Director of Public Prosecutions v Rushton
[2022] VCC 1200
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-01833
CR-21-02371
CR-22-00637
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BENJAMIN RUSHTON |
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JUDGE: | HER HONOUR JUDGE LEIGHFIELD | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 October 2021, 11 October 2021, 9 November 2021, 24 June 2022 | |
DATE OF SENTENCE: | 24 June 2022 | |
CASE MAY BE CITED AS: | DPP v Rushton | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1200 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Theft of motor vehicle – theft – burglary – theft of firearm - prohibited person possessing firearm – handling stolen goods – possession of a drug of dependence – carjacking – possession of an imitation firearm whilst subject to a firearm prohibition order – negligently dealing with proceeds of crime – driving while disqualified – unlawful assault – committing an indictable offence whilst on bail - resisting an emergency worker whilst on duty – carrying a controlled weapon without excuse – going equipped to steal – dealing with property suspected of being proceeds of crime – deprived background – plea of guilty – parity – youthful offender – impact of COVID-19 on burden of imprisonment – licence disqualification
Cases Cited:Bugmy v The Queen [2013] HCA 37
Sentence: Convicted and sentenced to a term of imprisonment of 3 years and 8 months and 58 days, with a non-parole period of 2 years and 7 months
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr Craig McConaghy | Office of Public Prosecutions |
| For the Accused | Mr William Blake | Slink & Keating Lawyers |
HER HONOUR:
Introduction
1Benjamin Rushton, you have pleaded guilty to multiple charges over three indictments, as well as a number of summary related offences.
2On indictment K12340236 (the ‘first indictment’), you have pleaded guilty to eight charges of theft of motor vehicle (Charges 1, 2, 4, 5, 6, 10,11 and 12), two charges of theft (Charges 3 and 9 ), one charge of burglary (Charge 7), one charge of theft of firearm (Charge 8), one charge of prohibited person possessing firearm (Charge 13), one charge of handling stolen goods (Charge 14) and one charge of possession of a drug of dependence (Charge 15).
3On indictment M10502370 (the ‘second indictment’), you have pleaded guilty to one charge of carjacking.
4On indictment N10133618 (the ‘third indictment’), you have pleaded guilty to one charge of theft of motor vehicle (Charge 1), one charge of possession of an imitation firearm whilst subject to a firearm prohibition order (Charge 2), one charge of possession of a firearm related item while subject to a firearm prohibition order (Charge 3), two charges of possession of a drug of dependence (Charges 4 and 5), one charge of handling stolen goods (Charge 6) and one charge of negligently dealing with proceeds of crime (Charge 7).
5You have also consented to this court hearing, and pleaded guilty to the following related summary offences:
(a) two charges of driving whilst disqualified (Charges 13 and 15), one charge of dealing with property suspected of being proceeds of crime (Charge 20) and one charge of possessing cartridge ammunition without a licence (Charge 21) related to the first indictment;
(b) one charge of unlawful assault (Charge 3) related to the second indictment; and
(c) one rolled up charge of committing an indictable offence whilst on bail (Charge 7), one charge of resisting an emergency worker whilst on duty (Charge 15), one charge of carrying a controlled weapon without excuse (Charge 30), one charge of going equipped to steal (Charge 31) and one charge of dealing with property suspected of being proceeds of crime (Charge 33) related to the third indictment.
6The maximum penalties for each of the offences are as follows:
(i)carjacking, theft of firearm, and handling stolen goods – 15 years' imprisonment;
(ii)prohibited person possessing a firearm, and possession of an imitation firearm whilst subject to a firearm prohibition order – 10 years' imprisonment or 1200 penalty units;
(iii)
burglary, theft (including theft of motor vehicle), and possession of a firearm related item while subject to a firearm prohibition order –
10 years' imprisonment;
(iv)negligently dealing with proceeds of crime – 5 years' imprisonment;
(v)driving whilst disqualified – 2 years' imprisonment or 240 penalty units;
(vi)dealing with property suspected of being proceeds of crime, and going equipped to steal – 2 years' imprisonment;
(vii)carrying a controlled weapon – 1 year imprisonment or 120 penalty units;
(viii)possession of a drug of dependence where not committed for the purpose of trafficking – 1 year imprisonment or 30 penalty units;
(ix)
resisting an emergency worker on duty – 6 months' imprisonment or
60 penalty units;
(x)committing an indictable offence whilst on bail – 3 months imprisonment or 30 penalty units;
(xi)unlawful assault – 3 months’ imprisonment or 15 penalty units;
(xii)possession of cartridge ammunition – 40 penalty units; and
(xiii)possession of a drug of dependence being a small quantity of cannabis – 5 penalty units.
7Additionally, carjacking is a category 2 offence under the Sentencing Act 1991 (Vic). This means that I must impose a custodial sentence (which is not imposed in combination with a community correction order) on you for that offence unless at least one of the circumstances set out in paragraphs (a) to (e) of s5(2H) of the Sentencing Act exists. It was not submitted on your behalf that any of those circumstances exist in this case.
Circumstances of the Offending
8Circumstances of the offending for which you fall to be sentenced are set out in the three Summary of Prosecution Opening on Plea documents tendered as Exhibits A, C and D on the plea. However, in shorter compass, your offending was as follows.
Offending on the Second Indictment and Related Summary Charges
9On 20 August 2019 at approximately 4.50 pm you and a co-accused, Joshua Naggs, were in Yarraleen Place in Bulleen. Also in Yarraleen Place was Ms Stella Bakas and her daughter Louiza Bakas. Ms Bakas was standing outside her car which was a 2010 Mercedes Benz E350 Coupe, whilst Louiza was sitting in the front passenger seat. You and Mr Naggs approached the vehicle and Mr Naggs asked Ms Bakas if she could call a taxi for him. He then forcibly grabbed Ms Bakas by the wrist and tried to grab her keys, which were in her hand at the time. Ms Bakas was extremely frightened and yelled at Louiza to call the police. You then went to the passenger side of the vehicle where Louiza was standing, grabbed Louiza by the upper arms and forcefully pushed her out of the way (related summary Charge 3 – unlawful assault). You and Mr Naggs then got into the car and drove off (Charge 1 – carjacking).
