Director of Public Prosecutions v M.S.
[2015] VCC 181
•20 February 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 14-01738
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| M.S. |
---
| JUDGE: | HIS HONOUR JUDGE CARMODY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 4 December 2014 |
| DATE OF SENTENCE: | 20 February 2015 |
| CASE MAY BE CITED AS: | DPP v M.S. |
| MEDIUM NEUTRAL CITATION: | [2015] VCC 181 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D Cordy | |
| For the Accused | Ms M Truong |
HIS HONOUR:
1MS, on 4 December 2014 you pleaded guilty to 13 charges on the indictment at the Latrobe Valley County Court. The plea hearing on that date was adjourned part heard to allow for a forensic report to be obtained prior to finalisation and sentencing you on the 13 charges on that indictment.
2The 13 charges include six separate occasions of burglary and theft, and one charge of handling stolen goods. The charges of theft each have a maximum sentence of ten years imprisonment, the burglary charges each have a maximum penalty of ten years imprisonment, and the charge of handling stolen goods has a maximum penalty of 15 years imprisonment.
3I turn to the circumstances of your offending. The background of the offending is that you and a co-accused Myers, and others, were involved in burglaries and theft of abalone from seafood processors in Victoria. The abalone industry is regulated by a quota system in Victoria. There is only 16 licensed abalone receivers or processors in Victoria. The stolen abalone was to be sold on the black market by you or those you were associated with in this criminal enterprise.
4The offences occurred between 12 December 2007, and 30 April 2008. In effect a period of five months of consistent offending. Your co-accused Myers has been dealt with for this same type of offending, but the offending in his case extended from December 2003 to April 2008. I will return to this in more detail when dealing with the issues of parity of sentence.
5The prosecution read into the court record an extensive summary of your offending. I will only summarise your offending in these reasons for sentence.
6The black market price for abalone varies from year to year. In and around the time of your offending, that is 2007 and 2008, the black market price for shucked abalone meat per kilogram was $90. In 2006 and 2007 you were living with your father in the family home. Your father died from stomach cancer approximately in 2009.
7For a time you were living alone. Your father had been living in a nursing home. In that period, you met your co-offender Myers through a mutual friend. At this time, your methylamphetamine use increased and you became indebted to Myers who was obtaining the drug for you. You also damaged Myers' car resulting in further debt to Myers. It was also at this time that you joined with Myers in the criminal enterprise of burglaries and theft of abalone for the purpose of supplying the black market in that product. It was theft to order activity involving large sums of money.
8Charge 1 and 2. Between 12 and 13 December 2007, you, Myers and others burgled the premises of the Mallacoota Abalone Fisherman's Co-operative and stole a quantity of abalone. A total of $205,000 of export grade abalone was stolen. The abalone was packaged in 10 kg boxes. The method of the burglary involved the avoidance of an alarm system at the premises and considerable planning and equipment used to access the premises and the freezers where the abalone was stored.
9Charge 3 and 4. On 1 February 2008, you and your co-accused Myers burgled a Tasmanian Seafood's premises at Dandenong. You gained access to the premises in much the same method employed at Mallacoota in December 2007. Your activity was disturbed by a worker at the premises. The theft on this occasion was dried abalone and sea cucumbers valued at $13,000.
10Charges 5 and 6. On 3 February 2008, you and others burgled the premises of Australian Abalone Exporters at Laverton. You gained entry to the freezer area of the premises. The method of burglary and entry to the freezer was similar to that - of the prior burglaries at Mallacoota in 2007 and also in 2004. You are not charged with the offence, in 2004. Myers has been.
11In this burglary the alarm was activated which interrupted the theft process. A plastic grey bucket containing $1950 worth of abalone was stolen. The investigators believe that when you, Myers and your other co-accused had been unsuccessful in your burglaries at Tasmanian Seafood's and the Australian Abalone Exports, you then travelled to Port Fairy.
12Charges 7, 8 and 9. Between 5 and 6 February 2008, you and your co-accused burgled the Sou'West Seafood's at Port Fairy. The method of burglary showed the same degree of planning and sophistication of the previous burglaries. You and your co-offenders avoided activating the alarm sensors at that premises. A total of $250,000 worth of abalone was stolen from the premises on that occasion. In the commission of these offences, a Hino truck was also stolen from the compound of Sou'West Seafood's. The Hino truck was recovered approximately 3 km from the factory in the area used to dump empty abalone shells. That fact shows some degree of surveillance and understanding of the Sou'West process.
