Director of Public Prosecutions v Ross

[2024] VCC 1301

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

CR-23-02156

DIRECTOR OF PUBLIC PROSECUTIONS

v

LUKE ROSS

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JUDGE:	HER HONOUR JUDGE BLAIR
WHERE HELD:	Melbourne
DATE OF HEARING:	3 June, 19 June, & 16 August 2024
DATE OF SENTENCE:	22 August 2024
CASE MAY BE CITED AS:	DPP v Ross
MEDIUM NEUTRAL CITATION:	[2024] VCC 1301

REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – Sentence

Catchwords:              Theft – theft of a firearm – unauthorised possession of a trafficable quantity of firearms – handling stolen goods – mild intellectual disability

Legislation Cited:      Sentencing Act 1991 (Vic)

Cases Cited:Benkic v The Queen [2019] VSCA 34; Muldrock v The Queen [2011] HCA 39; DPP v Brown [2022] VCC 1513; DPP v Fehring [2021] VCC 1699; DPP v Hope [2020] VCC 1191; Boulton v The Queen [1] [2014] VSCA 342

Sentence:                  Total effective sentence of 15 months imprisonment combined with a Community Correction Order of 12 months with a Justice Plan

442 days declared served by way of pre-sentence detention

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr L. Crosbie SIH & plea Ms C. Dunn Sentence	Office of Public Prosecutions
For the Accused	Mr D. McGlone	Adrian Paull Criminal Lawyers

HER HONOUR:

1Luke Ross, on 19 June 2024 you pleaded guilty on indictment P11255806.1 to one charge of theft, one charge of theft of a firearm, one charge of unauthorised possession of a trafficable quantity of firearms and one charge of handling stolen goods. Charge 2 (theft of firearm) is a rolled up charge, as is the charge of handling stolen goods.

2Your plea occurred following acceptance of a sentence indication I gave on 3 June 2024. On that occasion, I indicated that I would impose a combination sentence of a term of imprisonment not exceeding 15 months and a Community Correction Order for a period of 12 months.

3On the plea hearing date, I ordered a Justice Plan and a Corrections pre-sentence report be provided to the court.

Circumstances of offending

4The details of your offending were set out in a document entitled, ‘Agreed Facts for Sentence Indication Hearing’. This same document was relied upon at your plea hearing and tendered and marked as Exhibit A. What follows is a summary of that document.

5At the time of the offending, you were living between several addresses in the Ararat area, including 35 High Street.

6At approximately 1.10 am on 24 April 2023, you attended Ararat Mitre 10 store. You were in company with an unidentified male co-offender. To gain access to the property you cut open a wire fence at the rear of the property and forced open the lower section of a rear roller door. In the process, a section of metal shelving collapsed and fell to the ground dislodging several boxes.

7You and your co-offender took a number of power tools and then left through the damaged roller door. The items included several impacts wrenches, a grinder and associated items as listed in Charge 1 on the indictment.

8CCTV footage from the premises showed you wearing a dark coloured hooded jumper, jackaroo trade-style trousers and work boots. The unidentified co-offender was wearing a light coloured ‘Caterpillar’ brand hooded jumper and gumboot type boots.

9Police attended the store later that morning and identified partial shoe impressions left near the roller door and on a dislodged box. One impression was later identified as belonging to an ‘Ox Nubuck’ work boot or similar. Call charge records identified that your phone utilised the Ararat exchange at the time of the burglary and the theft. On 8 June 2023 the stolen items were recovered at 35 High Street, Ararat. You had placed the items there about two days prior.

10On the morning of 7 May 2023, Dermot Bazeley visited his property located near Willaura. Mr Bazeley normally works and lives in Darlington, New South Wales and visits the property on weekends.

11He found the backdoor wide open and the front door had been damaged. Inside Bazeley found his ammunition box was open and all the ammunition was gone. He then checked his gun safe and found one of the doors wide open and all six firearms were missing. The gun safe was secured with a padlock which was on the floor and appeared to have been cut.

12The following firearms were missing: Ruger 220 swift, worth $4,000; a Browning under/over shotgun, worth $2,000; a Remington 22 Rimfire, worth $1,200; an Anschutz 22 Hornet, worth $1,500; a Remington 204 Ruger, worth $2,000 and a Ruger 257 Roberts, worth $2,000.

