and sentenced to a term of imprisonment of two months.

39On Charge 5, theft, you are convicted and sentenced to a term of imprisonment of 18 months.

40On Charge 6, dishonestly handling stolen goods, you are convicted and sentenced to a term of imprisonment of six months.

41On Charge 7, dishonestly handling stolen goods, you are convicted and sentenced to a term of imprisonment of 12 months.

42On Charge 8, theft, you are convicted and sentenced to a term of imprisonment of six months.

43On Charge 9, dishonestly handling stolen goods, you are convicted and sentenced to a term of imprisonment of 18 months.

44On Charge 10, dishonestly handling stolen goods, you are convicted and sentenced to a term of imprisonment of 12 months.

45On Charge 11, cultivate a narcotic plant, you are convicted and sentenced to a term of imprisonment of 18 months.

46On Charge 12, possession of a category A long arm firearm without a license, you are convicted and sentenced to a term of imprisonment of six months.

47On Charge 13, possession of a category C long arm firearm without a license, you are convicted and sentenced to a term of imprisonment of nine months.

48On Charge 14, possession of equipment to make identification information, you are convicted and sentenced to a term of imprisonment of three months.

49On the summary offence of unlicensed driving you are convicted and sentenced to seven days' imprisonment.

50I direct that six months of the sentences imposed on each of Charges 5, 9 and 11 cumulate upon the sentence imposed on Charge 3 making a total effective sentence of three years.

51I direct that you serve a minimum term of 15 months' imprisonment before being eligible for release on parole.

52I declare there has been 136 days pre-sentence detention under the sentences passed this day and that 136 days' imprisonment be reckoned as having been already served and entered into the records of the court and deducted administratively.

53I direct that the fact I sentence you on Charges 2, 3 and 5 as Continuing Criminal Enterprise Offences be entered into the records of the Court.

54For the purposes of section 6AAA of the Act I state I have imposed sentences being terms of imprisonment and I have reduced the overall sentence I would have imposed but for your pleas of guilty.  Had it not been for your pleas of guilty to the charges I would have imposed a total effective term of imprisonment of six and a half years and I would have fixed a non-parole period of four years.

55The prosecution seeks a forensic sample order pursuant to s.464ZF of the Crimes Act.  The application was not opposed and having regard to the level and nature of your offending I am of the opinion it is in the public interest that such an order be made and I have signed that order which, having been made, authorises a member of the police force to take a forensic sample from your body which in this case is a swab from the inside of your mouth.  A member of the police force may use reasonable force to obtain the sample.

56The prosecution seeks restitution orders pursuant to s.84 of $4,771 in favour of VMS Hire Company Pty Ltd in relation to the offending in Charge 1 in indictment C12549555, $2,750 in favour of Blair’s Panel Shop and Farm Machinery Service in relation to the towing costs of stolen vehicles and other property from the shed' and $20,012.46 to Elders Insurance in relation to the stolen Toyota Land Cruiser handled by you in relation to Charge 6.  In the prosecution opening these are incorrectly referred to as compensation orders.

57Those orders were opposed. Mr Trotter in opposing these orders relied on cases dealing with s.85B of the Sentencing Act.  The orders sought are not based on that section but on s.84 and ought properly have been described as restitution orders.  When looked at in that way in my view it is appropriate the orders sought be made.

58He also opposed the making of disposal orders in relation to mobile phones seized.  In my view it is appropriate the orders be made and I have signed them.

59(Section 464ZF order signed and acknowledged.)

60(Restitution orders signed and acknowledged.)

61(Disposal order signed and acknowledged.)

62Any matters arising out of that, Mr Lew?

63MR LEW:  No, Your Honour.

64HIS HONOUR:  Mr Slattery?

65MR SLATTERY:  No, Your Honour.

66HIS HONOUR:  Very well.  Would you remove Mr Launer please.

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