Director of Public Prosecutions v Loftus
[2018] VCC 1489
•12 September 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-17-02089
Indictment No. H11950967
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| STEPHEN LOFTUS |
---
JUDGE: | HIS HONOUR JUDGE TRAPNELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 July 2018 | |
DATE OF SENTENCE: | 12 September 2018 | |
CASE MAY BE CITED AS: | DPP v Loftus | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1489 | |
REASONS FOR SENTENCE
---
Subject: CRIMINAL LAW – SENTENCE
Catchwords: Burglary – Theft – Obtain property by deception and attempt – Blackmail – Blackmail over course of one day – No actual or threatened physical violence – Significant breach of trust – Lower end of mid-range seriousness – Early pleas of guilty – Problematic amphetamine use – Delay – Loss of concurrency with subsequent offences – Totality
Legislation Cited: Crimes Act 1958 ss 74(1), 76(1), 76(3), 81(1), 87(3), 321M, 321P(1)
Cases Cited:Alexandros v Birchell (2000) 31 MVR 307 – Barbaro v R (2012) 226 A Crim R 354 – Bellizia v The Queen [2016] VSCA 21 – DPP v Rongonui (2007) 17 VR 571 – Hadjou (1989) 11 Cr App R (S) 29 – Qarau v The Queen [2013] VSCA 141 – R v Rumpf [1988] VR 466 – R v Vo, unreported, VSCA 14/05/1998
Sentence: Total effective sentence of 3 years’ imprisonment with 2 year non-parole period
---
APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr D Plummer (Plea) Ms R Furletti (Sentence) | Mr J Cain, Solicitor for Public Prosecutions |
| For the Accused | Mr S Kennedy (Plea) Mr B Tait (Sentence) | Tait Lawyers |
HIS HONOUR:
1 Stephen Geoffrey Loftus, you have pleaded guilty to an indictment containing two charges of burglary,[1] three charges of theft,[2] seven charges of obtaining property by deception,[3] one charge of attempt to obtain property by deception[4] and one charge of blackmail.[5]
[1]Contrary to s 76(1) Crimes Act 1958.
[2]Contrary to s 74(1) Crimes Act 1958.
[3]Contrary to s 81(1) Crimes Act 1958.
[4]Contrary to ss 81(1) and 321M Crimes Act 1958.
[5]Contrary to s 87 Crimes Act 1958.
2 The maximum penalty for burglary,[6] theft,[7] and obtaining property by deception[8] is 10 years’ imprisonment. The maximum penalty for attempting to obtain property by deception is 5 years’ imprisonment.[9] The maximum penalty for blackmail is 15 years’ imprisonment.[10]
[6]Pursuant to s 76(3) Crimes Act 1958.
[7]Pursuant to s 74(1) Crimes Act 1958.
[8]Pursuant to s 81(1) Crimes Act 1958.
[9]Pursuant to ss 81(1) and 321P(1) Crimes Act 1958.
[10]Pursuant to s 87(3) Crimes Act 1958.
3 The prosecution filed a summary of prosecution opening dated 19 February 2018, which I have been told by your counsel I can treat as a statement of agreed facts.[11]
[11]Exhibit P1.
The facts
4 At the time of the offending, you were employed by Independent Project Solutions, a business engaged in office fit outs and demolition. This business was jointly owned by Aaron Freeland and your father, Terry Loftus. Apparently there had been some financial pressures whereby your father had lent money to Mr Freeland. I was told by your counsel that you blamed Mr Freeland for the company’s financial difficulties.[12]
[12]See statement of Aaron Freeland taken and acknowledged 15 July 2016 at [35] (Exhibit A2).
5 On 8 July 2016, you entered 30 Convention Centre Place, South Wharf, using a swipe card. Independent Project Solutions had been contracted to undertake work at that site and you were working on the site as a sub-contractor to that company. (Charge 1)
6 You took the goods lift up to level six and stole two tool kits containing tools worth $2,366.85 belonging to three men who were sub-contractors working on the site. You also stole a wallet belonging to another sub-contractor working on the site. (Charges 2 & 3)
7 CCTV footage shows you leaving the site with the above items that morning. You were wearing sunglasses and a hood in an attempt to conceal your face.