13Mr Bazeley contacted 000 and police attended the property. Police identified and photographed shoe impressions left in the driveway. The impressions were identified as belonging to a Redback boot outsole and an Ox Nubuck work boot outsole.

14At 7.50 am on the morning of 7 June 2023, police observed a white Ford Courier utility Registration AD53LZ parked on the grass opposite 35 High Street, Ararat. Enquiries revealed that the vehicle had been stolen several days earlier from New South Wales.

15The officers returned at around 9 am and initially found that the vehicle was no longer parked in the same place, however shortly afterwards they observed you driving the vehicle. You spoke with them briefly through the driver's window and then drove off at a fast rate of speed.

16At 5.20 pm that same day, police became aware that the vehicle had been abandoned on Warrayatkin Road, Ararat after impacting a tree.

17The car was seized and located in the car were various items including an orange and black coloured 4WD Kings winch and three cattle prods (Gallagher and McGrath brands). These items belonged to Adam Stevens and were stolen from a property in Burrumbeet Road, Willaura North between 6-7 June 2023.

18Also located within the rear tray of the vehicle was a Stihl chainsaw model MS180 which belonged to Geoffrey LAIDLAW and was stolen from his property in Langi Logan Road, Langi Logan in the early hours of 7 June 2023.

19In the afternoon of 7 June 2023, police conducted a search of an address in Campbell Street, Ararat, where you had stayed. They located and seized a pair of work type tradie pants, a pair of Ox Nubuck work boots and a pair of black gumboots.

20Around 10 am the following day, 8 June 2023, a search warrant was executed at 35 High Street West, Ararat. You were located lying on a bed in a front bedroom. You were arrested. Police also located your Apple iPhone.

21About an hour later you participated in a record of interview at Ararat Police Station in which you denied knowledge of the offending.

22At around 11.30 am, Covert Operative Number 368 known as ‘Jai’ was placed by police with you in the Ararat Police Cells. During a conversation with Jai, you admitted to stealing the firearms the subject of Charges 2 and 3.

Nature and gravity of offending

23The most serious and concerning of the charges for which you are to be sentenced are Charges 2 and 3, being the theft of firearms and possession of a trafficable quantity of firearms. The theft of firearms charge is a rolled up charge which further elevates its seriousness.

24The courts have repeatedly acknowledged the harm that flows from the unlawful distribution and possession of firearms in the community. The Court of Appeal in Benkic v The Queen described the theft of firearms to be a ‘particularly serious species of the offence of theft’ and noted this is reflected in the higher maximum sentence of 15 years, which has been designated by Parliament.[1]

[1] Benkic v The Queen [2019] VSCA 34.

25I agree with the prosecution’s submission that concerning aspects of these charges are the number of firearms taken, that the firearms were functional and that currently only one of the firearms has been recovered. In your case I do not find there is sufficient evidence that would allow me to make a finding that you possessed the firearms in the context of ongoing criminal activity such as to provide security or as a means of enforcement. In my assessment the theft of firearms in your case was opportunistic and their sale was financially motivated.

26The charges relating to theft of the power tools and handling stolen goods are less serious, though still involve items of not insignificant value. Whilst I can only sentence you on the basis that you have pleaded to theft, the general circumstances of that offending remain relevant considerations, including that it occurred in company and involved the use of force to break into a commercial premises. Though some effort was required to obtain the items, there is no evidence to suggest a significant degree of pre-planning or sophistication.  Both of these offences are routinely dealt with in the Magistrates Court jurisdiction.

Personal circumstances

27You are currently 30 years old and you were 28 years old at the time of the offending.

28You were born in Horsham and raised in the Ararat area. Your parents separated when you were four years old and you grew up with your mother and younger brother. You also have an elder sister.

29You did not particularly enjoy school as you were ‘picked on’ by other students. From a young age you had behavioural and learning difficulties. You had particular difficulties with literacy and eventually you received an integration aid. You repeated several grades at school.

30You left school in Year 8 and worked for a brief period shearing sheep. You report no further employment history. When in the community you receive a Disability Support Pension.

31You began using cannabis around age 15, which became a long term daily habit that continued for several years. You report using ice from around age 16-17 which progressed to a daily habit which has persisted. During the CCO suitability assessment you reported that in the community you used ice most days in varying quantities. You do not report any issues with excessive alcohol consumption.