10I am told by prosecuting counsel – based on the victims' police statements which were taken on the day of the incident – that as a result of the offending both Ms Bakas and Louiza were extremely scared and fearful. Further, Ms Bakas suffered pain to her shoulders and right hand and received a minor cut to her right middle finger. Whilst I have not received a victim impact statement from either Ms Bakas or her daughter, I accept the impact of the offending upon them as described in their police statements and I take this into account in sentencing you.
Offending on the First Indictment and Related Summary Charges
11Sometime between 21 August 2019 and 22 August 2019 a silver BMW X5 ('vehicle 1') was stolen by unknown offenders from the street outside a residential address in Glen Iris.
12On 23 or 24 August 2019, a white Audi Q5 SUV ('vehicle 2') was stolen by unknown offenders from outside a house in Hawthorn East. On 25 August 2019, at approximately 2.02 am, vehicle 2 was driven by co-accused Joshua GRIFFITH to a BP service station in Mount Waverley. You were in the passenger seat of vehicle 2 at the time. You got out of vehicle 2, filled it with petrol, went into the store to pay for the petrol and then returned to the front passenger seat of vehicle 2. Mr Griffith then drove vehicle 2 out of the service station. Your presence in, and interactions with, vehicle 2 constitute the subject matter of Charge 1 (theft of motor vehicle). You have pleaded guilty to that charge by reason of the extended definition of theft; it is not alleged that you are the person who stole the motor vehicle from where it was parked.
13
On 24 August 2019, co-accused Joshua GRIFFITH stole a backpack from storage pigeonholes at the Eltham Leisure Centre. That backpack contained keys to a blue Ford Territory station wagon ('vehicle 3') which was parked in the carpark of the Centre. The stolen keys were then used to steal vehicle 3 from the carpark. On
26 August 2019 you drove vehicle 3 into a Coles Express Service Station in Malvern. You filled vehicle 3 with $75.98 worth of fuel, before driving off without making any attempt to pay for the fuel (Charge 3 - theft). You were disqualified from driving at this time due to orders which were made against your licence at the Moorabbin Justice Centre on 13 April 2019 (related summary Charge 13 – driving whilst disqualified). Your interactions with vehicle 3 on 24 August 2019 constitute the subject matter of Charge 2 (theft of motor vehicle). You have pleaded guilty to that charge by reason of the extended definition of theft; it is not alleged that you are the person who stole the motor vehicle from where it was parked.
14On 24 August 2019, unknown offenders committed a burglary at a residential address in Templestowe. During the burglary the offenders stole a set of keys, and then used those keys to steal a silver Holden Calais Sedan ('vehicle 4').
15On 25 August 2019, Matthew BURLEY committed a burglary at a residential address in Watsonia North. During the burglary, Mr Burley stole a set of keys and then used those keys to steal a Land Rover Station Wagon ('vehicle 5') which was parked in the driveway.
16
On 30 August 2019, you were under surveillance by police surveillance operatives. At approximately 10.39 am you entered the front passenger seat of vehicle 5 in Dandenong. Vehicle 5 then drove to Lakesfield Drive, Lysterfield with you still in the front passenger seat. You got out of vehicle 5, spoke to an unknown female and then got back into vehicle 5. Vehicle 5 then drove to Farmillo Court, Lysterfield. You were then seen by the surveillance operatives driving vehicle 4 from Farmillo Court in convoy with vehicle 5. You drove vehicle 4 to Clean Maker Carwash in Ferntree Gully. Later that same day, at approximately 2 pm, you were seen by surveillance operatives to exit from the passenger seat of vehicle 4 in the carpark of a shopping centre in Rowville. Your interactions with vehicles 4 and 5 on
30 August 2019 constitute the subject matter of Charge 4 (theft of motor vehicle) and Charge 5 (theft of motor vehicle) respectively. You have pleaded guilty to both Charges 4 and 5 on the basis of the extended definition of theft; it is not alleged that you are the person who stole the motor vehicle from where it was parked. Further, your actions in driving vehicle 4 on this day, whilst your licence was disqualified, constitute the subject matter of related summary Charge 14 (drive whilst disqualified).
17On 2 September 2019 unknown offenders stole a black BMW sedan ('vehicle 6') which was parked in the driveway of a residential address in Forest Hill.
18Additionally on 2 September 2019, an aggravated burglary was committed by unknown offenders at a residential address in Balwyn. The offenders stole two sets of keys which they then used to steal two vehicles from the garage – one of which was a blue Volkswagen Passat ('vehicle 7').
19At 11.57 am on 4 September 2019, yourself, co-accused Griffith and an unknown offender attended at a residential premises in Balnarring in a silver Holden motor vehicle. Once you all arrived at the address, Griffith and the unknown co-offender gained access to the house by forcing open a side door of the premises. They then both searched the entire property including the shed area, where firearms were stored in a locked safe. You remained in the vehicle as the driver whilst the burglary was being committed. The CCTV shows the Holden initially parked outside the house, and then some 20 minutes later driving towards the shed where the firearms were located. It is not alleged that you were aware of the presence of firearms at the property prior to this time. At 12.50 pm you then drove the vehicle from the premises. This conduct constitutes Charge 7 – burglary.
20Whilst at the property seven firearms were stolen (Charge 8 – theft of firearm). There was also a large amount of personal property belonging to the owners stolen which included electrical items, personal and identification documents, jewellery, bags and cash. A full list of the items stolen is set out in the Prosecution Opening. This conduct constitutes Charge 9 – theft.