8 Shortly after leaving the site, you used a credit card you removed from the wallet to make a number of purchases of whisky, a jewellery box, an electric planer, cigarettes and other unknown items totalling $419.65. None of these items have been recovered. (Charges 4–10 inclusive)
9 On 12 July 2016, you went to 250 Collins Street, Melbourne. Independent Project Solutions had been engaged to conduct demolition work at this site. You had been provided with an access pass for this site the previous day. You used the access pass to enter the building. (Charge 11)
10 You stole two security shirts, two two-way radios, a mobile phone and approximately 100 sets of keys to the building from the security office. Master keys for buildings at 230, 234 and 250 Collins Street were amongst the keys you stole. You also stole a Stanley toolkit with assorted tools. (Charge 12)
11 CCTV footage shows you leaving the building carrying some of the stolen items in the early hours of the morning at 4.52 am. You had to make multiple trips between your car and the building in order to transport all of the stolen items.
12 The combined value of the items stolen on this occasion is $4,909.97. There was also a significant cost involved in changing the locks to the buildings concerned. I have made a compensation order in favour of the victim in the sum of $19,765.66.
13 Mr Freeland spoke to site security following this burglary and identified you on the CCTV. The access pass that had been given to you was also identified as the pass used to gain entry. Later that day Mr Freeland spoke to you over the phone and told you that you were banned from the site. Despite this, you went again to 250 Collins Street where you were subsequently arrested by police.
14 Police searched you and found the access cards that had been used to gain entry to 250 Collins Street. Police also found a number of keys and tools in a sports bag that you held. You were taken to Melbourne West police station and you consented to police searching your car. Your home in Point Cook was also searched.
15 During these searches, police located the Stanley toolbox, the orange high-visibility top that you wore during the burglary, a large number of keys, and a white bag that had been used to carry the items from 250 Collins Street. The master keys and security shirts were not recovered.
16 You participated in a recorded interview with police in which you said:
(a) You have ‘on occasion picked up a wrong tool or something like that’.
(b) You thought Aaron was setting you up.
(c) The toolbox identified in the back of the Ford Focus was not in the car previously and someone was trying to set you up.
(d) ‘Aaron, Adrian or Wade’ gained access to your house and moved things around.
(e) Aaron knew that you were going back to the site to get your tools.
(f) You did not purchase the jewellery box.
(g) ‘[You] do not steal things.’
Your answers were not frank. I do not accept your counsel’s submission that you co-operated with police on this occasion.
17 You were released from custody pending summons.
18 On 13 July 2016 you contacted Mr Freeland and demanded $500 for the return of the master keys and uniforms. You stated that you wanted $300 now and the rest could be paid at a later time. Later that day you met with Mr Freeland in Altona and he paid you $300. You did not return the keys and left shortly after receiving the money. You made more demands of Mr Freeland that day by text message and he deposited a further $350 into your bank account.
19 During the course of 13 July you continued to demand money from Mr Freeland. You asked for a further $300 and arranged to meet him at a restaurant in Docklands. When Mr Freeland was en route to the restaurant, you sent him a text message telling him you were dropping the keys into the water. Mr Freeland asked a former employee, Adrian Newman, to accompany him to the meeting. According to Mr Newman, you did not have the keys with you at the meeting, so Messrs Freeland and Newman left.
20 Subsequently, you sent a text message to Mr Freeland saying, ‘silly boy 500 now’. Mr Freeland paid a total of $650 to you in two separate transactions as a result of your demands. (Charge 13)
21 On 17 July 2017 you went to Werribee Cash Converters with the planer that you had purchased using Mr Hart’s credit card. You sold the planer to Cash Converters for $20, using your driver’s licence for identification. (Charge 14)
22 On 2 November 2016 you attended the Melbourne West police station by appointment. You participated in a taped record of interview where you said:
(a) In the first interview the majority of what you said was true but you also ‘embellished’ and there were some ‘misleading’ aspects.
(b) You stole two uniforms from 250 Collins Street and disposed of them in the Yarra.
(c) You took the keys and left them at a drug dealer’s house who wouldn’t give the keys back.
(d) You were affected by ice at the time and ‘you’re not thinking straight when you’re on ice’.
(e) You took tools from 30 Convention Centre Place and traded them for drugs.
(f) You took a wallet and used cards found in the wallet to make a number of purchases in the Williamstown area.