32You have an extensive criminal history dating back over 10 years, including a number of relevant prior convictions for dishonesty offending. Aside from the possession of ammunition without a licence, you do not have a prior history of firearms related offences. For your offending, you have received numerous terms of imprisonment, as well as community-based dispositions. You have received five Community Correction Orders, four of which included a Justice Plan condition.

33

Your present time on remand has been your longest period of time in custody. At the time of the offending, you were living transiently, as you have done frequently in the past. At least some of the time you were living with your cousin, Ms Young, and her partner and children when they were still living in Ararat. You consider

Ms Young to be a significant support and intend to reside with her and her family, who now live in Stawell, upon your release.

34The rest of your family is generally supportive and you have had contact with your mother and siblings by phone from custody. Your mother resides in Maryborough and your father passed away about four years ago.

35You report having an interest in working as a shearer again upon release. You have completed vocational courses in custody, including traffic management and banking courses to help you with your finances, and at the time of the Sentence Indication Hearing you had signed up for further courses.

36In seeking a sentence indication, your counsel provided a neuropsychological report authored by Ms Catherine Prado. This report was completed in January 2021 in relation to other criminal matters, nonetheless the findings in relation to your intellectual functioning are still relevant.

37Ms Prado assessed you to have a full-scale IQ of 65, which places you in the ‘extremely low range’ and is sufficient for a diagnosis of a mild intellectual disability. It was noted in Ms Prado’s report that you had already received this diagnosis in primary school. You have also been placed on several Justice Plans since 2012, a pre-condition of those orders being a diagnosed intellectual disability.

38Ms Prado explained that cognitive testing indicates that you have ‘longstanding’ and ‘significant cognitive limitations across all domains of cognitive functioning’. In her opinion, the commencement of heavy drug use since adolescence may have had some impact on your cognitive development, but overall the origins of your intellectual disability are not clear.

39In her view, when substance affected, your issues with decision making, impulse control and problem solving, which stem from your intellectual disability, are likely to be compounded. At the time of that report Ms Prado considered that you met the criteria for Stimulant Use Disorder (amphetamines) and Cannabis Use Disorder, both in remission due to the custodial environment.

40Clearly your reduced intellectual functioning has adversely impacted you throughout your life. I consider the findings of Ms Prado as to your impaired functioning relevant in a general way to the sentencing process.

Plea of guilty

41In sentencing you I take into account the utilitarian value of your plea of guilty. In my view it can be characterised as an early plea not withstanding that it occurred after a contested committal hearing. It seems agreed between the parties that there were legitimate evidentiary issues to explore in that hearing and subsequent hearings and negotiations. This is reflected in the resolution of charges you have now pleaded to.

42Your plea of guilty has spared the resources and time involved in running a trial, as well as the need for witnesses to further give evidence. I have reflected these benefits in a significant reduction in your sentence.

Sentencing principles

43The basic purposes for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community.

44Particularly given the seriousness of the firearms charges, general deterrence, denunciation and community protection are all highly relevant sentencing considerations. In light of your criminal history, specific deterrence would also ordinarily carry significant weight.

45I accept the submissions of your counsel that your intellectual disability enlivens the principles in Muldrock.[2] Specifically, that general deterrence and specific deterrence should be somewhat moderated in your case due to your reduced intellectual functioning. The report of Ms Prado makes clear that your intellectual disability significantly impacts various crucial areas of functioning, including problem solving, impulse control and consequential thinking. I have therefore placed reduced weight on the principles of general and specific deterrence in the formulation of your sentence.

[2] Muldrock v The Queen [2011] HCA 39.

Rehabilitation

46In terms of your prospects of rehabilitation, I agree with the submission of the prosecution that they can only be viewed as guarded considering your prior history and non-compliance with previous community-based orders.

47

Your counsel, Mr McGlone, also conceded that your history reflects fairly poorly at least on your capacity to complete a further Community Correction Order.

Mr McGlone submitted that your offending and poor compliance likely stems from a combination of your substance use, negative peers and lack of employment and stable housing. Each of these factors are influenced and compounded by the impacts of your intellectual disability.

48He submitted that your proposed move to Stawell upon release to live with pro-social, supportive family members, in combination with the prospect of NDIS support, could be the positive change needed to facilitate your rehabilitation. He understood that you had NDIS funding in place prior to your remand but that the plan had not been actioned. This appears to be confirmed by the Disability Justice report which confirms you have been in contact with an NDIS support worker and that Disability Justice would be able to work alongside NDIS supports in the community.