21On the plea, I received a victim impact statement from Michael Carr who was one of the victims of this burglary and theft. It is clear from his statement that the actions of you and your co-accused have caused him to lose his sense of safety and security in his own home – a place where he and his family are entitled to feel safe. Moreover, your offending has caused him a financial loss as some of the items which were stolen were either not covered or not completely covered by his house and contents insurance – this includes some of the cash which was stolen from the property which belonged to Mr Carr's father who was in a nursing home at the time. I accept that your offending has had a significant impact on Mr Carr, and I take that impact into account in sentencing you.
22Returning to the offending, at approximately 2.37 pm on 4 September 2019, police surveillance operatives saw vehicle 5 parked with vehicle 3 in Mornington, with the boots open and three people standing with the vehicles. At approximately 2.41 pm, you were seen by surveillance operatives to be driving vehicle 3. They then maintained surveillance on vehicle 5.
23
At 4.05 pm on 4 September 2019, co-accused Griffith and Brodie Randall were arrested with vehicle 5 in Chadstone. A mobile phone seized from Griffith contained multiple photographs which linked you with vehicle 4. When vehicle 6 was subsequently forensically examined, you were also linked to that vehicle through a right palm print on the driver's side door, a left palm print on the driver's side door, a right palm print on the passenger door handle and a left middle fingerprint on the passenger door handle. Your interactions with vehicle 6 on
4 September 2019 constitutes the subject matter of Charge 6 – theft of motor vehicle. You have pleaded guilty to that charge by reason of the extended definition of theft; it is not alleged that you are the person who stole the motor vehicle from where it was parked.
24On 5 September 2019 at approximately 10.39 am unknown offenders stole a black BMW 330i sedan (vehicle 8) from the street outside a residential address in Caulfield North.
25At approximately 2.59 pm on 5 September 2019, police surveillance operatives saw you driving vehicle 8 in convoy with vehicle 1 on Springvale Rd, Mulgrave. At approximately 3.50 pm you got out of vehicle 8, and got into the driver's seat of vehicle 1. Then at approximately 4 pm you were seen by the surveillance operatives driving vehicle 7 on Balaclava Rd in Caulfield North. At 4.20 pm you were still driving vehicle 7, in convoy with vehicles 1 and 8 in Caulfield East. At 4.34 pm, all three vehicles parked together in Carnegie, and you removed two bags from the boot of vehicle 8 and placed them into the rear of vehicle 7. At approximately 5.27 pm, you were then seen driving vehicle 7 in convoy with vehicle 1 in Mulgrave. A short time later Vehicle 1 was seen driving off. At approximately 5.36 pm you were seen to exit the rear passenger seat of vehicle 1, and then enter the driver's seat of vehicle 1. Vehicle 1 was then followed to your home in Doveton where three people were observed to exit vehicle 1, remove items and enter the house. Vehicle 1 remained parked outside your home. Your interactions with vehicle 8, vehicle 1 and vehicle 7 on 5 September 2019 constitute the subject matters of Charge 10 (theft of motor vehicle), Charge 11 (theft of motor vehicle) and Charge 12 (theft of motor vehicle) respectively. You have pleaded guilty to each of Charges 10, 11 and 12 on the basis of the extended definition of theft; it is not alleged that you are the person who stole the motor vehicles from where they were parked.
26
At approximately 6.19 pm on 5 September 2019, police executed a search warrant at your home. You were arrested inside the house and numerous stolen items were found – including one of the firearms (Charge 13 - prohibited person possess firearm) and a number of items of the personal property which was stolen during the burglary at Balnarring. Also located was a Protective Service Officer identification and Shell fuel card which had been stolen from a vehicle on
30 August 2019 (Charge 14 – handle stolen goods); a mobile phone, LIFX designs watch/clock, a memorial coin and two sunglasses covers which were suspected of being proceeds of crime (related summary Charge 20 – deal with property suspected of being proceeds of crime); and 18 rounds of ammunition (related summary Charge 21 – possession of cartridge ammunition).
27You were then taken to Dandenong Police Station where you were searched. A Ziploc bag containing methylamphetamine was located on your person (Charge 15 – possess drug of dependence). On 6 September 2019, police spoke to you about participating in a recorded interview, however you declined to be interviewed.
Period of Remand
28
As noted, you were arrested and taken into custody on 5 September 2019 in relation to the charges the subject of the first indictment. You were not charged with the offending the subject of the second indictment until March 2021. You had remained in custody for that entire period. I heard a plea in mitigation in respect of the offending the subject of the first indictment on 7 and 11 October 2021. At that stage the offences the subject of the second indictment were still only at committal mention stage in the Magistrates' Court, however they resolved shortly thereafter and proceeded by way of straight hand-up brief to this court. On 9 November 2021 you were arraigned on the second indictment, and I made an order deferring sentence on the first indictment. I then bailed you on CISP bail on both indictments. Up to that point you had spent 797 days in custody, which the parties agree is
pre-sentence detention available to be declared in respect of the offences on both the first and second indictment.
29Unfortunately, during the period of deferral you committed a further set of offences which form the subject matter of the third indictment and the related summary offences to that indictment.
Offending on Third Indictment and Related Summary Offences
30On 12 December 2021 you were served with a Firearm Prohibition Order which is active for a period of 10 years. That order prohibits you from acquiring, carrying or using any firearm or firearm related item. It also permits a police officer to enter and search any premises either occupied by you, or which are in your care and control, including any vehicles on that premises.
31At 6 pm on 19 January 2022, emergency services were contacted by an anonymous caller who stated that there was an outstanding stolen vehicle parked in the driveway of their address. Police attended and noted that the vehicle was a BMW which had been stolen during a burglary which had been committed on 5 January 2022 in Tarneit. It had fake registration plates attached to it and was unlocked. Police members started to search the vehicle and located a number of items being a wet wipe packet containing thirteen shotgun ammunition cartridges (Charge 3 – possession of a firearm related item whilst subject to a Firearm Prohibition Order); a homemade ignition breaking tool (related summary charge 31 – going equipped to steal); and a Victorian driver's licence in the name of Joshua Lamech (related summary Charge 33 – dealing with property suspected of being proceeds of crime).