(g) You committed the offences due to desperation, stupidity and ice use, and you were just trying to get some of the money that Aaron owed you.
(h) You had a number of conversations with Aaron about returning the stolen keys, ‘what [you were] trying to do was basically get some money out of him’, you said. ‘On a couple of occasions, he gave [you] some money and then he sent Adrian and Wade to beat [you] up’.
I accept that on this occasion you did make relevant admissions.
23 You were again released from custody pending summons.
Victim impact
24 No victim impact statement was made in this case. However, where no victim impact statement has been tendered, a sentencer may draw reasonable inferences regarding the impact of an offence upon the victim.
Offence seriousness
25 The most serious offence for which you fall to be sentenced is the charge of blackmail. The gravity of your offence is increased by the fact it was committed the day after you were arrested, searched and interviewed by police in relation to the matters giving rise to charges 1 to 12. Clearly, your detection in relation to your other crimes did not act as a deterrent for you.
26 A further exacerbating feature of this offence is that you blackmailed Mr Freeland for the return of the keys you had stolen from his company’s client, Davinski Nominees Pty Ltd, which is partly the basis of charge 12. Thus, you sought to profit from your earlier crime. Apparently, you ultimately threw these keys away and they have not been recovered. As a consequence, Davinski Nominees had to change a large number of locks in three city buildings. As I said earlier, I have ordered compensation in their favour in the sum of $19,765.66. This is relevant to the impact of your crime on the victim.
27 I take into account in your favour that this is not a continuing case of blackmail, the offence being committed during the course of one day. Moreover, there was no actual or threatened physical violence directed by you towards the victim.
28 Accordingly, I consider your crime to fall at the lower end of the mid-range level of seriousness for offences of this kind.
29 General deterrence, denunciation and just punishment are significant sentencing considerations in this case.[13] In Hadjou,[14] Lane LCJ said of blackmail that it:
... is indeed one of the most vicious crimes in the calendar of criminal offences and it is perhaps due to the fact that the courts always impose severe sentences that one so seldom, if ever, finds a person convicted for the second time of blackmail ... Deterrence is perhaps the most important part of a sentence in a case such as this only just after the question of punishment.[15]
[13] See R v Vo, unreported, Victoria Court of Appeal, 14 May 1998, Phillips CJ, Callaway & Batt JJA, 4 (Callaway JA), 6 (Batt JA) (‘Vo’); Qarau v The Queen [2013] VSCA 141 [32] (Ashley JA, Coghlan JA agreeing).
[14](1989) 11 Cr App R (S) 29.
[15] Ibid 30.
30 Blackmail is an offence that is frequently hard to detect, especially where the perpetrator preys, or attempts to prey, on the fear that their conduct inspires.[16] Moreover, as Callaway JA observed in R v Vo:[17]
… blackmail is a crime that requires the victim to be put in fear and kept in fear, I would add that, for that reason, it is essential that those who have the courage to report the offence or to give evidence for the Crown know that their efforts will not be wasted and that the offenders will be appropriately punished.[18]
[16]Vo 4.
[17]Vo 5.
[18]Vo 5 (Callaway JA), 6 (Batt JA).
31 Here, there was blackmailing for intended financial gain. The amount of money sought to be extracted was not large, although, as Ashley JA observed in Qarau v The Queen, ‘the gist of the offence is the making of an unwarranted demand with menaces, not the amount demanded’.[19]
[19][2013] VSCA 141 [30].
32 The emphasis I have given to the crime of blackmail is not to be taken to diminish the seriousness of your other crimes, which are serious enough in their own right. It is clear you had set out on a course of conduct to commit numerous dishonesty offences in order to feed your drug addiction.
33 It is a concerning feature of some of these offences that you stole from other workers on building sites to which you had access. You stole tradespeople’s tools, which they depend upon so as to earn their livings. I consider that a significant breach of trust is involved in this aspect of your offending conduct.
Personal circumstances
34 You were born in the United Kingdom on 19 November 1977 and are now 40 years old. You are single, but have five surviving children. You immigrated to Australia with your parents when you were 10 years old. According to Mr Bernard Healy, a forensic psychologist who saw you in August 2017, you are not an Australian citizen.[20] No submission was made regarding the relevance of this for sentencing purposes.
