Director of Public Prosecutions v Muir

[2022] VCC 665

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

AT MELBOURNE

CRIMINAL DIVISION

CR-18-02361

THE DIRECTOR OF PUBLIC PROSECUTIONS

v

SHANE MUIR

---

JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	22 March 2022, 8 and 11 April 2022
DATE OF SENTENCE:	12 April 2022
CASE MAY BE CITED AS:	DPP V Muir
MEDIUM NEUTRAL CITATION:	[2022] VCC 665

REASONS FOR SENTENCE

---

Catchwords: Criminal law – sentence. 
Pleaded guilty to one charge of theft as a course of conduct on 42 occasions over 3 week period – mid-range of seriousness -  52 year old – health problems – collapse of business – marriage breakdown - significant mental health issues
Sentence -  3 year Community Correction Order 100 hours unpaid community work

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr B. Nibbs	OPP
For the Accused	Mr A. Marshall	Camerons Lawyers

HER HONOUR:

1       

Shane Muir, you have pleaded guilty to one charge of theft which occurred between 3 and 25 July 2017.  During that time you stole 16,578 pallets from

CHEP Australia Limited, by collecting pallets from CHEP depots on

42 occasions.  These collections were made by truck drivers driving your trucks and employed by you in your trucking business. 

The offending

2       CHEP conducts a business of hiring equipment including pallets for use in the storage and transport of goods and materials.  The hiring fee for each pallet is charged until the pallet is returned and the customer pays $35.50 for a lost pallet.  There is a “black market” for these pallets, in which pallets are sold for substantially less than the compensable fee. 

3       

The business of which you were a director, Saldam Transport

Propriety Limited, applied to CHEP on 12 January 2016 for commercial credit in relation to the hire of pallets.  It was approved and CHEP opened an equipment hire account with you.  Just over a year after you made the application, a receiver was appointed to your business.

4       

Four months later in June 2017, CHEP received an application for commercial credit from C&B Investments (Vic) Pty Ltd, naming one

Craig McKenzie as director.  This application also sought credit in relation to the hire of pallets, anticipated to be 1,200 per month.

5       You prepared this application in the name of CNB and submitted it to CHEP, intending to deceive CHEP as to its origins and to facilitate theft of the pallets to sell them on the “back market”.  The credit application was duly approved. 

6       

Between 3 and 25 July 2017 orders were submitted to CHEP in the name of CNB and 23,186 were supplied in a total of 58 separate transactions.  This unusually high level of activity alerted staff at CHEP who appointed private investigators to make inquiries.  Surveillance was carried out at the

Altona depot of CHEP and elsewhere and observations were made of trucks collecting and transporting pallets hired in the name of C&B.

7       

On 24 July 2017, two trucks registered to you left the Altona depot each carrying a load of pallets.  One travelled to your address at

405 Goulburn Valley Highway, Shepparton where pallets were unloaded and reloaded.  The other truck drove to 870 Channel Road, Shepparton where they were unloaded.   This was the premises of Salman Brothers of whom the director was David Salman.  You had known Salman for 15 years. 

8       A few days before the delivery you had rung Salman and offered him CHEP pallets at $8 each.  Salman agreed to buy 300.  You attended at the delivery of these pallets and received from Salman a cheque for $2,400 payable to you.  Salman was later told by CHEP that the pallets were stolen and he agreed to return them to CHEP. 

9       

On 25 July, two trucks registered to you left the Altona depot loaded with pallets and drove to 530 Midland Highway, the address of

Mountain Valley Produce and Detour Transport Logistics, of which the director was Colin Beer.  Pallets were unloaded from each truck.  Beer had been contacted by you in mid-July and you offered him CHEP pallets for $10 each.  He agreed to buy 1,500 pallets.  In three deliveries over two days, 990 pallets were delivered.

10      You went to his premises and Beer made a part-payment of $5,000 cash.  He was later told that the pallets were stolen and he agreed to have them placed on his CHEP account.  CHEP produced issue dockets and other business records for the 58 transactions between CHEP and C&B, which gave details including the names of the transport companies making pick-ups of pallets and the names of the truck drivers. 

11      Forty-two of the transactions involved trucks operated by you or your business and driven by a driver employed by you.  Fourteen of the transactions involved pallets collected by a truck owned and operated by Vince Cordoma and driven by one of his drivers.  Two other transactions involved pallets collected interstate and so did not involve charges. 

12      The truck drivers were all acting on your instructions and as innocent agents, they collected the pallets from CHEP and delivered them as directed by you.  Similarly, there is no evidence implicating Craig McKenzie in the scheme.

