Director of Public Prosecutions v Roper

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No CR-20-00182

DIRECTOR OF PUBLIC PROSECUTIONS

MICHAEL ROPER

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JUDGE:	HIS HONOUR JUDGE WRAIGHT
WHERE HELD:	Melbourne
DATE OF HEARING:	24 April 2020
DATE OF SENTENCE:	1 May 2020
CASE MAY BE CITED AS:	DPP v Roper
MEDIUM NEUTRAL CITATION:	[2020] VCC 544

REASONS FOR SENTENCE

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Subject: CRIMINAL LAW

Catchwords: Guilty plea – Two charges of burglary – Two charges of theft of firearm – Two charges of theft – One charge of possession of a drug of dependence – One charge of possession of a traffickable quantity of firearms – Extensive criminal history – Circumstances surrounding COVID-19 pandemic taken into account.
Legislation Cited: Crimes Act 1958; Drugs Poisons and Controlled Substances Act 1981; Firearms Act 1996; Firearms Amendment (Trafficking and Other Measures) Act 2015; Sentencing Act 1991.

Cases Cited: Benkic v The Queen [2019] VSCA 34.

Sentence: Total effective sentence of 2 years imprisonment, with a non-parole period of 18 months, and a $200 fine.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr A Sprague	Office of Public Prosecutions
For the Accused	Mr A Chernok	Valos Black & Associates

HIS HONOUR:

Introduction

Michael Roper, you have pleaded guilty to the following charges:
· Two charges of burglary contrary to s 76 of the Crimes Act 1958, which carries a maximum penalty of 10 years imprisonment on each charge (Charges 1 and 4);
· Two charges of theft of a firearm contrary to s 74AA of the Crimes Act 1958, which carries a maximum penalty of 15 years imprisonment on each charge (Charges 2 and 5);
· Two charges of theft contrary to s 74(1) of the Crimes Act 1958, which carries a maximum penalty of 10 years imprisonment on each charge (Charges 3 and 6);
· One charge of possession of a drug of dependence contrary to s 73 of the Drugs Poisons and Controlled Substances Act 1981 which in this instance carries a maximum penalty of five years imprisonment (Charge 7); and
· One charge of possession of a traffickable quantity of firearms contrary to s 7C of the Firearms Act 1996 which carries a maximum penalty of 10 years imprisonment (Charge 8).
You have also pleaded guilty to two related summary charges:
· Charge 14 - driving whilst disqualified contrary to s 30 of the Road Safety Act 1986, which carries a maximum penalty of two years imprisonment; and
· Charge 12 - possess cartridge ammunition without licence or permit contrary to s 124 of the Firearms Act 1996 which carries a maximum penalty of 40 penalty units.
You have also admitted your prior criminal record.

Circumstances of the offending

A prosecution opening was tendered on the plea and may be summarised as follows:
On 8 October 2019, between approximately 9am and 1pm, you attended a property at Kialla West in Victoria. The property has a large shed in the backyard which contained a firearm safe with a combination lock and five steel lockers which were also used to store firearms.
You initially attempted to gain entry to the house via a side window. You damaged the window but were unable to gain entry.
You then forced the front door of the house open by kicking it in, and entered the property. It is these facts that relate to Charge 1, burglary.
You then searched the house for valuables and stole various items of jewellery from the master bedroom valued at $4000. It is these facts that relate to Charge 3, theft.
You then forced entry to the large shed in the backyard of the property via a side door using a pipe wrench. These facts form part of Charge 1.
After entering the shed, you forced entry to one of the steel lockers by removing the padlock and latch and stole two firearms, being a Bettinsoli 12 gauge shotgun in a black plastic case and a Stevens 20 gauge shotgun that was free-standing. It is these facts that relate to Charge 2, theft of firearms.
You then left the property and travelled by foot along a channel running adjacent to the property towards your car that you had parked at the Kialla West football oval.
While you were on the way to your car, you dropped the Stevens 20 gauge shotgun. That shotgun was located by one of the owners of the Kialla West property on the channel bank that evening, sometime before 6:50pm.

In the course of investigating the burglary and theft matters in relation to the Kialla West property, Victoria Police obtained CCTV footage which depicts you driving a motor vehicle and carrying a number of items into a property at Briar Hill, Victoria on 9 October 2019. On 31 January 2019, at the Shepparton Magistrates' Court, you were disqualified from driving for a period of two years. It is these facts that relate to summary Charge 14, driving whilst disqualified.
On 16 October 2019, sometime prior to 11am, you entered a residential property in Eltham, Victoria via the rear door. It is these facts that relate to Charge 4, burglary.
You searched the house for valuables and stole various items of jewellery valued at $300. It is these facts that relate to Charge 6, theft.
You also forced open a metal box in the wardrobe of a study which was used to store firearms, and stole the following:
·a single action bolt action firearm;
·a Slavia air rifle;
·a Sportsco model 81 single barrel 12 gauge bolt action rifle;
·a Henry Action Winchester single barrel rifle;
·a Birmingham Small Arms Co. centre fire 303 British bolt action rifle; and
·a Sterling .22 rimfire bolt action rifle.

