Director of Public Prosecutions v Reed
[2020] VCC 1316
•17 August 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-20-00372
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ALANA REED |
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JUDGE: | HIS HONOUR JUDGE WRAIGHT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 August 2020 | |
DATE OF SENTENCE: | 17 August 2020 | |
CASE MAY BE CITED AS: | DPP v Reed | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1316 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Plea of guilty – One charge of theft of firearm – One charge of theft – Two charges of possession of drug of dependence – Offender stole stepfather’s rifle and ammunition – No prior criminal history – Duress not established as mitigation – Genuine remorse and insight – Very strong prospects of rehabilitation – Significant delay.
Legislation Cited: Crimes Act 1958; Drugs, Poisons and Controlled Substances Act 1981; Sentencing Act 1991.
Cases Cited: Benkic v The Queen [2019] VSCA 34.
Sentence: Community correction order for a period of 2 years together with a fine of $500.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms C Boult | Office of Public Prosecutions |
| For the Accused | Mr R de Vietri | Victoria Legal Aid |
HIS HONOUR:
Introduction
Alana Reed, you have pleaded guilty to the following charges:
· one charge of theft of a firearm contrary to s 75AA of the Crimes Act 1958, which carries a maximum penalty of 1800 penalty units or 15 years imprisonment;
· one charge of theft contrary to s 74 of the Crimes Act 1958, which carries a maximum penalty of 10 years imprisonment (Charge 2); and
· two charges of possession of a drug of dependence contrary to s 73 of the Drugs, Poisons and Controlled Substances Act 1981, (Charge 3 and 4). Charge 3, in this instance, carries a maximum penalty of 30 penalty units and/or one year imprisonment, where the court is satisfied that the offence was not committed for any purpose related to trafficking. Charge 4, in this instance, carries a maximum penalty of 5 penalty units, where the court is satisfied that the offence was committed in relation to a quantity of cannabis that is not more than the small quantity applicable and not related to trafficking.
You have no prior criminal history.
Circumstances of the offending
In early 2017, you and your four children moved into a home at 10 Sunset Rise, Hastings, with your mother Fiona Stuelten, and your stepfather Jacquard Stuelten.
Jacquard Stuelten is the victim of the theft charges. Mr Stuelten is the owner of a 3030 lever action rifle, which was stored in a locked gun safe in the garage at the Hastings property.
Sometime between 16 January 2017 and 17 March 2017, you obtained keys to a safe, which were kept in a drawer beside Mr Stilton's bed. You then used the keys to open the gun safe located in the garage and stole the 30-30 lever action rifle. It is these facts that relate to Charge 1, theft of firearm.
You also stole from Mr Stilton a box of 30-30 ammunition, two boxes of 300 short Winchester Magnum ammunition, 10 boxes of 12 gauge shotgun cartridges and a hunting crossbow. It is these facts that relate to Charge 2, theft.
Your eight year old daughter saw you stealing the items and, sometime after, informed Fiona Stuelten, her grandmother and your mother. Ms Stuelten notified Hastings police station of the theft of the firearm.
Sometime later, Ms Stuelten noticed that you had left your Messenger account open on your computer, and she observed that you were attempting to sell the stolen items to a person named Tommy Boyd, between 15 and 16 January 2017.
On 19 March 2017, you were arrested by police in Pearcedale and transported to Hastings Police Station, where your handbag was searched in your presence. During the search, Detective Senior Constable Brian Whitehead located within your handbag two small plastic bags containing 0.5 grams in total of methylamphetamine and 0.4 grams of cannabis. It is these facts that relate to Charges 3 and 4, possession of a drug of dependence.
You were interviewed at 4.24 pm on the same day and told police, amongst other things, that you were stood over by a person by the name of Steven Carr, because he wanted the gun that was in your stepfather's shed.
You said, that as his request, you both went to the shed to find the gun and located the keys for the shed in your parents' room and that Mr Carr took the gun safe key. You stated that you put the gun and whatever else Mr Carr took in a suitcase. You said that if you dobbed on Mr Carr, he had threatened to hurt your family. You said your eight year old daughter was there when it was happening and you told her to keep playing Minecraft because you didn't want her to have anything to do with Mr Carr.
You admitted you did not have permission to access the firearm and stated you knew Mr Carr also took bullets and the crossbow. You also made admissions to having the methyl amphetamine and cannabis in your handbag.
I was told on the plea that the firearm was recovered, however it had found its way into the hands of two offenders and that, during the recovery the weapon, police were placed in some danger. The crossbow and the ammunition remain unrecovered.