32Whilst police were searching the vehicle you exited the rear gate of the adjoining property which shared the driveway in which the vehicle was parked. You were carrying several bags and a vehicle key with you, and you immediately went back to just inside the property boundary and placed all of the items you were carrying on the ground. One of the police officers, Senior Constable Hall, asked what you had in your pockets and you removed a foldable knife from the front pocket of your shorts (related summary Charge 30 – carry controlled weapon without excuse). Senior Constable Hall also retrieved the vehicle key which you had been carrying and activated the lock/unlock button which unlocked the BMW (Charge 1 – theft of motor vehicle). You denied all knowledge of the stolen BMW – although I note that a later forensic investigation located your fingerprints on the vehicle's bonnet, near the driver's side front quarter panel. You have pleaded guilty to Charge 1 on the basis of the extended definition of theft; it is not alleged that you are the person who stole the motor vehicle from where it was parked.
33At approximately 7.20 pm you were advised that you were under arrest for theft of motor vehicle and given your caution and rights. You were not immediately handcuffed and were given an opportunity to both finish your cigarette and give your mother a hug. As you were hugging your mother you pushed her aside and ran down the driveway and into the street. You were chased by police into the backyard of a neighbouring property and were sprayed with OC spray. Police members directed you to get on the ground. Initially you were not fully compliant with that direction (related summary Charge 15 – resisting an emergency worker on duty). You were then restrained by two police officers and were again directed to lay on your stomach and place your hands behind your back. You were handcuffed and then returned to your address to receive after-care in relation to the OC spray exposure.
34Whilst you were receiving that after-care you told police that there was a quantity of drugs and a firearm in the bags that you had been carrying when you walked out of the gate. Police searched your belongings and located a number of items including:
· an imitation (gel blaster) handgun with an empty magazine inserted (Charge 2 – possession of an imitation firearm while subject to a firearm prohibition order);
· a Ziploc bag containing cannabis (Charge 4 – possession of a drug of dependence);
· a clear plastic bottle containing 1,4- butanediol (Charge 5 – possession of a drug of dependence);
·
various identification documents, bank and miscellaneous cards in the name of Daniel Squillacioti which had been stolen from a motor vehicle on 15 January 2022; a passport in the name of Ziao Cad which had been stolen from a motor vehicle between 29 and 30 December 2021; a Honda key tag with a unique identifying number attached; a Versace wallet and Medicare card belonging to Xi Yao which had been stolen from a motor vehicle between 29 and 30 December 2021; and a motorpass fuel card belonging to Finnigan Callanan which had been stolen from a motor vehicle between
14 and 15 January 2022 (all of which constitutes Charge 6 – handling stolen goods);
· a wallet containing various cards in your name and $1,125 believed to be the proceeds of crime (Charge 7 (part) – negligently deal with proceeds of crime); and
· multiple sets of unidentifiable vehicle and building keys reasonably believed to be stolen (related summary Charge 33 (part) – dealing with property suspected of being proceeds of crime).
35In the carport, police also located a three-tiered red box containing plumbing equipment to the value of $4,000 which they reasonably believed to be stolen (related summary Charge 33 (part) – deal with property suspected of being proceeds of crime). A Swatch watch which you had been wearing was also later seized from the custody area of the police station, as it was also believed to be proceeds of crime (Charge 7 (part) – negligently deal with proceeds of crime).
36Each of those above offences were committed whilst on bail. Related summary Charge 11 is a rolled-up charge of committing an indictable offence whilst on bail which covers each of the seven indictable offences committed on this day.
37On 20 January 2022 you were interviewed in respect of this matter but made no comment to the allegations. You were remanded and have remained in custody pending the plea in this matter and further plea on the matters the subject of the first and second indictment. You have served a further 156 days in custody since your latest remand, with a total pre-sentence detention across all three matters of 953 days not including today's date.
Prior Convictions
38You have a lengthy prior history for someone who is still only 23 years of age now and was only 20 years of age at the time of committing the offending the subject of the first and second indictment. You have appeared in the adult jurisdiction consistently since July 2017 when you were 18 years of age.
39On 18 July 2017 you received a total effective sentence of six months detention in a youth justice centre for 11 offences including reckless conduct endangering life, driving offences, dishonesty offences, carrying a controlled weapon and possession of methylamphetamine. You received a further two months detention on 27 September 2017 for a consolidation of 13 charges including burglary, theft, theft of motor vehicle, handling stolen goods, possessing controlled weapons and driving offences. On 27 March 2018 you were then placed on an 18-month community correction order with community work hours, supervision and treatment conditions, again for multiple offences including dishonesty, firearm, and drug offences. Shortly thereafter, on 17 August 2018, you were again sentenced on a consolidation of driving, dishonesty and drug offences. On that occasion you received an aggregate term of seven months' imprisonment and your community correction order was varied to re-commence upon your release from custody.
40
It appears that you only spent a few months in the community before you were again remanded on further offending which was ultimately dealt with on 18 April 2019. You were sentenced on a consolidation of driving, dishonesty and weapon offences to an aggregate term of eight months imprisonment (with 128 days of
pre-sentence detention), and your community correction order was again varied to re-commence upon your release from imprisonment. This means that at the time of committing the offending on the first and second indictment, you had only been out of custody for a matter of weeks and were subject to a community correction order.
Gravity of the Offending
41Turning now to the gravity of the offences, there is no dispute that the offending for which I am sentencing you is serious offending.
42As submitted by prosecuting counsel the offences subject of the first and second indictment represent a spree of offending conduct. It was committed over a relatively short period of time – being some two and half weeks – but was the kind of offending which has significant impact on the victims. You assisted in the retention and use of multiple stolen vehicles, were involved in a burglary in which a large amount of property and firearms were stolen, and were a principal actor in a carjacking – albeit a carjacking which falls towards the lower end of seriousness for what is an inherently serious offence. You also ended up in possession of one of the firearms from the burglary whilst being a prohibited person, as well as being in possession of multiple other items which were either stolen or believed to be stolen. Moreover, each of the offences on the first two indictments were committed in circumstances where you had a relevant prior criminal history, had only been out of custody for a very short period of time and were subject to a community correction order.