It is these facts that relate to Charge 5, theft of firearms.

You then left the property in a black Audi taking the stolen property with you to an address in Briar Hill, Victoria.
On 16 October 2019 at 11.36am, police attended Unit 5, 2 Fernside Avenue, Briar Hill and located the following items in the building and in the black Audi:
·three Ziploc bags of methamphetamine with a total weight of 18.9 grams (15.84 grams pure), located in the Audi;
·a Bettinsoli 12 gauge shotgun which was stolen from the Kialla West property. The firearm was found behind an air vent in the hallway in an altered state, having been sawn off;
·the six firearms stolen from the Eltham property;
·some of the jewellery stolen from the Kialla West property; and
·numerous pieces of miscellaneous firearm ammunition.

It is these facts that relate to Charge 7, possession of a drug of dependence, Charge 8, possession of a traffickable quantity of firearms and summary Charge 12, possess cartridge ammunition without licence or permit.

You were arrested, interviewed the same day and exercised your right to silence. You were charged and remanded to appear before the Magistrates' Court.

Nature and gravity of the offending

It is self-evident that an assessment of your offending as a whole which involved breaking into two residential properties, stealing of personal items and a total of eight firearms, together with the related offences, amounts to a serious episode of offending over a short period of time.
Theft of firearms and possession of traffickable quantities of firearms are also recognised by Parliament as serious offences which is reflected in the maximum penalties of 15 and 10 years respectively.
While you do not have prior criminal history of offending related to firearms (save for a recent prior for possession of ammunition), you do have an extensive criminal history involving dishonesty offences, including a number of prior convictions for burglary, being in possession of stolen property and dealing with property suspected of being the proceeds of crime.
You stated to your psychologist that you were looking for firearms to kill yourself, while at the same time you say the burglaries were to support your drug habit. Either way, you committed two burglaries both of which resulted in you stealing a number of firearms which, in combination gave rise to possession of a traffickable quantity of firearms, a traffickable quantity being two or more.
While clearly you did not use any of the firearms to harm yourself, by your own admission it can be assumed that you were seeking to sell the firearms in order to fuel your drug habit. In that regard, the potential harm that may result from the selling of the stolen firearms on the black market should not be underestimated.
At the plea hearing reference was made to the Court of Appeal decision of Benkic v The Queen[1], a case not dissimilar in its facts which included burglary and theft of six firearms. There the court referred to the change in legislation in relation to the introduction of the offence of theft of a firearm stating:[2]