13Charges 10 and 11. In the course of investigation of, you and Myers the police discovered that you had burgled the premises at the Mallacoota Pony Club in Genoa Road, Mallacoota between 26 and 30 April 2008. You and others stole a Seiko stopwatch and a black watch from the Mallacoota Pony Club at the time of that burglary. That was a holding place for you at the time of that burglary communicated on 27 April 2008.
14
Charges 12 and 13. On 24 April 2008, you and Myers and Edwards and another person travelled from Sydney to Eden. On 27 April 2008, you and the co-accused burgled the premises at the Mallacoota Abalone Fisherman's
Co-operative. The method of entry to the premises was the same as in December 2007. You were disturbed at the premises and you were seen on CCTV leaving the premises. On the following day, police located an Isuzu truck registered WXJ290 belonging to Eden Bedding and Furniture Warehouse, near the Co-operative premises. This truck had been stolen and abandoned in this position. You were involved in the handling of that stolen truck.
15I now turn to your personal circumstances. You are 37 years old. You grew up in Belmore in Sydney. You are the youngest child of your combined family of seven children. Your mother was a gambler and your father was alcohol dependent. You have given Dr Deakin, a psychiatrist, a history of being an isolated and emotionally neglected as a child.
16Your education was limited. In primary school you required the assistance of speech therapy and special aids to finish at Year 7. You left school because you could not cope with the rigours of secondary school. You have an indifferent employment history. You worked for brief periods in unskilled labouring roles including asbestos removal, demolition and excavation.
17The longest period of employment you have had is two years. You have a long history of illicit drug use. At age 13 you commenced using cannabis. You have also used cocaine, ketamine and methylamphetamine. In 2007, you developed a significant amphetamine dependency. In 2007, as I said before, you were living in the family home and Myers moved into live with you.
18You became indebted to him over the drugs and the damage to his car. You have told Dr Deakin that you entered this criminality with Myers so that the debt would be repaid. Your mother had died when you were 20 years old. Your father had moved to a nursing home but died in 2009. At that time you were in custody in New South Wales for matters not related to these offences.
19You have a criminal history between February 1993 and January 1996. You appeared in New South Wales Children's Court on five occasions. You then appeared in the District or Local court in New South Wales on six separate occasions since that time.
20On 21 December 2008 you were arrested and placed in custody for the charges of aggravated burglary and kidnapping charges. You remained in custody until 20 December 2012. You remained out of trouble until approximately November 2013, when you were dealt with drug offences. Again on 14 February 2014, you were sentenced for failing to appear on bail and other drug offences. You remained in custody in New South Wales until you were extradited to Victoria on these charges on 20 May 2014.
21At the time your co-accused was sentenced in Victoria, that is in June and July of 2010, you were in custody in New South Wales. Somehow you were not dealt with at that time. Since the offending in this case, you have a spent a total of, on my calculation, four years and three months in custody in New South Wales. It may be four years and six months. You have been in custody in Victoria on remand for these charges since 20 May 2014, which I am told is a total of 276 days.
22The totality principle has a role to play in your sentence. Dr Deakin, in his report dated 17 February 2015 assess you as functioning in the low intellectual range, possibly borderline intellectual disability range. Dr Deakin is of the opinion that you are currently experiencing a level of major depression. His opinion is your mental health status requires further evaluation and treatment. Dr Deakin's opinion enliven the principles of Verdins case in your sentence.
23I now turn to the sentencing considerations. The issues for sentencing you, MS are complex. First of all there is delay. The last of your offending was said to have occurred in April 2008. You were interviewed. Your arraignment occurred on 4 December 2014. Due to the uncertainty surrounding the legality of sentencing options in your case, and your mental health condition, the sentencing process was delayed until today, 20 February 2015.
24In effect you have had these charges hanging over your head for six and a half years. From the beginning to the end the total delay, that is from your first offending to now, is nearly seven years. The fact of delay raises the issue that the specific deterrence in this case is less by virtue of the gap in time between the offence and the punishment. The delay is not caused by your activity other than the obvious matter that you left the jurisdiction and were sentenced in it. You were then sentenced in New South Wales and remained in custody between 2008 and 2010 when your co-accused faced court for the same offences.
25A simple cross-border search could have located you and maybe you could have been dealt with closer to the time of the crime. In any event, that has not happened. The totality principle has two applications in your case.
26Firstly, due to the delay in your sentencing, you have spent on my calculations, four years and three months in custody in New South Wales since the time of the offence and your extradition to Victoria on 20 May 2014. Whilst the sentences in New South Wales and Victoria are for different offending, the total period in custody is to be taken into account so as not to a crushing sentence upon you.