[20]Bernard J Healy, Psychological Report dated 20 August 2017, p 7 (Exhibit A3).
35 Your parents separated when you were 15 years old and you remained at home alone in rented accommodation at Rockingham to complete your education, your mother having moved out with a new partner, taking your younger brother with her. Despite this, you maintained contact with both your parents. Your parents eventually re-partnered. Your step-mother and step-father have passed away. You have a 37 year old brother, who serves in the army and he lives in New South Wales. Your father was present in court during the plea hearing and is present here today.
36 You successfully completed year 12 at Rockingham High School in Western Australia. You studied computer programming at a TAFE college before deciding to join the army, but you were rejected in 1995 as medically unfit owing to scoliosis of the spine. You have completed a Certificate II in Community Services.
37 From the age of 16 you worked part-time at a supermarket, then for 'Cost Plus' for 12 months, before accepting an offer to work in your father's cleaning business, where you remained for 12 months until the contract ended. You then worked in the building industry, for a security company, in sales for a carpet company, tele-marketing and in your father’s air-conditioning company. You then established your own company selling mobile telephones. You then worked for another air-conditioning company for five years before coming to Victoria in the latter part of 2014.
38 In Victoria you were employed by another air-conditioning company, by your father in a fitness business and as a sub-contractor to your father’s former business partner, Mr Freeland, the victim of the blackmail. Over the past three months you have been employed in cleaning, maintenance, and construction, and you have recently established a small business on your own account in cleaning and maintenance in addition to the other work you perform as an employee and/or subcontractor. According to Mr Fry, who interviewed you for an Extended Pre-Sentence Assessment at my direction, your current employer is unaware of the fact you are presently subject to a CCO and you are facing the present charges in this Court.[21]
[21]Extended Pre-Sentence Assessment - Outcome Report, dated 3 September 2018, p5 (Exhibit C1).
39 At the plea hearing, I received an unsigned letter from a Mr David Carney dated 10 July 2018, which may have some relevance to this employment.[22] He speaks of your general character and work ethic and concludes that he looks forward to ‘an ongoing relationship with [you] in both business and personal [sic] capacity’. Today I have received three further character references, one from your now partner, Jillian Anne Davis, who has been your partner for the past several months; one from you father, Mr Terry Loftus, and one from a friend, Mr Duncan Ryan. I have taken all of those character references into account in your favour.
[22]Exhibit A4.
40 You met a woman with whom you formed a relationship. It was she who introduced you to cannabis and methylamphetamines. That is not your current partner, I might add. According to Mr Healy, your drug abuse was ‘exacerbated by the death of [your] father’s partner, Julie, [in early 2016,] further compounded by the suicide of [your] son in December 2015.’[23] According to Mr Fry, you are suffering from ongoing grief as a consequence of your son’s tragic death and your step-mother’s death. In his opinion, you need psychological counselling for this, however, he reports you are ‘not willing to address these issues at this point in time’.
[23]Ibid p 5.
41 You married in 2001, a lady 5 years your junior, whom you had lived with for the previous three years. You separated in 2005. You had three sons, one who suicided in December 2015 at the age of 14. The surviving sons are aged 15 and 11 and are in the care of their mother and stepfather. Your elder son suffers from fibrosis dysplasia, for which he has undergone surgical procedures.
42 You married for the second time in 2012, a lady with whom you had been living since 2007. You separated in 2014. Three daughters were born to this relationship, who are now aged 9, 7 and 4. You are uncertain of the exact location of your children, but you believe they are living in Perth. You currently have no plans to move back to Western Australia.[24]
[24]Fry Report p 5.
43 Since your release from custody in February 2018 you have been residing on your own in a boarding house in Kew.
44 You have suffered from asthma since the age of 12 for which you take medication. In 2013 you were the victim of an attack with a baseball bat, being stuck in the back of the head. You were rendered unconscious and admitted to hospital. In 2016 you sustained burns to your face and body and you were placed in an induced coma for five days. You have made a full recovery.
Substance abuse and mental health
45 You began using cannabis at the end of 2014 before starting to use methylamphetamine. It is your use of methylamphetamines that is particularly problematic. By 2015 you had developed a daily habit. You had made an attempt to cease your substance abuse not long before you were remanded in custody in June 2017. Whilst you were in custody, you apparently abstained from drugs and you reported that you have abstained from drug use whilst on bail.[25] However I will deal with some matters regarding that later.
