Director of Public Prosecutions v Lockerbie

[2019] VCC 1915

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

AT MILDURA
CRIMINAL JURISDICTION

CR 19-01165

DIRECTOR OF PUBLIC PROSECUTIONS

v

BRYTON LOCKERBIE

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JUDGE:	HER HONOUR JUDGE LAWSON
WHERE HELD:	Mildura
DATE OF HEARING:	19 November 2019
DATE OF SENTENCE:	20 November 2019
CASE MAY BE CITED AS:	DPP v Lockerbie
MEDIUM NEUTRAL CITATION:	[2019] VCC 1915

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Criminal law – sentencing – burglary, theft of firearms and theft – young offender – disadvantage in early life – early plea of guilty – Community Correction Order imposed.

Cases cited:R v Mills (1998) 4 VR 235 - Azzopardi v R; Baltatzis v R; Gabriel v R (2011) 35 VR 43 - Bugmy v R (2013) 87 ALJR 1022; 249 CLR 571 - Boulton v The Queen [2014] VSCA 432

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions For the Accused	Mr D. O'Doherty Mr R. Thyssen	John Cain, Solicitor for to Office of Public Prosecutions Hilton-Wood Solicitors

HER HONOUR: 

1Bryton Lockerbie, you have pleaded guilty before me to one charge each of burglary, theft of firearms and theft, and those charges are numbered 5, 6 and 7 on a joint indictment with Daniel Carter.  Daniel Carter has been charged separately with another charge of burglary, two charges of theft and one charge of arson.  He is to be sentenced at a later date. 

2In addition, you consented to a summary charge being dealt with by the court, one charge of commit an indictable offence whilst on bail, being transferred.  You entered a plea of guilty in relation to that charge.

3The charges are serious and the maximum penalties for the offences are, for theft and burglary, 10 years' imprisonment, and for theft of firearms, 15 years' imprisonment and commit an indictable offence whilst on bail, 3 months or 30 penalty units.

4You admitted your prior criminal history.  There are a number of appearances in the Children's Court that span a period from 17 August 2010 to 21 April 2015 and they included references to dishonesty offending, some crimes of violence against the person, criminal damage, some drug-related offending and breach of court orders. In the past, you have been in custody in the juvenile justice system, however you have never served any periods in adult custody.

5There has been a subsequent court hearing at the Magistrates' Court, Mildura on 26 February 2019. You received without conviction a fine of $2,000 for offences of theft, possession of a prohibited weapon, namely a knife, and three charges of use an unregistered vehicle.  A separate charge of burglary was withdrawn. 

6I will now proceed to sentence you on the basis of the summary of the prosecution opening that was read at the plea hearing.

7You are now aged 21.  You were 20 at the time of the offending.  This offending occurred in the company of Daniel Carter, who is aged 23 and he was 22 at the time of the offending.  You both knew each other initially through meeting at a skate park, but latterly you have been both part of a drug-using milieu.  At the time of the offending you were living together at the same premises.

8On 15 February 2019 you had both been using methamphetamines and during a conversation it was decided that you would steal firearms belonging to Mr Carter's stepfather, Trevor Mitchell.  You both went together to Mr Mitchell's place at 9 Trafalgar Drive, Mildura to scope out stealing the guns.  You arrived at about 10 am and Mr Carter went into the house first to make sure no one was home.  He removed the glass louvre panels of the shed window and gained entry.  He then used pliers to unlock the shed door, following which you entered the premises.

9Mr Lockerbie then located a multi tool and used it to remove the bolt from the front of the gun safe to enable the removal of five guns, together with ammunition, details of which are in paragraph 13 of the Crown opening, namely one Lanber shotgun, one Remington centrefire rifle, one BRNO rimfire rifle, one Sterling rimfire rifle and one Webley & Scott air rifle, together with five boxes of .22 ammunition, one box of .308 primer, one bottle of .308 gun powder and numerous shotgun shell boxes.

10You both then placed those items that were taken from the gun safe into two bags.  Mr Carter then sprayed the safe with a can of degreaser ostensibly to get rid of his fingerprints.  Contact was then made for another person to come and collect him from the address.  He took one of the bags containing four of the stolen firearms and ammunition to another friend's address.  You returned home, taking the other bag containing the other stolen firearm and placed that under your bed.  That constitutes the charges of burglary, theft of firearms and theft.