43The offending on the third indictment is also serious offending. You were on bail on a deferral for offending which included being a prohibited person possessing a firearm, theft of motor vehicle and multiple charges of possessing property that was either stolen or believed to be stolen, and you committed further offences of the same kind. Given that you were on bail at the time, ss16(1A) and 16(3C) of the Sentencing Act 1991 apply to the offences the subject of the third indictment – that is the sentences I impose on each of those charges are to be served cumulatively upon any other sentences I impose unless I direct otherwise. I note that in your case, having regard to the principle of totality, I will direct otherwise and only partially cumulate the sentences on those offences.
44Finally, I note that in respect of each of the groupings of the eight theft of motor vehicle charges on the first indictment; the two summary related offences to the first indictment of driving whilst disqualified; and the two charges of possessing an imitation firearm and possessing a firearm related item whilst subject to a prohibition order on the third indictment; I am of the view that it is appropriate to impose an aggregate sentence given that in each case the offences form a series of offences of the same or similar character.
Guilty Plea and Remorse
45
This matter has a long history with the initial filing hearing for the charges the subject of the first indictment being almost three years ago on 6 September 2019. Those charges progressed through various committal mentions and committal case conferences in the Magistrates' Court between 29 November 2019 and
22 April 2020 – some of which were presided over by me acting in my former role as a Magistrate. The matter was then listed for a contested committal hearing, together with co-accused Naggs and Griffith, on 1 June 2020 but was adjourned due to COVID-19. It was ultimately heard on 14, 15 and 17 December 2020. The only witnesses cross-examined by your counsel at committal were five surveillance operatives and the informant. You did not seek to ask questions of any of the victims of the offending. At the conclusion of the contested committal you were committed to stand trial on all charges and the matter then proceeded through two case conferences before me in this Court in May and July 2021. You ultimately indicated an intention to plead guilty to the charges on the first indictment on
6 August 2021 and the matter proceeded to a plea hearing on 7 October 2021.
46By contrast, the charges the subject of the second and third indictment resolved very rapidly.
47As previously noted you were not charged with the offences the subject of the second indictment until 15 March 2021, despite having committed them in August 2019. You were initially charged in the summary stream, but at your request the matter was uplifted and a filing hearing was conducted on 25 October 2021. You then indicated a plea of guilty to the charges at committal mention on 5 November 2021 and the matter proceeded to the County Court by way of straight hand-up brief. You were arraigned and pleaded guilty to the charges on the second indictment on 9 November 2021.
48
You were then charged with the offences the subject of the third indictment on
19 January 2022. You similarly pleaded guilty to those charges at committal mention on 25 April 2022 and the matter proceeded by way of straight hand-up brief to this court whereupon you were arraigned on the further plea date today being 24 June 2022.
49I consider your pleas on the second and third indictment to have been entered at the very earliest opportunity. Further, despite the very lengthy history in respect of the first indictment, I consider those pleas to have also been entered at a relatively early opportunity – albeit not at the earliest time. You had been involved in resolution discussions in respect of those matters from as early as March 2020, with the sticking point at all times having been the Balnarring burglary and the weapons which were taken from that property. When the matter finally resolved it did so in a manner in which it was conceded by the prosecution that you were unaware of the presence of the weapons at that property until they had been stolen by your co-accused.
50Your pleas are valuable for a number of reasons. Firstly, you have saved all of the civilian witnesses, and in particular the many victims in these matters, from the ordeal of having to give evidence. Secondly, your pleas facilitate the course of justice and have utilitarian value. That utilitarian value is further enhanced by the timing of your pleas, all of which have been entered during the pandemic and in circumstances where COVID-19 has had an unprecedented impact on the efficient running of the criminal justice system. Thirdly, I accept that each of your pleas of guilty demonstrate remorse and an acceptance of responsibility for your conduct, as also reflected in your conversations with Dr Cunningham and the letter which you wrote to the Court which was tendered on the plea. In the circumstances I have given you a substantial discount on sentence for your pleas of guilty.
Personal Circumstances
51You come before the court as a youthful offender – having been 20 years of age at the time of the offending the subject of the first and second indictment; 23 years of age at the time of the offending on the third indictment; and still being 23 years of age now. You have five siblings – three older and two younger, and you were raised with two of those siblings by your mother after your father left the family home when you were young. You speak in positive terms about your mother who you describe as the 'best mother in the world' and you say that she did the best that she could in raising you and your siblings in difficult circumstances. I note that you have the continued support of your mother and your siblings, who have been in attendance at the many plea hearings in this matter. You have very little contact with your biological father who moved to Tasmania.
52Your mother re-partnered when you were young but unfortunately your stepfather was a violent man who had 'roid-rage' and used and sold drugs. He was mentally and emotionally abusive to both you and your siblings, and was physically violent to your mother. He remained with your family until you were 13 years old, at which time he left to have a relationship with your mother's best friend. You completed your primary schooling at Ashburton Primary School whilst your stepfather was still present in the home. At the age of twelve, whilst you were still at primary school, your stepfather introduced you to marijuana and you began to use it regularly. It was also around this time that you lost your godfather – who was like a father figure to you – to suicide.
53You went on to complete Years 7 and 8 at Ashwood College and then left school to study plumbing at TAFE. You commenced work as a roof plumber at 16 years of age and continued with this until you were 17. Whilst you were still at school, you started to associate with your older sister's partner who used drugs and stole cars. He introduced you to methylamphetamine when you were 15 years of age, and, by the time you were 18, you were using methylamphetamine on a daily basis. By that time you were also regularly committing offences and had progressed to the point where you were being remanded and sentenced to terms of detention or imprisonment. As a result of your drug use and offending behaviour you were unable to continue working.