Objective gravity of the offending

13      The maximum penalty for theft if 10 years' imprisonment.  The circumstances of this case overall place the offending at a relatively low level, considering the brief duration of three weeks.  The victim suffered loss of pallets to the value of $242,223, a significant sum causing economic and reputational harm as it was put by the prosecution, but it was also the case that the victim was a corporate body and therefore a less vulnerable entity.

14      The evidence of planning and premeditation, with some sophistication, and the use of innocent parties increases the gravity to something like the mid-range of seriousness, as indeed it was submitted by the prosecution, and does place your moral culpability at a higher level.  On the other hand, your personal circumstances do make out a case for leniency and I turn to those matters now.

Personal circumstances and background

15      

You are a 52-year-old single man living in Shepparton.  Since

August last year, you have been working as a forklift driver or yard man at

Plunkett Orchards, Ardmona.  Your past employment was always in the transport industry and you conducted successfully your own transport business for many years. 

16      

You suffered health problems in 2016 and 2017 and lost a major work contract, which together resulted in the collapse of the business.  You reverted to driving trucks including long haul trips interstate, but the

COVID lockdowns reduced your income causing an increase in anxiety, stress and depression.  This led to ceasing truck driving in July 2021.  You then took up new employment, which you had some difficulty obtaining because of the charges against you. 

17      Your early upbringing was unremarkable, growing up in a loving family and with no behavioural or other problems.  You married and remained with your partner for over 20 years.  Your two children are now adults and live independently in Shepparton.  You have a good relationship with them and with your former wife. 

18      

You had a new relationship with Ms Dianne Hutchins which ended around the time of your bankruptcy, but you have remained friends with Ms Hutchins and she continues to help and support you.  You also have the support of several

long-term friends who have provided references.  Each of the three know you very well, both in the field of your employment and more personally.  They speak highly of you as a reliable and trustworthy person, acknowledging that you have been through some hard times following the breakdown of your marriage in 2015 and the impact of the decline of your mental health around that time. 

19      Throughout the years of working, running your business and raising your family, you had no contact with the criminal justice system with no criminogenic links or contacts. 

20      

Your medical history relating to physical ailments over recent years is quite complex.  It begins in 2015 when problems with your right elbow led to surgery in December that year.  Problems with your arm still continues.  Around the same time, a sleeping disorder was diagnosed which appears to have been related to obesity.  In March 2017 you underwent

gastric band surgery with recovery taking place over several months, attended by complications and a further hospital admission.  You were still convalescing when the offending occurred.  This coincided with abnormalities related to cholesterol and iron levels, which had to be treated.  

21      In October 2020, you had surgery for right hand carpal tunnel syndrome, requiring rehabilitation over several months.  In December 2020 you fell from a truck, sustaining a back injury and this led to the end of your truck driving career on medical advice.  By the middle of 2021, you were still experiencing back pain and investigations were undertaken and medications prescribed.  A further workplace fall occurred in December 2021 and treatment for that injury is continuing. 

22      As to the history of the decline in your mental health, this appears to have commenced at the time of the breakdown of your marriage when your business was also in trouble.  You attempted suicide at this time by taking an overdose of medication, but you were discovered by a friend and taken to hospital.  These are distressing details and I include them only to refer to the evidence of the extent of your difficulties at those times. 

23      In April 2016 you made a second attempt on your life, this time by hanging and again you were found by a friend and taken to hospital.  A third attempt was in December 2017, again resulting in hospitalisation for treatment. 

24      

In September 2020 you were seen by Mr Warren Simmons, a consulting psychologist who noted that by then most of your symptoms were reactive, relative to the court case you were facing.  He noted that the offending occurred during a period when you had significant mental health issues, as indicated by the suicide attempts.  At the same time you had the

physical health problems referred to earlier. 

25      In a supplementary report dated 20 October 2020, Mr Simmons explained that low mood such as that you were experiencing at the time of the offending can often result in poor decision-making.  The desperation that may accompany this can lead to suicide attempts and in this state of mind a person might struggle to make appropriate decisions. 

26      It has not been submitted that the relevant principles in the case of Verdins apply in your case in order to moderate your criminality; however, you are a man with no prior history, with a stable background and a good work history, whose life was significantly disrupted by ill health, the breakdown of a long marriage and the collapse of a previously successful business.  It was in this context that the offending occurred, apparently uncharacteristic of you and otherwise unexplained.  It suggests that your prospects of rehabilitation are probably good and you are unlikely to offend again.  

27      

Mr Simmons assessed you again recently and provided an updated report about two weeks ago.  This took into account your bankruptcy which occurred

last year, forced upon you by your indebtedness after being sued for money owed to CHEP as a result of the thefts.  As a consequence, you have lived since then in a boarding house with no cooking facilities and relying on takeaway food which has led to weight gain. 