11Mr Carter then made contact with some others to arrange the sale of the firearms.  You were later requested to assist Mr Carter to see if you could help trying to sell the other guns.  You sent a message to a friend Phillip Neery on Snapchat to see if he was interested in buying guns.  Neery then attended at the address and purchased two of the rifles, being a shotgun and a .22 rifle, from Mr Carter.

12You asked Mr Carter to bury two of the remaining firearms in the back garden, because you did not want them in the house, and he did so.  Later on, two of the people who purchased a firearm from Mr Carter decided to return it and the ammunition.  Eventually those people told the owner, Mr Mitchell, that Mr Carter had broken into his shed and stolen his firearms, following which the matter was reported to police.

13You were arrested on 16 February and made a record of interview, during which you did not admit to any involvement in the offending.  Some two days later you approached the police and made a statement in which you did make full admissions to the offending.  No motivation for your offending was identified; however, Dr McConaghy, the clinical psychologist who saw you, in her report of 19 October 2019, states that you gave no reason for your current offending other than you had always wanted that particular type of gun, referring to one of the ones that was stolen.

14She said that is suggestive of a high level of impulsivity, and combined with poor judgment, they are the key elements of your offending.  My own assessment is that you were overborne by Mr Carter. You are a young, impressionable and very immature person and that, combined with your drug taking at the time, to a large extent provides a context and explanation to your offending.  Whilst providing that context, it in no way excuses your behaviour and you must be punished accordingly.

15I have regard to your background and history.  You were born in Dunedin, New Zealand and came to Australia aged two with your mother and an older brother Jordan.  There are three stepbrothers from your father's previous relationships.  You had very limited contact with your father, who has had no real involvement in your life.  He remains in New Zealand.  Your mother lives in Red Cliffs near Mildura and your brother Jordan lives in Alice Springs.

16You had problematic behaviours demonstrated at school as a consequence of which you were placed in a variety of foster care arrangements from Grade 4 and placed with an uncle in Grade 6.  Then you were transitioned into secure welfare in Swan Hill and Bendigo. 

17It is apparent that your mother could not cope with your disruptive behaviours and therefore there has been a lot of involvement with the Department of Health and Human Services in your care whilst you have been growing up. 

18From age about 11 you have had contact with the juvenile justice system and have at times been held in custody in juvenile detention. 

19You completed Year 10 whilst in juvenile justice and you have had some employment.  Latterly the most significant employment was the employment that you obtained whilst you were working in Alice Springs.  During that time you were living with your brother Jordan and you were working with Toyota, undertaking work in the car parts industry.  You lived there for about 18 months.

20You had left Mildura to get away from negative drug using peers.  Sadly when you were in Alice Springs you began drinking heavily.  There was an occasion on your 20th birthday that you were stabbed, as a consequence of which you were hospitalised. 

21Recently you moved back to Mildura. You were looking for work and you were in receipt of Newstart allowance.  You had resolved to improve your life and get a job, but you quickly slid back into illicit substance abuse and began mixing with the wrong crowd, including your co-offender.  Ultimately that led to the offending for which you are currently before the court.

22You are in a relationship with Stephanie, who is also known as Mimi Phillips. Recently your son Ari was born on 10 September 2019. 

23You have a chronic history of long-term cannabis use as well as using methylamphetamines. 

24You pleaded guilty to this offending at a very early stage and you were cooperative and made fulsome admissions to the police upon your arrest.

25You are a young man and you are still considered to be a young offender, having just turned 21. 

26I accept all the matters put on your behalf in mitigation by Mr Thyssen.  You were cooperative and, as I said, made a fulsome statement to police, making full admissions in relation to this offending and you entered a plea of guilty at the earliest stage.

27Your plea has real utility and your plea means that you will receive a significant discount in sentencing.  You have facilitated justice.  It is also indicative of genuine remorse and ultimately through your plea you have saved the victim the further trauma of having to come to court to give evidence and also spared the State the expense and inconvenience of a trial.

28As you are a young offender, a youthful offender, the principles of Mills[1] and Azzopard[2] apply and rehabilitation is an important sentencing consideration.  A youthful offender is not to be sentenced to an adult prison if such a disposition can be avoided, especially where an offender is beginning to appreciate the effects of his past criminality. 

[1]R v Mills (1998) 4 VR 235

[2]Azzopardi v R; Baltatzis v R; Gabriel v R (2011) 35 VR 43

29Overall, given those factors that I have identified, I consider that you do have reasonable prospects of rehabilitation. 