54Prior to your remand on this offending you had undertaken some very short periods of drug rehabilitation treatment, but had been unsuccessful in remaining drug free and had disengaged within a short period of time. You made efforts during your first period of remand on these matters to address your drug use and to remain drug free. You undertook a 12-hour Substance Use and Emotional Regulation Program, engaged in the methadone program, and managed to remain abstinent from drugs as evidenced by the clean drug urine test results tendered on the plea which span a period from 22 September 2019 to 28 May 2021. You also engaged in a number of other education programs and undertook the training to become a peer educator in the prison. You were successful in this endeavour and worked in the role of peer educator from approximately mid-2020 onwards.
55The combination of the period of time which you had already spent in custody and the progress towards rehabilitation which you had made whilst on remand were the two most significant factors underlying my decision to grant a deferral of sentence on 9 November 2021 and release you on CISP bail. You engaged well with the CISP program, attending sessions as required and being open and honest with your case worker and counsellor. However, despite your clear motivation prior to being released to remain completely drug and offence-free, and your continued attendances with workers from the CISP program, you were unsuccessful in this endeavour. You relapsed into drug use not long after being released from custody, and then ultimately committed the offences the subject of the third indictment.
Relevance of Deprived Background to Sentence
56A psychological report authored by Dr Aaron Cunningham and dated 4 October 2021 was tendered on the plea. Dr Cunningham had assessed you prior to your release on the deferral and formed the opinion that your methylamphetamine abuse was the main contributor to your offending behaviour. He noted that underlying this was a level of emotional and psychological immaturity which has arisen as a result of your history. Dr Cunningham was of the view that you are a moderate risk of re-offending and that relapse into drug use is the most prominent risk factor for you. He did however identify that you had a number of protective factors which may reduce your risk being the availability of stable accommodation, family support and your motivation to remain drug free.
57It was submitted on your behalf during the plea that your exposure to violence and introduction to drugs within your own household from such an early age has had an ongoing effect upon you and has contributed to your cycle of drug abuse and offending. Your counsel submitted that your early childhood deprivation enlivens the principles in Bugmy v The Queen [2013] HCA 37 and that as a result the weight to be given to general deterrence in the sentencing synthesis should be moderated to some degree. Prosecuting counsel did not take issue with this submission and further conceded that as a result of your background it would also be open for me to find that your moral culpability for your offending is moderately reduced from what would otherwise be a high degree of culpability.
58I agree with the submissions of both counsel. There is a clear linkage between your childhood experiences, your abuse of drugs of dependence, and your offending. Whilst general deterrence still carries significant weight in the sentencing synthesis, I am of the view that both your culpability and the weight to be given to general deterrence must be assessed in the context of your personal history and should be moderated to a degree to give effect to the impact of your background upon you. I do however also have to have regard to the fact that your continued difficulty with drug abuse arising from your childhood experiences does raise a need to ensure that any sentence I impose also adequately addresses the need for community protection.
Prospects of Rehabilitation
59Insofar as your prospects of rehabilitation are concerned, it is clear that your prospects are strongly tied to your ability to remain drug free. There is no doubt from your history of engaging in work at an early age, and your commitment to undertaking courses and work in custody that you do have the ability to be a contributing member of the community. You clearly take great pride and joy in being able to help others. You have family support and stable accommodation available to you, and you are keen to remain drug and offence free. You are also still a youthful offender and I am cognisant of the fact that you have spent much of the past five years of your life in custody. Rehabilitation is still an important sentencing consideration despite your criminal history and the seriousness of the offences for which I am sentencing you.
60Prior to your difficulties on the deferral I was of the view that you had good prospects for rehabilitation. Even now, I am still of the view that you are capable of being rehabilitated, but my optimism in that regard is more guarded than it was previously. I am still firmly of the view, however, that rehabilitation is an important sentencing purpose in the sentencing synthesis, and any sentence I impose must contain a component which sufficiently allows an opportunity for your rehabilitation to be fostered.
Impact of Covid-19
61As I have already noted, you have now spent some 953 days on remand, a large proportion of which has been served during the pandemic. During the two periods that you have been in custody you have been impacted by the COVID-19 pandemic in a number of ways. As a result of restrictions you have faced periods of quarantine and lockdown, had reduced access – including no face to face contact – with family and friends; experienced limitations on rehabilitative opportunities; and faced some disruption to medical care by way of cancellation of appointments such as your recent medical appointment in relation to fluid on your knees. You have also been subjected to heightened stress and anxiety in relation to your own health in custody and the health of your family in the community. I take this added burden of imprisonment both to date, and into the future, into account in sentencing you.
Parity
62In sentencing you, I have also had regard to the principle of parity.
63
Your co-accused in the Balnarring burglary, Joshua Griffith, was sentenced by Her Honour Judge Quin on 29 June 2021. He received a total effective sentence of
30 months' imprisonment and an 18 month community correction order across forty-five indictable offences being four charges of burglary; one charge of theft of firearm; 10 charges of theft of motor vehicle; 13 charges of theft; 11 charges of attempted theft; three charges of handle stolen goods; and one charge each of obtaining property by deception, being a prohibited person possessing a firearm, and possessing a drug of dependence. He was also sentenced in respect of six summary related offences being two charges of driving whilst suspended, two charges of dealing with property suspected of being proceeds of crime; one charge of dangerous driving; and one charge of unlawful assault.
64Of the charges for which you are co-accused, Mr Griffith was sentenced as follows:
(i)
Charge 35 (theft of motor vehicle) – which is the equivalent of
Charge 2 on your first indictment – 3 months' imprisonment (I note that Mr Griffith was sentenced on the basis that he was the person who stole the motor vehicle);
(ii)Charge 39 (burglary) – equivalent of Charge 7 on the first indictment – 4 months' imprisonment (I note that Mr Griffith was sentenced on the basis that he was one of the two offenders who entered the home and stole the various items);
(iii)Charge 40 (theft of firearm) – equivalent of Charge 8 on your first indictment – 12 months' imprisonment (this was the base sentence for Mr Griffith);
(iv)Charge 41 (theft) – equivalent of Charge 9 on the first indictment – 3 months' imprisonment; and
(v)Charge 42 (theft of motor vehicle) – equivalent of Charge 11 on the first indictment – 3 months' imprisonment.