'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 Minister for Police explained in the Second Reading 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 recognition that the theft of firearms can increase the illegitimate flow of firearms in the community and lead to very serious criminal activity."'
[1] [2019] VSCA 34.
[2] At [18].
In the circumstances, in my view, the charges of theft of firearms represent a relatively serious example of the offence. As to the other charges of burglary and theft, while they form the backdrop to the firearms charge, they too are serious offences as they involve the invasion of private homes and the theft of personal items.
While no victim impact statements were tendered, there can be no doubt that when a person comes home to their private residence and discovers that someone has broken into their home and stolen their personal property, it can be a disturbing experience. In this instance, the prosecution made reference at the plea to the victims’ statements in this regard as to their reactions upon discovering the burglaries.
As to the charge of possession of a drug of dependence, while not of a high order it is still possession of an amount of methylamphetamine, being 18.9 grams (or 15.84 grams pure), which is well over the traffickable quantity of 3 grams. However, I accept that this charge is reflective of your long term drug addiction and there is no other evidence of commerciality associated with the charge.
Personal circumstances
You are currently 31 years of age.
You are an only child and your parents separated prior to your birth. You remained with your mother, Jeanette Roper, however you have had no contact with your father. Ms Roper provided a letter to the Court stating that you had been living with her from January 2019 until the time you were arrested on these matters.
You have a younger half brother on your mother's side who is aged 20. You have three half siblings on your father's side but have no contact with them.
You grew up in the Greensborough and Diamond Creek areas and attended local schools. You had difficulty at school and only in relatively recent times you have being diagnosed with ADHD which to some extent may have explained your difficulties in your early years.
You have conveyed to counsellors and psychologists that you were a victim of sexual assault perpetrated on you by a teenage neighbour on two separate occasions. You also disclosed that you were exposed to two violent stepfathers who physically assaulted both you and your mother.
After leaving school in Year 9, you completed one year of an apprenticeship in concrete construction. You moved to Wollongong and worked in scaffolding for a few months before returning to the concreting industry. You have worked in various other employment, however, you estimate that since leaving school, you have been in employment about 50 per cent of the time, predominantly in the concreting industry.
You were in a relationship with Kylie Sutton for a number of years and you have two daughters from that relationship, aged 10 and seven, which are in the care of your paternal grandmother. The Department of Health and Human Services have been involved with the family for some time and the children have not been constantly in your care or your partner's care.
You have an extensive criminal history commencing in 2008. Your previous offending is largely dishonesty and drug-related, however, there are number of driving offences and injury charges. You have received prison sentences on numerous occasions between 2008 and 2019 for offending not dissimilar to the charges you currently face.
Upon your last release from custody in October 2018, you attended Odyssey House and remained there until February 2019. You completed level one of that course and were released on a community correction order. You stated that after the completion of level one of the course you lived with your mother and started a concreting business. You did not relapse into drug use until September 2019 shortly before your involvement in these offences. You had a partner in that business which you sold to him for $5000, the money ultimately used to purchase drugs. You stated to your psychologist that you attempted suicide by overdose in September 2019 and say that the theft of the firearms was also for the purpose of suicide.
Two reports prepared by Carla Lechner, clinical psychologist, were filed with the court and tendered on the plea dated 30 November 2018 and 30 March 2020 respectively. A historical psychological report prepared by Jeffrey Cummins and dated 29 April 2015 was also tendered. Each of the reports provide detailed information as to your background and psychological progress and I have taken the contents of each report into account.
Ms Lechner assessed you on both occasions by conducting psychometric tests. She is of the view that you currently are evidencing a moderate level of depression and anxiety and that you continue to experience post-trauma symptoms as result of an unresolved post traumatic stress disorder which you are finding easier to manage as result of counselling. Unsurprisingly, she finds that you suffer from a stimulant use disorder which is in remission as a result of you being in a controlled environment.
A letter was also tendered from Indrani Barua, drug and alcohol clinician, which confirms your involvement in individual counselling whilst you have been at the Metropolitan Remand Centre. She notes that you have participated in 10 sessions to date and that the counselling sessions are provided on an ongoing basis. However, she also notes that due to the COVID-19 pandemic, it is unknown whether the services provided will continue in the prison.
As noted, your mother prepared a letter for the court and confirms that in the time that you were living with her from January 2019, you were settled, you were drug free and you were working. However, she notes that as time went on you began to deteriorate and that there were matters raised with your psychologist that were affecting you. She provides first-hand evidence of how the lockdown as result of the COVID-19 pandemic has affected her ability to keep in contact with you. She is unable to visit you and phone calls have become less frequent as result of lockdowns in the prison system. Nonetheless, she continues to offer you support in order to overcome the difficulties you continue to struggle with.
You wrote a letter to the Court which was tendered on the plea, where you speak about your feelings and the difficulties that you have been struggling with since childhood. You state that for the first time in your life you have come to the realisation that you cannot keep going through life in the manner that you have so far. You express the desire to be a proper father to your children and that they provide a motivation to you to continue your rehabilitation. While the letter does not reflect any remorse in relation to the offences currently before the court, it does demonstrate a level of insight in relation to the matters that have led to your drug problems and ultimately, your offending lifestyle.
Sentencing considerations
Mr Chernok who appeared on your behalf conceded that given the nature of the offending and your prior history, deterrence, denunciation and just punishment must play a role in the sentencing consideration. Mr Sprague who appeared on behalf the Director of Public Prosecutions concurred with that submission, noting that general deterrence and denunciation of your conduct should assume particular importance in cases such as this.
In an insightful plea, Mr Chernok submitted that despite the serious nature of the offending and your significant prior history, there are number of matters that should be taken into account in your favour. First and foremost is your plea of guilty which the prosecution conceded was entered at the committal mention stage and therefore at an early time. Your plea of guilty has avoided the need for a trial thereby saving court time and expense. Thus, in all the circumstances you are entitled to have your plea taken into account in your favour as a plea entered at the earliest opportunity which as a result, has facilitated the course of justice.
It was submitted on your behalf that your plea is also indicative of there being a 'significant' level of remorse. However, in my view, there is little evidence to support that submission. What is relied on is a comment you made to Ms Lechner where she states, 'whilst he is his regretful for his actions, Mr Roper has now gained sufficient perspective to understand that imprisonment has saved his life.'
A plea of guilty may be indicative of remorse but it is not remorse in itself and there must be evidence that supports the contention of a demonstration of genuine remorse. Here, as noted in the letter that you provided to the court, there is nothing that demonstrates the effect your crimes have had on the victims. Further, there can be no doubt that even on your own admission you were seeking to sell the weapons into the community which had the potential to wreak havoc if those weapons fell into the wrong hands. There is no evidence of an appreciation of these matters in any of the materials tendered in relation to these specific offences.
That said, I note that in the first report by Carla Lechner, which was in relation to other burglary and theft charges, you stated on that occasion that you felt sorry for the victims, for taking their possessions that they had worked hard for.
What does seem to come through in your personal letter and the psychological reports, is that you are beginning to gain genuine insight into the reasons behind your drug use and your consequent criminal behaviour, even if the process is difficult and clearly has had setbacks. As such, in my view, you have the capacity to appreciate the consequences of your conduct and have commenced on that pathway which of course is also relevant to your rehabilitation.
As noted, you have an extensive criminal history and it is conceded by your counsel that specific deterrence must play a prominent role in the sentencing discretion. You have been given a number of opportunities through community based dispositions which have until now failed to put a halt to your offending behaviour, which has continued since 2008.
Mr Chernok submitted that Verdins principles are enlivened in this case. However, as I understand the submission, he does not rely on your identified conditions as being of such a level to moderate general deterrence or reduce your moral culpability. You admit that the need to fuel your drug addiction was a motivation for your conduct and as such, while that may provide an explanation, it does not mitigate your offending. I do accept however that your troubled history and identified depression and trauma, will make life for you more difficult in prison and thus, that aspect of Verdins has application.