[25]However see below at [64] & [66].
46 You have had problems in the past regarding your alcohol consumption. You voluntarily admitted yourself to a rehabilitation unit run by the Salvation Army. Reportedly, you are now a ‘social drinker’.
47 Since your early 30s, you have been treated for depression and you were previously prescribed the anti-depressant, Cymbalta. Mr Healy reports that you no longer suffer ‘the significant depression and anxiety that troubled [you] previously’.[26]
[26]Bernard J Healy, Psychological Report dated 20 August 2017, p 7 (Exhibit A3).
48 Mr Healy conducted a number of tests. You are above average in intelligence. While delayed recall was ‘somewhat reduced’, there were ‘no major test signs of cerebral dysfunction’. According to Mr Healy, ‘Personality testing was indicative of vulnerability to substance abuse; however, with stabilization linked to anti-depressant medication, abstinence from substance abuse, the ending of a most unhelpful relationship and his involvement now to the assistance of others, his emotional state has improved markedly’.[27]
[27]Ibid p 6.
49 In August 2017, Mr Healy noted you were then ‘awaiting placement on programs in the prison designed to address behavioural and substance abuse problems’.[28] No material was placed before me of any programs you have completed whilst in prison.
[28]Ibid.
50 In light of Mr Healy’s failure to diagnose any relevant mental illness, no Verdins principles are engaged in your case.
Prior criminal history and subsequent offences
51 Your have a prior criminal history in Western Australia which consists of convictions for breaching a violence restraining order, breaching a police order and assault occasioning bodily harm, together with a number of traffic offences which have been dealt with by way of fines.
52 You also have a large number of subsequent offences committed in Victoria. I was provided with your Victoria Police Criminal Record dated 31 January 2018 and a Report of Charges in Consolidated Case dated 12 July 2017 (‘a supercase’).[29] On 12 July 2017 you appeared before the Melbourne Magistrates’ Court charged with: make threat to kill – 1 charge, threat to inflict serious injury – 1 charge, intentionally cause injury – 1 charge, recklessly cause injury – 2 charges, assault by kicking – 1 charge, unlawful assault – 2 charges, charges relating to contravening a family violence intervention order – 2 charges, burglary – 3 charges, theft – 3 charges, obtain property by deception – 1 charge, possess methylamphetamine – 1 charge, possess controlled weapon – 1 charge, criminal damage – 2 charges, and commit indictable offence whilst on bail – 2 charges. These offences were committed between 27 March 2016 and 14 June 2017. Police brief summaries relating to those charges were also tendered.[30]
[29] All tendered as a bundle in exhibit P3. It is not possible for me to reconcile the supercase with the criminal record. I have therefore adopted a conservative approach to the subsequent offences.
[30]Part of exhibit P3.
53 On these charges you were convicted by the Magistrates’ Court and sentenced to a total effective sentence of 8 months’ imprisonment with a community corrections order for 15 months to follow. Twenty-eight days PSD was declared.
54 By reason of that declaration, and the fact you were serving a sentence of imprisonment while on remand for the offences which are before me, there is no PSD to be declared in this case.
55 Moreover, because the offence of blackmail falls outside the jurisdiction of the Magistrates’ Court, you also have lost the opportunity of having most of the matters before me dealt with in the Magistrates’ Court at the same time as the other offences I have enumerated. Whilst the present offences are entirely unrelated to the offences dealt with on 12 July 2017, it is likely that there would have been some concurrency ordered between the offences dealt with on 12 July 2017 and the present offences.
56 These circumstances are relevant to the application of the totality principle in sentencing you for the present offences, and I take these matters into account in your favour. I will impose a more lenient sentence on you than I otherwise would have.
57 You also have a number of driving offences and another charge of contravene family violence intervention order for which you were dealt with in the Melbourne Magistrates Court on 13 November 2017. On that occasion you were given a total effective sentence of 3 months’ imprisonment which was made wholly concurrent[31] with the sentences imposed on 12 July 2017.