Further, in respect of each of these charges, and all other charges, he was placed on a community correction order for a period of 18 months. At the time of being sentenced, Mr Griffith had already served 664 days (or approximately one year and 10 months) of pre-sentence detention.
65I note that there is not a great deal of difference between the two of you when it comes to sentencing on the offences for which you are co-accused. Whilst Mr Griffith entered his plea at an earlier opportunity on that offending and had mental health issues which mitigated his sentence, your role, as conceded by prosecuting counsel, in the offending was more limited than that of Mr Griffith. In all other matters you were fairly equal. In my view these factors do balance each other out and so I have taken care in the circumstances to not impose a sentence upon you which would lead to any sense of grievance either on your part or that of Mr Griffith in respect of those offences – albeit I am dealing with a different set of offences overall than those for which Mr Griffith was sentenced.
Submissions on Sentence
66Turning now to sentencing submissions. Both counsel submitted that given the events which occurred during the deferral of sentence, the only sentencing disposition available to me in this case is a term of imprisonment with a non-parole period.
67
Mr Blake, on your behalf, further submitted that I should consider imposing a
non-parole period commensurate with the period which you have already spent in custody given the various mitigating factors in this case.
Other Sentencing Purposes and Principles
68In sentencing you I have had regard to both the principle of parsimony and the principle of totality. I have also had regard, to the extent that I am able, to current sentencing practice for the various offences for which I am sentencing you today.
69Taking into account all of the matters which have been put before me in this case I am of the view that given the seriousness of the offending, the need for the sentence to be one which gives effect to both general and specific deterrence albeit moderated, and the need for denunciation of your offending and community protection, that the only sentencing disposition open is a term of imprisonment with a non-parole period. However, I am also of the view, having regard to the various mitigating factors, that rehabilitation must also be given significant weight in the sentencing synthesis and that it is important that you be given an opportunity for an extended period of time on parole where you will be able to work towards rehabilitation in a supervised environment. I have of course taken into account in sentencing you that you may be required to serve every single day of the sentence I impose and have endeavoured to ensure that the total sentence is one which would still be appropriate if you were required to serve every day.
Sentence
70Mr Rushton, you will be sentenced on each charge as follows. I am going to take it slowly but please tell me to slow down if at any stage you cannot keep up.
First Indictment and Summary Related Charges to First Indictment
71On Charges 1, 2, 4, 5, 6, 10, 11, and 12 (that is the eight charges of theft of motor vehicle) you are convicted and sentenced to an aggregate term of 14 months' imprisonment.
72On Charge 3, theft, you are convicted and sentenced to 1 month imprisonment.
73On Charge 7, burglary, you are convicted and sentenced to 4 months' imprisonment.
74On Charge 8, theft of firearm, you are convicted and sentenced to 12 months' imprisonment.
75On Charge 9, theft, you are convicted and sentenced to 3 months' imprisonment.
76On Charge 13, prohibited person possess firearm, you are convicted and sentenced to 12 months' imprisonment.
77
On Charge 14, handling stolen goods, you are convicted and sentenced to
4 months' imprisonment.
78On Charge 15, possess drug of dependence (methylamphetamine) you are convicted and sentenced to 30 days' imprisonment.
79On related summary Charges 13 and 15, driving whilst disqualified, you are convicted and sentenced to an aggregate term of 3 months' imprisonment.
80On related summary Charge 20, dealing with property suspected of being proceeds of crime, you are convicted and sentenced to 60 days' imprisonment.
81On related summary Charge 21, possess cartridge ammunition, you are convicted and fined $750.
Second Indictment and Summary Related Charge to Second Indictment
82On Charge 1, carjacking, you are convicted and sentenced to 15 months' imprisonment. This is the base sentence.
83On Charge 2, unlawful assault, you are convicted and sentenced to 30 days' imprisonment.
Third Indictment and Summary Related Charge to Third Indictment
84On Charge 1, theft of motor vehicle, you are convicted and sentenced to 6 months' imprisonment.
85On Charges 2 and 3, possession of imitation firearm and possession of firearm related item whilst subject firearm prohibition order, you are convicted and sentenced to an aggregate term of 12 months' imprisonment.
86On Charge 4, possess drug of dependence (cannabis), you are convicted and discharged.
87On Charge 5, possess drug of dependence (1,4 -butanediol), you are convicted and sentenced to 30 days' imprisonment.
88
On Charge 6, handling stolen goods, you are convicted and sentenced to
4 months' imprisonment.
89On Charge 7, negligently deal with proceeds of crime, you are convicted and sentenced to 3 months' imprisonment.
90On related summary Charge 7, a rolled-up charge of commit an indictable offence whilst on bail, you are convicted and sentenced to 45 days' imprisonment.
91On related summary Charge 15, resist emergency worker on duty, you are convicted and sentenced to 2 months' imprisonment.
92On related summary Charge 30, carry controlled weapon without excuse, you are convicted and sentenced to 2 months' imprisonment.
93On related summary Charge 31, going equipped to steal, you are convicted and sentenced to 2 months' imprisonment.
94On related summary Charge 33, dealing with property suspected of being proceeds of crime, you are convicted and sentenced to 2 months' imprisonment.