27The second aspect of totality is that there are 13 charges to be dealt with in this sentence. When sentences are imposed for numerous offences, I as a sentencing judge should stand back and look at the overall picture and decide whether the total of what would otherwise be the appropriate sentence is a fair and reasonable total sentence to impose upon you.
28This is an aspect of the totality principle which the High Court has set out in Mills v R. It is a recognised principle of sentencing formulated to assist the court when sentencing an offender for a number of offences such as this in your case. It is described succinctly in Thomas, which is a book on principles and sentencing as follows:
"The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences. To review the aggregate sentence and the consider whether the aggregate is just and appropriate. The principle has been stated many times in many forms when a number of offences are being dealt with and specific punishment in respect of are being totted up to make a total. It is always necessary for the court to take a last look at the total just to see whether it looks wrong. When cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing a sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is an appropriate sentence for all of the offences".
29Further to that, you have pleaded guilty and the Crown have properly conceded your plea is to be treated as a guilty plea at an early stage. Your plea has a utilitarian value of allowing the orderly and effective administration of justice. There is a certainty of outcome and a resolution of the substantive issues raised by your offending. Your plea also has allowed for the preservation of court and police resources to deal with other matters. In this case, as I have said during argument, there is some 74 witnesses, probably more who would have been involved in this case. It would have been a very lengthy and complex trial. You have by your plea avoided that happening.
30Your plea indicates the public confidence in the legal process set up to protect the community. As I say, you have by your plea, saved a long and expensive trial. The plea of guilty indicates and demonstrates your remorse. Your plea is clear acknowledgement by you that you accept your responsibility for the criminal behaviour in this case. Your plea also recognises you are willing to facilitate the course of justice in the community.
31Parity of sentence between the co-accused in your case, Myers, is a further consideration in fixing your sentence. In your interview with Dr Deakin, you say your role is peripheral to Myers but appropriately you accept your culpability for each of the charges. Myers was sentenced for charges of similar offending going back to 2003.
32Myers knew the ropes. To quote your counsel, “He was the cookie cutter.” But you were an active and willing participant in this criminality. This offending is serious. It is planned and professionally executed. It is motivated by greed and opportunism. In the cumulation of sentences and fixing of the individual sentences for the charges, I take into account the principles of parity between Myers and yourself.
33As previously outlined, the Verdins principles apply, particularly that you are of low mental functioning and now suffer depression. Those factors make your time in custody more difficult and indicates some mitigation of your sentence.
34Imprisonment is the only appropriate sentence for your offending, the basic purpose for which a court can - impose a sentence of imprisonment, of punishment are deterrence, both specific and general, rehabilitation, annunciation of protection of the community. In sentencing you, I must have regard to a range of factors such as the seriousness of your offences, your culpability for them and your personal circumstances. I am required to balance the interests of the community in denouncing your criminal conduct with the interest of the community in seeking to ensure as far as possible, offenders are rehabilitated and reintegrated into society.
35The prosecution submitted that imprisonment is the appropriate sentencing disposition. That is correct. Your own counsel submitted that you need some assistance in rehabilitation. I am guarded about your rehabilitation prospects. But your rehabilitation will be managed by the Parole Board when you get to that stage. Would you stand, please.
36On Count 1, you are convicted and sentenced to 12 months' imprisonment. On Count 2, you are convicted and sentenced to 14 month's imprisonment.
37On Count 3, you are convicted and sentenced to 12 months' imprisonment. On Count 4, you are convicted and sentenced to six months' imprisonment.
38On Count 5, you are convicted and sentenced to 12 months' imprisonment. On Count 6, you are convicted and sentenced to six months' imprisonment.
39On Count 7, you are convicted and sentenced to 12 months' in prison. On Count 8, you are convicted and sentenced to 14 months' imprisonment.
40On Count 9, you are convicted and sentenced to six months' imprisonment. On Count 10, you are convicted and sentenced to 12 months' imprisonment.
41Count 11, you are convicted and sentenced to three months' imprisonment. Count 12, you are convicted and sentenced to 12 months' imprisonment. Count 13, you are convicted and sentenced to six months' imprisonment.
42The base sentence is Count 1, which is 12 months. I order the following cumulation. From Count 2, six months. From Count 3, three months. From Count 4, two months. Count 5, three months. Count 6, two months. Count 7, three months. Count 8, six months. Count 9, to months. Count 10, three months. Count 11, one month. Count 12, three months and Count 13, two months. All to be served cumulative upon one another and the base sentence of 12 months in Count 1.
43On my calculation, that is a total effective sentence of four years imprisonment. I order that you serve a non-parole period of two years and nine months prior to being eligible for parole. I declare that you have served 276 days at pre-sentence detention in respect of that sentence.