28      

Your physical ailments as outlined earlier are still causing difficulties, in that you have pain in your legs, elbow and hand suggesting nerve compression.  You have been on WorkCover since November last year and in the care of

Dr Chan, who intends to operate on your back and wrist. 

29      

Mr Simmons described your symptoms at the time of the offending as evidence of a psychiatric disturbance of a marked degree, with a particular concern currently being a further likelihood of attempted harm if depressive symptoms were to worsen.  Mr Simmons considered that the combination of your physical and mental health problems would make your experience of custody more onerous.  You would be likely to continue to experience

chronic pain without recourse in prison to the range of appropriate medications.  You are currently prescribed the antidepressant drug mirtazapine, replacing Lexapro which you were prescribed seven months ago.   

30      

The collapse of your business and the debt owed to CHEP with resulting bankruptcy, combined with a range of quite complex health problems have resulted in a future which understandably might appear grim for you.  You have continued to try to work and to face the challenges ahead of you.  To some extent, you are already paying the price of your offending.  You have also experienced the anxiety of having the charge hanging over your head since you were charged on 22 November 2017.  That is relevant to the factor of delay between then and now, caused in large part by the

pandemic restrictions preventing the hearing of trials.  Delay is a matter I take into account. 

31      

Your plea of guilty is a late plea, but nonetheless you are entitled to a discount on your sentence for having avoided a possibly lengthy trial involving multiple witnesses.  The current backlog of trials in the court owing to the

COVID pandemic is assisted by this plea and you are to be given due credit for that. 

32      The restrictions brought about by the pandemic also add to the burden of imprisonment for any prisoner, with reduced programs being available, the ongoing risk of infection, and the possibility of quarantine and isolation.  In your case, an additional burden would be the physical and mental health problems you suffer as outlined by Mr Simmons in his report.

33      Until very recently you were contesting the charge and, in that context, no indication of remorse has been possible, nor has any indication been expressed more recently.  The absence of remorse would carry more weight if you were a person with a criminal record, because it would possibly undermine your prospects for rehabilitation.  That is not the case and so I make no further comment about that. 

34      

The sentencing submission by the prosecution was that a

combination sentence is within the appropriate range.  Mr Marshall on your behalf, submitted that in all the circumstances, a Community Correction Order with appropriate conditions would meet all necessary sentencing requirements. 

35      

As noted earlier, your prospects for rehabilitation are probably good and that reduces the need for specific deterrence.  There is a high need for

general deterrence, and it follows that the Community Correction Order will be a long one and there will be conditions attached that could be quite onerous, thus replacing any need for imprisonment as a means of deterrence. 

Sentence

36      

You have been assessed as suitable for a Community Correction Order and I make that order.  It will begin today and it will last for three years.  You must perform 100 hours of unpaid community work, which is a modest amount taking into account your physical health problems, and assuming that

light duties will have to be found for you. 

37      

You will also be assessed and treated for your mental health issues, probably by means of liaison with your psychologist, Mr Steer, and monitoring your progress.  Any hours you spend in treatment will be credited against the

work hours.  You must contact by telephone the Corrections office in

Shepparton before 4 pm on 14 April.  

38      

If you had pleaded not guilty, I would have sentenced you to a

four-year community correction order.

39      

Can I check with you first, Mr Nibbs, as to whether there are any other

matters - any ancillary orders?

40      MR NIBBS:  I don't think so, Your Honour.

41      HER HONOUR:  Nothing?  Thank you.  Anything further, Mr Marshall?

42      MR MARSHALL:  No, Your Honour.

43      

HER HONOUR:  The CCO document will need to be emailed to Mr Muir.  

Mr Muir, are you in your solicitor's office or are you at home or somewhere else?

44      OFFENDER:  I'm at work, Your Honour.

45      HER HONOUR:  All right.  In that case, I'm going to leave it to my associate to check on the address to which the document will need to be sent for your signature.  I'll leave the Bench in a moment.  Because you're not here in court, I just need to check one more thing before finishing.  You heard me just now outline the conditions of the community correction order, and when you were assessed, you would have been told in more detail about the core conditions.  Do you recall that?

46      OFFENDER:  Yes, I do, Your Honour.

47      HER HONOUR:  Do you agree to be bound by all those conditions?

48      OFFENDER:  I certainly do, Your Honour.

49      HER HONOUR:  Very well.  So that will be sent to you shortly.  I'll leave the Bench now and my associate will just finalise the address with you.

50      OFFENDER:  Thank you, Your Honour.

- - -