Director of Public Prosecutions v Lomas
[2015] VCC 1808
•8 December 2015
| Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 15-01271
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRENDAN LOMAS |
---
| JUDGE: | HER HONOUR JUDGE PATRICK |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | |
| DATE OF SENTENCE: | 8 December 2015 |
| CASE MAY BE CITED AS: | DPP v Lomas |
| MEDIUM NEUTRAL CITATION: | [2015] VCC 1808 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Office of Public Prosecutions | Mr J. Henderson | |
| For the Offender | Mr A. Lewin |
HER HONOUR:
1Mr Lomas, you have pleaded guilty to one charge of theft, Charge 1, and six charges of possession of a drug of dependence which are Charges 2 to 7 on the indictment. You have also pleaded guilty to four uplifted summary charges, being Charge 5 possession of cartridge ammunition, Charge 6 deal with property suspected of being proceeds of crime, Charge 8 committing an offence while on bail and Charge 11 breaching a bail condition.
2The circumstances of your offending are set out in detail in the Summary of Prosecution Opening which was tendered as Exhibit A. In brief, the circumstances are that on 19 August 2014 you rented a truck from Thrifty Car and Truck Rental. On 26 August 2014 you were charged with other offences and bailed to appear at a later date. You were supposed to return the truck to Thrifty on 24 August 2014 and you did not do so. On 27 August 2014 Thrifty began attempting to recover the truck and eventually reported it as stolen. Your keeping of that truck beyond the time that you were supposed to keep it is the subject matter of Charge 1 of theft.
3On 10 September 2014, police found the truck. They then saw you come and unlock the truck. They came and had a conversation with you and you admitted that you had the keys to the vehicle and ultimately admitted that you had hired the vehicle. In the truck when it was searched were found a number of different quantities of drugs which are the subject matter of the possession of a drug of dependence charges. There were six different types of drugs, all of which were in a very small quantity, apart from the drug which is the subject matter of Charge 2 which was methylhexanamine weighing 442.8 grams. The police also found 129 rounds of .22 millimetre ammunition, one round of .32 millimetre ammunition and two rounds of .38 millimetre ammunition. They found a Samsung tablet behind the driver's seat. They then found a bag containing one shotgun cartridge, two further shotgun cartridges in a guitar case and four shotgun cartridges in a brown carry bag and further small amounts of drugs which form part of the drug of dependence charges.
4All these offences were committed whilst you were on bail for other offending. You were charged after participating in a record of interview. In that record of interview you made significant admissions. You were charged and released on bail. You failed to report on bail on 14 occasions.
5At the conclusion of the committal hearing, you indicated a plea of guilty to Charges 3 and 5 on the indictment. The matter then resolved in late September this year after discussions between prosecution and defence. The matter proceeded on the basis of the current charges. A more serious charge was no longer proceeded with.
6The prosecutor made application for a forensic sample to be taken from you and for disposal and forfeiture orders. The making of those orders was not opposed.
7In sentencing you, I have taken into account your personal circumstances as they were outlined by your counsel. I accept that up untill you were about 26, you had tried to make a career as a personal trainer. It appears that you have been seriously involved in the kickboxing area and have tried to keep yourself fit. You had been involved to some degree with drug use but when you stopped kickboxing you had difficulty adjusting and your drug use then escalated. I accept that you had continued to try and work from time to time in the debt collection industry and also in the business of buying and selling second hand tyres. I note that there were a number of second hand tyres found in the truck. I accept the explanation given by your counsel that all of the items in the truck were there because you had had to vacate the rental premises that you were using for your tyre business. I accept that that was why all the drugs and ammunition were collected in the truck. I accept on the balance of probabilities that all the drugs were for your personal use and I sentence you accordingly in respect of those matters.
8At the time of this offending you had no prior criminal offences. You have been dealt with in the Magistrates' Court and then in this court on offending the bulk of which offending appears to be the offending for which you were on bail when these offences for which I am dealing with you were committed.
9It appears that at that time you were engaged in the use of a widespread range of drugs, using whatever drugs that you could find or obtain. It is of course of great concern that you had a considerable amount of ammunition. The explanation with which I have been provided is not a satisfactory explanation as to why you had that ammunition. I cannot draw any conclusion that you had it for any unlawful purpose, other than possession of it. There were no firearms found. You had no capacity according to the evidence to use it to shoot anybody or do anything else such as that. I can draw no conclusion as to the actual reason why you had it but it is of concern that you had such a large amount of ammunition.
10The theft of the motor vehicle is a serious offence but this is at the lower end of theft of motor vehicle offending. It appears that you hung onto the vehicle rather than deliberately went and took it from anybody. That is a different type of offending than the offending of a person who deliberately goes and hires a vehicle in order to steal it. I am satisfied that that is not what you did but that you paid rental for the vehicle but then could no longer keep up payments and did not return it when you were supposed to.
11My view is that the seriousness of this offending is not such that imprisonment is required. I do consider the objective seriousness of it particularly that the offences were committed whilst you were on bail, means that a fine would not be within the appropriate sentencing range. In my view that would not give sufficient weight to the sentencing considerations of just punishment, denunciation, general deterrence and specific deterrence. I do consider that a community correction order would give sufficient weight to those sentencing principles in this case, given the lower seriousness of this offending compared to other types of offending.
12You were sentenced to a community correction order on 8 October 2015. You have already spent 25 days in custody in relation to other offending for which you were sentenced in the Magistrates' Court in July 2015 in respect of theft of motor vehicle. I have taken those matters into account in imposing the sentence that I am imposing on you in terms of the application of the principle of totality. If these matters had all been dealt with together you would have been entitled to some concurrency in respect of the different offences.