As to your prospects of rehabilitation, it was submitted that in all the circumstances your prospects can be assessed as 'fair'. The prosecution submits that the better phrase is that the court should be 'guarded' about your prospects of rehabilitation. Whatever phrase is used, it is clear that given your long term drug problem and your long criminal history together with the fact that other attempts have failed, it is difficult to assess your prospects of rehabilitation positively. Nonetheless, as already indicated, it would seem that you are beginning to gain genuine insight into the difficulties that underlie your continued relapse into drug use and criminal behaviour.
Finally, I take into account the current circumstances surrounding the COVID‑19 pandemic. From information provided by Corrections Victoria, it is clear that personal visits to prison have been suspended, there has been a reduction of services and programs, and prisoners are experiencing increased lockdown periods. Those circumstances cause additional stress for prisoners and their families and also affect the programs and supports in prison designed to assist in rehabilitation and transition into the community. In my view, applying these matters to your specific personal circumstances, allows for a discount in your sentence.
Mr Chernok submitted that once presentence detention has been taken into account, a combination sentence pursuant to s 44 of the Sentencing Act 1991 is open and able to address the relevant and applicable sentencing considerations. Mr Sprague submitted that given the serious nature of the offences, your extensive criminal history and your poor track record in relation to community based dispositions, a head sentence with a non-parole period is the only available sentencing disposition.
I had you assessed for a community correction order and while you have been assessed as suitable, I have in all the circumstances formed the view that a head sentence with a non-parole period is the most appropriate disposition that is able to meet the relevant sentencing considerations while giving you the best opportunity to continue your rehabilitation.
Sentence
Mr Roper, would you please stand.
Michael Roper, on Charges 1 and 4, burglary, you will be convicted and sentenced to 12 months imprisonment on each charge.
On Charges 2 and 5, theft of firearms, you will be convicted and sentenced to 18 months imprisonment on each charge. Charge 5 will be the base charge.
On Charges 3 and 6, theft of jewellery, you will be convicted and sentenced to 3 months imprisonment on each charge.
On Charge 7, possession of a drug of dependence, you will be convicted and sentenced to 2 months imprisonment.
On Charge 8, possession of a traffickable quantity of firearms, you will be convicted and sentenced to 9 months imprisonment.
On Summary Charge 12, possession of cartridge ammunition, you will be convicted and fined $200.
On Summary Charge 14, drive whilst disqualified, you will be convicted and sentenced to 2 months imprisonment.
I direct that 6 months of Charge 2 be served cumulatively on Charge 5 which makes for a total effective sentence of 2 years imprisonment. I direct that you serve 18 months before becoming eligible for parole.
Pursuant to s 18 of the Sentencing Act 1991, I declare that 198 days be reckoned as the period of imprisonment already served under the sentence I have imposed. That does not include today.
As to the driving whilst disqualified charge, in the circumstances, I do not propose to make any order in relation to your licence.
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 2 years and 9 months imprisonment with a non-parole period of 2 years.
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[2020] VCC 544

1 May 2020