44Pursuant to s.6AAA of the Sentencing Act, but for your plea of guilt, I would have sentenced you to six years with a minimum period of four years imprisonment. Pursuant to s.89(4) of the Sentencing Act, I order that all your during licences be cancelled for a period of three years from this date. That is on Charges 9 and 13. Was there a forfeiture order?
45MR CORDY: No.
46HIS HONOUR: They have already been dealt with? Thank you. And forensic sample?
47MR CORDY: It is an automatic retention, Your Honour. Your Honour will see from the opening that the ‑ ‑ ‑
48HIS HONOUR: That has been done.
49MR CORDY: - - -the accused had been sampled so yes.
50HIS HONOUR: Yes, thank you. So that is done so I do not need to make an order. Now can someone check my arithmetic?
51MR CORDY: I am just going to do that, Your Honour. Just pardon me a moment.
52MS TRUONG: Your Honour, could you repeat Count 5, how many months, please?
53HIS HONOUR: Sorry, the ‑ ‑ ‑
54MS TRUONG: Count 4, how many months for the accumulation from.
55HIS HONOUR: Four? Two months.
56MS TRUONG: Two months? Is the Crown going to calculate the expiry date?
57HIS HONOUR: You check it. No, they do not do the expiry date. They just calculate the - and you will check them, what it all adds up to.
58MS TRUONG: I am not good at ‑ ‑ ‑
59MR CORDY: Yes. I get 36 months on top of the 12 months, Your Honour.
60HIS HONOUR: Yes.
61MS TRUONG: What date are you counting from the 275 days prior?
62HIS HONOUR: It is 276.
63MS TRUONG: Yes.
64HIS HONOUR: Every day counts, 276. Yes so ‑ ‑ ‑
65MS TRUONG: From May?
66
HIS HONOUR: So what - yes. That is the calculation. That is the
pre-sentence detention in Victoria.
67MS TRUONG: I will wait for the Crown to calculate.
68HIS HONOUR: No, they have done all that. They have done all that.
69MS TRUONG: Can you calculate ‑ ‑ ‑
70HIS HONOUR: Just so it is clear, it is not - if in New South Wales, MS, if you just listen. In New South Wales, it may be that you get an expiry date, a set date for release. That does not occur in Victoria. What happens is, as I have just ordered, there is a total effective sentence which in this case is four years. And then there is a non-parole period which is you cannot be released from gaol from two years and nine months in this case.
71OFFENDER: Yep.
72HIS HONOUR: And from that two years and nine months, I have declared that you have already spent 276 days of that of that two years and nine months in custody.
73MS TRUONG: Yes, he has already done that from - yes.
74MR CORDY: In round terms, another two years to go before eligible for parole.
75HIS HONOUR: Yes, roughly.
76MR CORDY: In rough terms.
77MS TROUNG: Two more years.
78MR CORDY: Roughly that, Your Honour.
79HIS HONOUR: Yes, so we are all clear about that?
80OFFENDER: Yes, (indistinct).
81MS TRUONG: So in effect, did he actually get a little bit more than Myers in a way or not?
82HIS HONOUR: More than who?
83MS TRUONG: Myers.
84HIS HONOUR: No.
85MS TRUONG: No?
86HIS HONOUR: On my calculation he got markedly less.
87MS TRUONG: So he got four years and Myers got the six.
88HIS HONOUR: Yes. That is right.
89MS TRUONG: Myers has got the six.
90HIS HONOUR: Your client has got four and Myers ‑ ‑ ‑
91MS TROUNG: Got six, is it not. Is that correct?
92MR CORDY: Six with four and a bit, yes. Six and a bit with four.
93MS TROUNG: Yes, but what about that total six years Your Honour was talking about though? Prior to our conversation, you said total of six years, - a number of four years for ‑ ‑ ‑
94HIS HONOUR: I am sorry, thank you. Just to clarify. In Victoria - I do not think it happens in New South Wales and in fact I am pretty sure it does not. In Victoria, I am required - when I sentence your client, I am required to make an order under s.6AAA of the Sentencing Act, all right? The requirement is that I am to tell him and the world, by that I mean anyone and in the open court. What I would have sentenced him to for this criminality if he had run the trial. So in effect, to put it in bold terms, he saved himself by his plea two years of a head sentence. In effect as it has turned out, two years of a minimum sentence by his plea. Do you understand that, MS?
95OFFENDER: Yes.
96MS TRUONG: Thank you, Your Honour. Thank you, Your Honour may I be excused.
97HIS HONOUR: Thank you very much. You can remove the prisoner. Thank you very much for your assistance. I will just hand those back to the Crown maybe? Thank you very much.
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