13It is of concern in terms of your prospects of rehabilitation that you engaged in repeated offending over a period of time and appeared unable to stop that offending, despite having been caught by the police. I accept that, as Mr Lewin says, your period in custody has had a salutary effect and that you do not wish to go to prison again. In order to avoid that, it is very important that you address the issues which underlie your drug use and which underlie your offending. The only way you are going to be able to do that is with the support and assistance of persons such as psychologists and counsellors.
14In my view it is important that you are punished in some way and a community correction order provides the opportunity for doing that by imposing community work on you. I consider that if you are able to complete the community work, undergo the assessment and treatment conditions provided on the other community correction order and stay offence free over the next 18 months, then your prospects for rehabilitation would be very good. At this stage I consider that they are reasonable but I consider that they will improve consistently if you are able to comply with the community correction order. Your rehabilitation is clearly in your interests and it is also in the community's interests.
15You have support, as I understand it, from your family and from your partner. With that support, if you are able to focus on and comply with the community corrections order, your prospects for leading a positive life will improve considerably. I hope you are able to do that.
16I am making the forfeiture and disposal orders that were sought. I am making an order for the taking of a forensic sample from you. I consider that that is justified and in the public interest because of the widespread nature and seriousness of your offending and because the making of the order was not opposed.
17I also consider that making that order provides some incentive to you not to re-offend. Once your DNA is on record, then it may be that if you are involved in offending, that your saliva for example could be detected and that might dissuade you from further offending as well.
18I will be making an order which will be sent to you that you will be required to attend a police station within a certain period of time. The police will take a sample from you by way of a saliva swab from your mouth. I am required to tell you that if you do not cooperate with them, they are entitled to use reasonable force and to take a blood sample. I am sure that you will cooperate with them when you go to the police station.
19In respect of Charge 1 of the theft, I am cancelling your driver's licence. You are disqualified from driving in the State of Victoria for a period of three months. You must not drive while your licence is disqualified. There are significant penalties for driving while disqualified.
20You are entitled to a significant discount for your plea of guilty. I consider that that plea of guilty was made at a reasonably early stage in this proceeding. Your plea of guilty has saved the cost and inconvenience of a trial in this matter.
21Your plea of guilty also indicates your acceptance of your legal responsibilities for this matter. I accept that you are regretful about this offending. I do not take your remorse as being any deeper than that. I have also taken into account that you did make admissions to the police and were cooperative with them when they located you and the truck.
22You are relatively young. You have got plenty of time ahead of you to make sure that you do complete your CCO and then try to obtain education and employment if that is what you wish to do. I consider that specific deterrence has in some way already been achieved. I consider that you understand already that if you offend again you will suffer more serious punishment. Specific deterrence needs to be given some weight but not a great deal of weight in sentencing you.
23I do intend to impose a community correction order on you in respect of all of the charges. The community correction order that I intend to impose would go for 18 months from today. It would require you to do 150 hours of community work. Those hours would need to be completed in addition to the hours that you already have to do under the existing community correction order.
24I would have given you more hours of community work if I had been sentencing you to this community correction order without you already being on one so I have taken into account that you have already got to do quite a lot of hours but I consider that 300 hours all up over a period of 18 months is reasonable. That is achievable even if you are working during that period of time.
25You have had the core conditions of the order explained to you previously. Mr Lomas, do you consent to that order being made?
26OFFENDER: Yes, Your Honour.
27HER HONOUR: Thank you. So on all of the charges you are convicted and placed on the community correction order that I have said for a period of 18 months with the special condition that I have outlined. My reading of s.6AAA of the Sentencing Act 1991 is that I am not required to give you an indication of what the discount was for your plea of guilty. What I would say is that but for your plea of guilty, I would have sentenced you to a term of imprisonment of nine months. Could you take a seat please, Mr Lomas.
28Is there anything that I have left out of a technical nature, Mr Henderson or Mr Lewin, that you can think of?
29MR HENDERSON: No, Your Honour.
30MR LEWIN: No, Your Honour.
31HER HONOUR: All right, thank you. Please contact me as soon as possible if there is anything. Ms Ollquist is going to print out the CCO. Mr Lewin, would you be able to go with Ms Ollquist and get Mr Lomas' signature on it once I have signed it? Thank you. Mr Lewin, Ms Ollquist has put the supervision condition in as well. He is already being supervised so I might just actually get that deleted because it did not say that ‑ ‑ ‑
32MR LEWIN: There are ramifications if there are additional conditions put in.
33HER HONOUR: Yes, that's right. So he has already got - and I would need a report probably for that ‑ ‑ ‑
34MR LEWIN: As well as.
35HER HONOUR: Yes. So we will just cut that one out. You will see the summary charges actually are listed up the top rather than down the bottom of this list when you get to see it. Thank you.
36Now, Mr Lomas, the other thing I should have said - I assume you know this - that if you breach the community correction order by failing to do what the correctional staff tell you or by committing further offending, you can be brought back before me on breach of the order. If you are brought back before me, I have the power to re-sentence you in relation to these matters. Without wishing to offend you, I hope that I do not see you again. I hope that you are able to comply with these orders. I think that will be your best shot for a positive life.
37Community correction orders are not easy to do. If you can stick at it and focus on them, they are often of considerable assistance to people. I hope that is so in your case. Thank you. Thank you, Mr Henderson. Thank you, Mr Lewin.
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