30Today, I received a reference from Denise Street, who is present in court, who confirms that for the past six months you have been helping her with jobs involving painting, pulling up old carpet and lino and gardening. Whilst you have been working with her at her home, she states that you are polite and productive and there are still some duties for you to continue. 

31She has travelled from Gol Gol to be present in court and her reference does mean a lot, because it does shed a different light upon you and your character and I have taken that into consideration.  It is important that you have got somebody in the community who is prepared to come forward and support you in court.

32You are a young man who has experienced significant disadvantages throughout your formative years and I have regard to the Bugmy[3] principles.  It is important that you be encouraged to address what it is that is leading to you participating in offending so as to avoid you going into the adult custodial system, where I consider you to be most vulnerable. 

[3]Bugmy v R (2013) 87 ALJR 1022; 249 CLR 571

33I have had regard to what the Court of Appeal has said in the guideline sentencing judgment of Boulton v The Queen[4].  In that case the court emphasised the negative impacts of imprisonment on youth and accepted that a Community Correction Order can be punitive and capable of deterring others in providing for specific deterrence.

[4] [2014] VSCA 432

34I must formulate just punishment and in that respect it is important to look to the future as well as to the past.  I consider that there is a real benefit to the community at large as well as to you personally and to your family if future criminal activity can be avoided, and therefore I have structured the sentence in order to give effect to that goal.

35In fixing sentence I have had regard to the purposes of general and specific deterrence, rehabilitation, denunciation and the need to protect the community.  Ultimately I have concluded that a Community Correction Order in the manner that I have earlier described meets all relevant sentencing objectives. 

36You have been assessed as suitable for such an order and I have explained to you the nature of the order and also consequences of contravention.  You have acknowledged directly to me that you fully understand all the terms of the order and consent to it being made and understand the consequences of contravention.  I will now announce my formal orders.

37In relation to the charge of burglary, commit indictable offence whilst on bail, theft and theft of firearms, you will be convicted and placed on a Community Correction Order of two years' duration commencing from today's date and ending on 19 November 2021.  In addition to the core conditions, which I have explained, there will be further special conditions, namely 100 hours of unpaid community work.  You will be under supervision of a Community Correction Officer for that period of two years and you must undergo assessment and treatment, including testing for drug abuse or dependency as directed, any mental health assessment and treatment that is necessary and also participate in any programs or courses that address your offending behaviour as directed.

38I make the order that all hours of treatment and rehabilitation satisfactorily undertaken are to be counted as hours of unpaid community work for the purposes of the unpaid community correction condition. 

39I make the order pursuant to s.6AAA of the Sentencing Act but for your plea of guilty I would have sentenced you to two years and six month's imprisonment to serve 18 months. 

40Finally I make the order pursuant to s.464ZF(2) of the Crimes Act that you undergo a forensic procedure for the taking of a non-intimate sample.

41That last order just means that you will have to go to the police station and they will give you a little cotton bud to pop inside your mouth.  Provided you do that, you will satisfy the order.  But if you do not, I have to tell you that the sample cold be taken by way of a blood sample otherwise.  I have made that order having regard to the seriousness of the circumstances of the offending.  I consider it is warranted.  It is by consent and it is in the public interest.

So that concludes my part.  You have just got to sign the Community Correction Order. I will get Mr Thyssen to explain that to you and get you to sign that.  Once you have signed that, we will do a copy for you and you will be free to go.  All right, so that is all right. That concludes the matter.  I will leave the Bench now and my associate will make a copy. All the best for the next two years.  All right, so take care of yourself, but importantly take care of your son and your partner.  Thank you, Ms Street, for coming.  It is much appreciated.  It helps the courts a lot when they know that there is other people in the community who are prepared to come along and give support in court for people like Bryton.  He needs all the help he can get I think.

42MS STREET:  I think he's been shown a bit of support in that way rather than ‑ ‑ ‑

43HER HONOUR:  Well, I hope so.

44MS STREET:  ‑ ‑ ‑ that way.

45HER HONOUR:  It's good to know.

46MS STREET:  So the only problem is in I'm in Gol Gol, which is New South Wales.

47HER HONOUR:  I know, but that's okay.  He can speak to the Community Correction Officer about his ongoing relationship with you and working with you.  And I'm sure, given what I know about the Corrections people here, they're pretty understanding and they'll allow him to do that.  But he's just got to tell them.  So make sure you tell them that.  I'll give you this.  If you can copy it for me, and then you can provide that to Corrections when you go there.  All right.  Good, we can adjourn.

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