[31] I note the Victoria Police Criminal Record states that the ‘Effective total state term imposed is 3 months Part [sic] concurrent with State sentences presently being served and imposed prior to this day’, however, the notation continues: ‘Concurrent portion of sentence is 3 months’. Thus, as I read the criminal record, the sentences imposed on 13 November 2017 were effectively made fully concurrent with the sentences the prisoner was then undergoing.
58 I was told by your counsel that you were released from custody on bail in relation to these matters on 5 February 2018 and you have not reoffended in the meantime.
59 While subsequent convictions cannot be taken into account in the same way as prior convictions can, they bear upon my assessment of your character and shed light on your risk of recidivism, which is relevant to the weight I give to specific deterrence and protection of the community in sentencing you for the present offences. They are also relevant to my assessment of your prospects of rehabilitation.[32]
[32] See R v Rumpf [1988] VR 466, 475 (McGarvie J, Young CJ and Murray J agreeing); Alexandros v Birchell (2000) 31 MVR 307, 310–1 [15], [18] (Smith J); DPP v Rongonui (2007) 17 VR 571, 580 [37] (Maxwell P); Bellizia v The Queen [2016] VSCA 21 [75], [77]–[78] (Santamaria JA)
60 It is evident from your recent criminal history that you have been on an extensive and diverse offending rampage since 27 March 2016. Accordingly, I must give significant weight to specific deterrence and protection of the community in your case. I can also only adopt a guarded approach to your prospects for rehabilitation. Much will depend on your capacity and resolve to remain drug free in the future.
Mitigating circumstances
61 You first indicated your intention to plead guilty to these charges at a committal mention in the Magistrates’ Court on 17 October 2017. I accept these are pleas at the earliest reasonable opportunity. Your relatively early pleas of guilty have utilitarian benefit and also indicate an acceptance of responsibility on you part and a willingness to facilitate the course of justice. However, there is insufficient evidence before me to make a finding in your favour that there is true contrition and remorse in your case.[33] I did not understand your counsel to submit to the contrary. Indeed, given your attitude to the offence of blackmail, in particular, as expressed by you to Mr Fry,[34] it is clear you are unrepentant and entirely lacking in remorse. You also lack insight into your offending conduct.
[33]See Barbaro v R (2012) 226 A Crim R 354, 364–365 [32]–[38] ((Maxwell P, Harper JA and T Forrest AJA)
[34]See report dated 3 September 2018 pp 1–2 (Exhibit C1).
62 I accept that there has been delay in this case. You have had these matters hanging over your head for some 22 months since you were interviewed in relation to the blackmail offence on 2 November 2016. I take this into account in your favour.
63 Since you have been on a community correction order (‘CCO’) since being released from custody in relation to the matters for which you were sentenced on 12 July 2017, I ordered an Extended Pre-sentence Assessment – Outcome Report be prepared.[35] You commenced that CCO on 6 February 2108 and it is due to expire on 5 May 2019. You are required to undergo supervision, assessment and treatment for drug abuse and offender behaviour programs. According to your case manager, you engage well and ‘normally’ attend for supervision as directed. You have one unacceptable absence from supervision.
[35]Dated 3 September 2019 (Exhibit C1).
64 So far as your engagement with drug counselling is concerned, and the requirement that you remain drug free, it is clear your compliance has been poor. Your case manager reports that:
Mr Loftus was a transfer from Werribee CCS and he was initially referred for drug counselling with Mr Ned Thompson at Co-Health in Collingwood. He was sent for a standard episode of counselling (four sessions) and only attended three before Mr Thompson closed his case.
Due to Mr Loftus missing nine scheduled appointments. [sic] He has been re-referred to EACH in Box Hill for counselling with Ms Laura Lynham, which he attended.
In Addition [sic] to counselling, Mr Loftus has been sent for two supervised drug screens. The first screen (23.04.18) came back positive for Methamphetamine and the second screen (20.07.18) came back positive for marijuana. According to the case manager, Mr Loftus did not disclose that he was using each of these substances before attending. When questioned afterwards, he stated that he lapsed with his ice use and stated that he uses marijuana for pain relief in his back.
65 You are currently waitlisted for the Men’s Behaviour Change program.
66 You scored a high risk of reoffending according to the Level of Service/Risk-Need-Responsivity tool. Mr Fry reported: ‘The high level of needs were his companions followed by his alcohol/drug problem and family and material issues’. It is clear from Mr Fry’s report that you drink alcohol excessively. When you reported for an interview with Mr Fry you had a BAC reading of .099% at 10.10 am. You admitted to Mr Fry that you continue to smoke marijuana ‘now and then’. You apparently believe that you do not require assistance for you drug and alcohol problems and that counselling is ‘a waste of time’.