49Ms Prado opined that you would require substantial support in the community to reduce recidivism. This included drug abuse treatment and potentially mental health support to assist in developing healthy strategies to cope with anger, stress and interpersonal conflict. These interventions would need to be modified to the needs of your intellectual disability.

50I accept that on the material available there are some limitations in terms of evidence of remorse or insight into the offending. Ms Prado did not have the opportunity to discuss the current offending with you, nonetheless what she outlined in her report about your extensive cognitive limitations in my view encourages caution when using such comments or a lack thereof to assess your remorse. In particular, she notes your difficulties with abstract and consequential thinking, as well as general limitations in people with intellectual disabilities in verbalising their emotional state.

51Ultimately, I have decided a combination penalty is appropriate in your case. The term of imprisonment I intend to impose will serve to appropriately punish you and the Correction Order and Justice Plan to provide for your ongoing support and rehabilitation in the community. In my view it is in both your interests and those of the community that you receive such support to address the issues leading to your offending such as your drug use, lack of employment and lack of a pro-social network. In that way I intend to satisfy the need to protect the community.

52It is positive that you have taken steps to increase your job opportunities in custody through vocational courses. You also have some insight into the influence of negative peers and the lack of supports in the Ararat area. This will be addressed to some extent by moving to Stawell where Ms Young is now located. Ms Young has shown her support by attending your hearings remotely.

Current sentencing practices

53Mr Crosbie for the prosecution, provided a useful summary of several comparable cases in relation to the theft of firearms and possession of a trafficable quantity of firearms.[3] I have been greatly assisted by the provision of these cases and have had regard to the general principles they provide. I have also had regard to the sentencing statistics for each of these offences, taking into account the obvious limitations with such statistics. The most common penalty imposed by the courts for each of these offences is a term of imprisonment of variable length. Ultimately, I must sentence you for your offending and circumstances of your particular case. I do however, take into account current sentencing practices as one of the factors to which I must have regard in the sentencing synthesis.

[3] DPP v Brown [2022] VCC 1513; DPP v Fehring [2021] VCC 1699; DPP v Hope [2020] VCC 1191; Benkic v The Queen [2019] VSCA 34.

54Further, I take into account the sentencing guidelines referred to in s 5 of the Sentencing Act,[4] where relevant in your case. Ultimately the sentencing exercise requires that I balance all relevant factors and make a judgment as to the appropriate sentence, as I said, in the circumstances of your particular case.

[4] Sentencing Act 1991 (Vic) s 5.

55Totality is another very important sentencing consideration in your case. I consider that there is significant overlap in the charges of theft of firearms and possession of a trafficable quantity of firearms. Further, I consider your offending is part of a series of offending having occurred in a relatively confined period and location.

56The principles of proportionality and parsimony are also important considerations. Proportionality requires that I impose a sentence proportionate to the gravity of the offence considered in light of the circumstances, including the maximum statutory penalty, the degree of harm caused to the victims, the method of committing the offence and your culpability. Parsimony requires that my sentence should be no more severe than is necessary to achieve the sentencing purposes.

57As indicated I have had you assessed for your suitability for a community correction order and a Justice Plan. You have been assessed as an unsuitable candidate for a corrections order but suitable for a Justice Plan. Notwithstanding your unsuitable assessment, it is my view the appropriate sentence in your case is the imposition of a penalty involving imprisonment and a Community Correction Order with a Justice Plan. In coming to this conclusion, I am mindful of the guidance given by the Court of Appeal in Boulton v The Queen,[5] in particular, that a community correction order is a serious penalty that can meet the sentencing needs of general deterrence and punishment whilst providing for the rehabilitation of an offender.

[5] [2014] VSCA 342.

58Mr Ross, you are convicted of each of the offences before the court and you are sentenced as follows; in relation to Charge 2, the theft of a firearm, you are sentenced to 12 months' imprisonment.

59In relation to Charge 3, of possession of a trafficable quantity of firearms, you are sentenced to 12 months' imprisonment.

60I order that three months of the sentence on Charge 3 be served cumulatively on Charge 2. This equates to a total effective sentence of 15 months' imprisonment. In relation to the remaining charges of theft and handling stolen goods you are ordered to perform a 12 month community correction order.