Nature and gravity of the offending
The most serious charge on the indictment is Charge 1, theft of a firearm. It is self evidently a serious charge, as reflected in the maximum penalty of 15 years imprisonment. As was observed recently in the Court of Appeal decision of Benkic v The Queen[1]:
Furthermore, it is clear that the legislature regards the theft of firearms as a particularly serious species of theft. Section 74AA of the Crimes Act 1958, which created the offence of theft of a firearm, was inserted by s.9 of the Firearms Amendment (Trafficking and Other Measures) Act 2015. It prescribes a maximum penalty of 15 years' imprisonment, as opposed to the maximum sentence of 10 years' imprisonment for theft simpliciter, so much reflecting Parliament's view of the seriousness with which the theft of firearms is to be viewed. As the Minster for Police explained in the Second Reading speech of the relevant Bill:
“Finally, the bill will introduce a new theft of a firearm offence into the Crimes Act 1958. The new offence will carry a higher penalty than the offence of theft under s.74 of the Crimes Act, in the recognition that the theft of firearms can increase the illegitimate flow of firearms in the community and lead to very serious criminal activity.”[2]
[1] [2019] VSCA 34.
[2] At [18].
Mr de Vietri, who appeared on your behalf, submitted that pressure was exerted on you by an associate of yours, Steven Carr, who you say was present during the theft and then it was he who instigated the offending. It was also submitted that he made threats against you, which you detail in your record of interview. In short, you say that you were aware that Mr Carr had a reputation of hurting people and that he used that reputation in pressuring you to be involved in the offending, the subject of Charges 1 and 2.
Mr de Vietri submitted that, while you do not rely on the defence of duress, your conduct must be seen in the context of the presence and influence of Mr Carr. As such, he submits that duress exerted on you, by what he referred to as a 'co-offender', in the circumstances presented is able to be used in mitigation. The prosecution opposes the submission and points to a number of inconsistencies in your record of interview that cast doubt on your contentions. The prosecution also points out that, in the days leading up to the offending, you were making enquiries online as to the value of the firearm.
As discussed during the plea hearing, in my view, while your record of interview is very detailed as to the involvement of Mr Carr, he is not a co-accused in this matter and after consideration of all the evidence, the best that can be said is that he assisted you in facilitating the sale or transition of the weapon into the criminal community. It may be that he has more influence than you in the criminal world, but the fact remains that he was an associate of yours and he was at your house in the day following your enquiries as to the value of the weapon. It may also be the case that he has a dark criminal history. But in my view, the evidence does not establish duress as a defence or as mitigation, rather that Mr Carr was the facilitator with some influence over the situation. Nonetheless, you accept criminal responsibility and have pleaded guilty to the offences.
While the theft of the firearm in all the circumstances does not represent the most serious example of the offence, it remains a serious charge. In this instance, the weapon quickly found its way into the hands of two offenders, demonstrating the potential risk to the community. This was an operable gun stolen together with ammunition and, thus, available to be used immediately. Further, as outlined in the prosecution submissions, the search for the weapon culminated in a dangerous recovery by police.
The possession charges speak for themselves however, in relation to both Charges 3 and 4, I accept that as the amounts of the drug in each instance are very small, I formally find that the possession of the particular drug in each instance was not for the purposes of trafficking.
Personal circumstances
You are 31 years of age and were 27 at the time of the offending.
You are the youngest child of a sibship of four. Your mother and father separated when you were young, and you remained in your mother's care.
You have stayed close with one of your sisters, who was a maternal figure for you when you were young. Your brother struggles with drug addiction, and you have little to do with him. You have no contact with your other sister.
You grew up on the Mornington Peninsula and completed Year 11 at Patterson River Secondary College. After leaving school, you began employment with a telemarketing company for a period of two years. You then worked at a supermarket for 12 months until you gave birth to your first child when you were 19 years of age. You separated from the father of that child when your daughter was only months old.
You formed another relationship and had a further three children, now aged six, five and three. That partner was a drug user and you too began using drugs throughout that relationship when you were about 25. That partner tragically died of a drug overdose in 2015. From that point on your drug use escalated.
While your relationship with your mother over the years has been turbulent, she has custody of the four eldest of your children as a result of court orders. You had contact with those children however in recent times the children have expressed a desire to return to your care. Unfortunately, that has resulted in the relationship between you and your mother breaking down and you have had no recent contact with your children or with your mother.
In April 2017, you became pregnant with your fifth child, now aged two. You are uncertain who the father is. However, on this occasion when you discovered you were pregnant, you made a decision to stop using drugs and have remained drug free since. Nonetheless, the Department of Health and Human Services became involved when your son was born. The Department ultimately assessed you as suitable to remain as the carer of your son. While there is an order in relation to the child requiring you to remain drug free and provide drug screens, you demonstrated to the Department that you were, indeed, drug free over a sustained period. As a result, in February this year the Department notified you that they would no longer be involved with your family.
In 2018, you commenced a new relationship with Dylan Enciso, and shortly after, you began living together. You live in a rental property in Coldstream and have done so for the past two years. Mr Enciso owns his own concreting business and works full time. He is financially stable and has taken on the role of a father figure to your young son. In January this year, you gave birth to a daughter with Mr Enciso. Together with your partner you are saving to a buy house and have at this stage, save some $20,000 for that purpose.
Since you have moved away from the Frankston area where you were involved in your previous lifestyle, you have changed your life completely. You do not mix with any of the old associates associated with drug use and clearly you are settled into a stable relationship with a positive future.