67 Despite your problematic behaviour and attitudes, according to Mr Fry you are ‘deemed suitable for a further Community Correction Order’.
68 Your counsel submitted that an appropriate sentence was to continue you on a further CCO ‘with appropriate conditions’. The DPP submitted that a sentence involving some immediate custody combined with a CCO was called for. I am of the opinion that the only sentence appropriate in your case is an immediate term of imprisonment with a non-parole period. In other words, I consider that a sentence of immediate imprisonment is the only appropriate sentence which will achieve the purposes for which these sentences are imposed.[36]
[36]See Sentencing Act 1991 s 5(4).
Application of sentencing principles
69 The basic purposes for which a court may impose a sentence are just punishment, deterrence, both specific and general, rehabilitation, denunciation and protection of the community. In sentencing you, I must have regard to a range of factors, such as the seriousness of the offences, your culpability for them, the effect of your offending on any victim and your personal circumstances.
70 I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, you are rehabilitated and reintegrated into society.
71 General deterrence, denunciation and just punishment are important sentencing considerations in this case, particularly in sentencing you for the offence of blackmail. I am also of the view that, in your case, specific deterrence and protection of the community must be given significant weight given your high risk of re-offending and you inability to remain drug free since being released from custody. Moreover, I can only adopt a very cautious approach to your prospects for rehabilitation.
72 I have had regard to sentencing practices in relation to the offences before me in light of the decision of the High Court of Australia in DPP v Dalgliesh (a Pseudonym).[37] It is difficult to gauge more than a very general yardstick from so-called ‘comparable’ cases, given the wide range of offending conduct that can constitute the offences for which you fall to be sentenced and the myriad of personal circumstances pertaining to individual offenders. To the extent that I have been able to gain any assistance from comparable cases, I have sought to do so in your case.
[37](2017) 91 ALJR 1063.
73 Ultimately, as I said earlier, I am of the opinion that the only appropriate sentence necessary to achieve the purposes for which these sentences are imposed is a total effective sentence of imprisonment with a non-parole period. I have particularly had regard to the principle of totality.
74 I consider that it is appropriate to impose an aggregate sentence of imprisonment on charges 2, 4, 5, 6, 7, 8, 9 and 10. These offences are founded on the same facts and form part of a series of offences of a similar character.
Stand up Mr Loftus
On charge 1 (burglary) you are convicted and sentenced to 12 months’ imprisonment.
On charges 2, 4, 5, 6, 7, 8, 9 and 10 (theft of Mr Hart’s wallet and the misuse of his stolen credit card) you are convicted and sentenced to 6 months’ imprisonment.
On charge 3 (theft of the tools) you are convicted and sentenced to 4 months’ imprisonment.
On charge 11 (burglary) you are convicted and sentenced to 14 months’ imprisonment.
On charge 12 (theft of the keys, etc) you are convicted and sentenced to 6 months’ imprisonment.
On charge 13 (blackmail) you are convicted and sentenced to 18 months’ imprisonment.
On charge 14 (obtain property by deception) you are convicted and sentenced to 3 days’ imprisonment.
The sentence of 18 months’ imprisonment on charge 13 will be the base sentence and I order 5 months of the sentence imposed on charge 1, 3 months of the aggregate sentence imposed on charges 2, 4, 5, 6, 7, 8, 9 and 10, 2 months of the sentence imposed on charge 3, 6 months of the sentence imposed on charge 11 and 2 months of the sentence imposed on charge 12 be served cumulatively on the sentence imposed on charge 13. The sentence on charge 14 is to be served concurrently with the other sentences I have imposed. This makes a total effective sentence of 3 years’ imprisonment. I order that you serve a minimum term of 2 years’ imprisonment before becoming eligible for parole.
Pursuant to s 6AAA of the Sentencing Act 1991 I state that the sentence I would have imposed on you but for your plea of guilty would have been a sentence of 4 years’ imprisonment with a non-parole period of 3 years’ imprisonment.
Remove the prisoner
5
0