61The conditions of this Community Correction Order include that you must:

(a)   Submit for assessment and treatment for drug abuse;

(b)   That you comply with the conditions of the Justice Plan;

(c)   And that you attend for judicial monitoring, so I want you to come back and see me in four months' time.

62The judicial monitoring can be done via Webex and if necessary you can appear at a Corrections office with your corrections officer present. The date I propose for this is 9.30 am on the 17th of December 2024.

63In addition to the conditions that I have imposed, there are standard conditions you must comply with. First and foremost, you must not commit an offence punishable by imprisonment over the next 12 months. If you do, you will breach the order. You must comply with the conditions I have imposed and the standard conditions of a CCO. If you do not comply you will breach the order. If you breach the order, you will be brought back before me, and I will likely have to resentence you. That could involve sending you back to gaol.

64You must report within two working days of your release to Ballarat Community Correctional Services.

65You are required to advise your supervising Corrections Office of any change of address where you are living or working within two clear working days. And it is a term of all Community Correction Orders that you must submit to visits as directed and obey the instructions and directions of the Community Corrections and you cannot leave the State of Victoria without prior permission.

66Mr Ross, I can only place you on a Community Correction Order if you agree – so firstly, do you understand what is involved?

67OFFENDER: Yeah.

68HER HONOUR: Do you understand the conditions?

69OFFENDER: Yes.

70HER HONOUR: And do you agree to doing the order?

71OFFENDER: Yep.

72HER HONOUR: I reckon that you have served 442 days by way of pre-sentence detention, so that time is reckoned as served.

73Pursuant to s. 6AAA of the Sentencing Act if you had pleaded not guilty and been found guilty the sentence I would have imposed is a term of 30 months with a non-parole period of 18 months.[6]

[6] Sentencing Act 1991 (Vic) s 6AAA.

74There was an ancillary order for forfeiture of some boots and a phone.

75MR McGLONE: Yes, you might recall, Your Honour, that we were wanting to get those back.

76HER HONOUR: Yes, I do recall that, and I do not propose to make that order.

77MR McGLONE: As Your Honour pleases.

78MS DUNN: I believe there was an unopposed disposal order as well, Your Honour.

79MR McGLONE: That is correct, Your Honour.

80HER HONOUR: That order will be made. I will make the disposal order that is sought by the Crown and I note that that is by consent. Mr Ross, the corrections order that you have got is a little unusual in that I have not put supervision on it, so the supervision will be done mostly by Disability Justice, so I expect that you will work with them, and that you will do what they tell you to do.

81The justice plan has really got two things on it that you must do. One of those is drug and alcohol, so you really need to be keeping some appointments and not using drugs, because that will get you into trouble, and the other thing is offending programs. So they have got some programs that they can get you to do to help you not get into trouble again, because you have had a big history of going in and out and in and out and in and out, and you need to stop that.

82You need to stop and think too about the people like Mr Bazeley, the break in at his house and the impact that that would have had on him. I do not have a victim impact statement, but that would not have been very good and you can imagine if someone broke into your house and took your stuff you would not think that is very good either. Am I right?

83OFFENDER: Yeah.

84HER HONOUR: If someone hurt someone who is close to you, you would not like that, and Mitre 10, you might think they are a big store, they can handle it, they are not and they cannot. Locals own those stores and those sort of thefts hurt them, so you really need to stop offending. So you have had plenty of time to think about that whilst you have been in custody because you have been in custody now for a long time, but I really hope that you can get things together this time, and this will be your time.

85I am going to check in, because I am really interested to see how you are going, so I will be seeing you in December and I will be seeing how you do. Mr McGlone has told me that this time you are going to do the right thing and you are keen to settle down and you have got a bit of a new start, even though Stawell is not that far from Ararat, it is probably far enough so you have got a bit of a fresh start, and I am really hoping that you can make a go of it.

86So I will check in with you in December and we will see how things are then. Hopefully I have not missed anything. Ms Dunn, I do not think we have got a disposal order that has been filed, so if that could be filed - it may well have been and we just cannot find it, but if you could file that I will make that order.

87MS DUNN: Yes, Your Honour, I will send that through.

88HER HONOUR: Thank you so much. Is there anything I have missed?

89MR McGLONE: Not from the defence point of view, Your Honour.

90MS DUNN: I do not think there is anything further, Your Honour.

91HER HONOUR: Thank you, everyone.

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