In addition to your role as a mother to young children, you have commenced an online course to become a veterinary assistant. Your ultimate goal is to become a veterinary nurse.
References were tendered from your partner, Dylan Enciso and Mr Enciso's mother, Deborah Peryer. Two further character references were tendered from friends. Mr Enciso states that you have been open about your past and he has seen you go from strength to strength with your resolve to continue your rehabilitation. He is of the view that the charges do not reflect the person he knows and, as such, believes they were a product of your influences and lifestyle at the time. The other references speak in a united way as to the significant positive changes the writers have observed in you over the past few years.
A letter was tendered from Amanda Mack, drug and alcohol counsellor with TaskForce. TaskForce is a community organisation that provides counselling and support to people affected by alcohol and other drugs. The letter confirms that you were referred to TaskForce on 1 April 2018, and that you were engaged with the service until August 2019. In that time, you have attended some 21 face-to-face counselling sessions and 40 telephone counselling sessions.
Sentencing considerations
I take into account your plea of guilty which was entered at the committal mention stage. While there was the possibility of you raising the defence of duress, you have nonetheless taken responsibility for the offending and pleaded guilty. Your plea of guilty has saved the court time and expense and has saved witnesses the inconvenience of being required to give evidence. In the circumstances your plea has facilitated the course of justice.
Over and above your plea of guilty, it was submitted on your behalf that you have demonstrated genuine remorse and insight into your offending. In your record of interview, you state that you did not think it was right that you had taken from your stepfather as you had a good relationship with him. You have described your offending as a mistake linked to the lifestyle you had and the type of people you were associating with. It is clear from the way you have demonstrated a complete change since the offending for a sustained period that you have developed real insight. In all the circumstances, I accept that you have also shown a degree of genuine remorse.
I have already addressed the submission in relation to so called 'duress'. As to any mitigatory value to that submission, the best that can be said is that, as a consequence of your lifestyle and drug use at the time, you became associated with people like Mr Carr. I accept that, from your answers in the record of interview, Mr Carr may have been involved in moving the weapon and other items from the house, and in the course of that involvement, he may have exerted some influence or control over you and the process. However, as a result of the finding I have made, the mitigatory value is minimal.
You have no prior convictions and, as already noted, the offending occurred in the context of substance abuse and the associated poor life choices you were making at the time. However, you have been drug free since early 2017 and you have attended drug counselling between April 2018 and August 2019. You are in a stable relationship and you are saving to buy your own home. It is clear that you have made positive choices and have demonstrate a sustained period of stability. You are currently looking after your two young children, aged two, and seven months and have also taken on study to provide you with employment opportunities in the future. In my opinion your prospects of rehabilitation are able to be assessed as very strong.
Ms Boult, who appeared on behalf of the Director of Public Prosecutions, submitted that general deterrence remains a prominent sentencing consideration in relation to Charges 1 and 2. As noted above, theft of a firearm is a serious charge, as in most cases the firearms are destined to be sold illegally within the criminal world. I therefore, accept that the general terms must be reflected in the penalty imposed. As to specific deterrence, given your lack of prior criminal history and the fact that you have left behind the lifestyle you were living at the time, which clearly influenced your behaviour, in my view specific deterrence need not carry weight in the sentencing equation.
The offences occurred between January and March 2017, some three and a half years ago. The delay has been the result of the matter being listed in the Magistrates' Court incorrectly and some other unavoidable delays. In any event, the prosecution accepts that the delay is not attributable to you. As the established authorities note, delay is relevant where in the time between the offending and the determination of the matter the offender rebuilds their lives and does not reoffend, it is a matter that is able to be taken into account. I also take into account the other aspect of delay, which relates to the fact that you have had to carry the burden of this matter being unresolved for a considerable amount of time, again, not attributable to you.
It was submitted on your behalf that in all of the circumstances, despite the serious nature of the offending, a Community Correction Order is able to meet the relevant and applicable sentencing considerations. I had you assessed for such an order and you have been found suitable. Further, because of the drug rehabilitation you have undertaken, together with the fact that you have not used since 2017, the Corrections Officer who accessed formed the view that further drug treatment as part of a Community Correction Order is not warranted.
In my view, a Community Correction Order is able to meet the relevant sentencing considerations in this instance. I also note that the prosecution submitted that a Community Correction Order that contains a punitive element is within range. While all Community Correction Orders are punitive, in my view, there must be an additional specific punitive element as part of the order, which will be an unpaid community work condition.
Sentence
Alana Reed, on Charge 1, theft of a firearm and Charge 2, theft, you will be convicted and placed on a Community Correction Order for a period of two years. In addition to the standard conditions, you will be required to complete 150 hours of community work over the two year period of the order.
In relation to Charge 3, possession of methylamphetamine, and Charge 4, possession of cannabis, you will be convicted and fined an aggregate of $500.
Pursuant to s 6AAA of the Sentencing Act 1991, if not for your plea of guilty, I would have sentenced you to a period of imprisonment of 8 months, followed by a Community Correction Order.
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