Cumulation, Total Effective Sentence and Non-Parole Period
95I direct that:
· 4 months of the aggregate term imposed on Charges 1, 2, 4, 5, 6, 10, 11, and 12 on the first indictment;
· 4 months of the term imposed on Charge 13 on the first indictment;
· 4 months of the aggregate term imposed on Charges 2 and 3 on the third indictment;
· 3 months of the term imposed on Charge 8 on the first indictment;
· 2 months of the term imposed on Charge 7 on the first indictment;
· 2 months of the term imposed on Charge 1 on the third indictment;
· 2 months of the term imposed on Charge 6 on the third indictment;
· 1 month of the term imposed on Charge 9 on the first indictment;
· 1 month of the term imposed on Charge 14 on the first indictment;
· 1 month of the aggregate term imposed on related summary Charges 13 and 15 to the first indictment;
· 1 month of the term imposed on Charge 7 on the third indictment;
· 1 month of the term imposed on related summary Charge 15 to the third indictment;
· 1 month of the term imposed on related summary Charge 30 to the third indictment;
· 1 month of the term imposed on related summary Charge 31 to the third indictment;
· 1 month of the term imposed on related summary Charge 33 to the third indictment;
· 15 days of the term imposed on Charge 5 on the third indictment;
· 15 days of the term imposed on related summary Charge 7 to the third indictment;
· 14 days of the term imposed on related summary Charge 20 to the first indictment;
· 7 days of the term imposed on Charge 15 on the first indictment; and
· 7 days of the term imposed on related summary Charge 3 to the second indictment;
All be served cumulatively upon the sentence imposed upon Charge 1 on the second indictment, so that is cumulatively on the 15 months, and upon each other.
96The total effective sentence is therefore 3 years, 8 months and 58 days. Close enough to 3 years 10 months.
97I further direct that you serve a minimum period of 2 years and 7 months' imprisonment before becoming eligible for parole.
Pre-Sentence Detention
98Pursuant to s18 of the Sentencing Act 1991 (Vic), I declare that a period of 953 days is to be reckoned as a period of imprisonment already served under this sentence, and I direct that the fact of this declaration and its details be noted in the records of the court.
s6AAA Declaration
99
Pursuant to s6AAA of the Sentencing Act 1991, I indicate that had you pleaded not guilty to the charges for which you received a term of imprisonment today and been convicted of them, you would have been sentenced to a total effective sentence of 5 years and 10 months' imprisonment with a non-parole period of
4 years and 1 month. So you have received a significant discount for your pleas of guilty across all three indictments.
Licence Suspension
100Having convicted you of Charges 1, 2, 4, 5, 6, 10, 11 and 12 on the first indictment – all of which are charges of theft of motor vehicle; Charge 1 on the second indictment which is a charge of carjacking; and Charge 1 on the third indictment which is also a charge of theft of motor vehicle, I am required pursuant to s89(4) of the Sentencing Act1991 (Vic), to either suspend your licence, or cancel your licence and disqualify you from driving for a period of time for each of those offences.
101Mr Blake submitted that in the circumstances and given the need to foster your rehabilitation, that I should keep the period of disqualification of your licence to a minimum. Mr McConaghy by contrast submitted that in setting the term of disqualification I should take into account your prior history of driving offences and theft of motor vehicle offences and your role in each of the current offences.
102In determining how to deal with your licence in this case, I take into account that you do have a history of driving offences and that on the occasions when you actually drove the stolen vehicles, you were driving whilst disqualified. However, I have also take into account that you were not alleged to be driving all of the vehicles, and that your licence falls to be impacted on this occasion in circumstances where there is no evidence of bad driving by you. Further, I am of the view that any term of disqualification which I impose upon you should not be disproportionate to the offending for which I am imposing the disqualification. This means that the period which I impose should not be artificially inflated to ensure that you have a period off the road once you are released from custody.
103Accordingly, whilst I am going to impose a period during which your licence is cancelled and you are disqualified from driving, I am not going to disqualify your licence for an extensive period of time.
104On each of Charges 1, 2, 4, 5, 6, 10, 11 and 12 on the first indictment; Charge 1 on the second indictment; and Charge 1 on the third indictment, any licences you hold are cancelled and you are disqualified from driving for a period of 6 months from today.
105Further, on Charges 13 and 15 on the first indictment – being the two charges of driving whilst disqualified, I have a discretion as to whether to order a period of suspension or disqualification. I am of the view that given your driving history your licence should also be disqualified in respect of this offending. Accordingly, on Charges 13 and 15 any licences you hold are cancelled and you are disqualified from driving for a period of 6 months from today.
106Each of the terms of disqualification will run concurrently, so the total period of disqualification will be 6 months. It is important, Mr Rushton, that when you are released from custody that you do not drive until you are properly re-licenced. Do you understand that?
107I did see you nodding, but you are on mute. We are just going to unmute you. Yes.
108ACCUSED: Yes, I understand.
109HER HONOUR: All right, good.
Other Ancillary Orders
Forfeiture and Disposal Orders Pertaining to First indictment
110Pursuant to s151 of the Firearms Act 1996 (Vic) I make a forfeiture order in respect of:
(i)a Birmingham small arms .22 rifle;
(ii)9 x .22 rounds of ammunition; and
(iii)9 x black coloured rounds of ammunition.
111Pursuant to s78(1) of the Confiscation Act 1997 (Vic) I make a disposal order in respect of the following items:
(i)Ziploc bag containing a toothbrush; and
(ii)Ziploc bag containing crystal substance (methylamphetamine).
112Pursuant to s34(1) of the Confiscation Act 1997 (Vic) I make a forfeiture order in respect of the following items:
(i)'33' brand red cap;
(ii)'Nike' brand bumbag;
(iii)mobile phone (pink);
(iv)'LIFX Designs' brand watch/ clock;
(v)'Royal Tour of Australia' memorial coin; and
(vi)2 x sunglasses covers.
Forfeiture and Disposal Orders Pertaining to Third Indictment
113Can I just confirm that we sorted out the Lululemon bag?
114MR BLAKE: It is not opposed.
115HER HONOUR:
116Pursuant to s78(1) of the Confiscation Act 1997 (Vic) I make a disposal order in respect of the following drugs which were seized:
(i)cannabis;
(ii)1,4-Butanediol.
117Pursuant to s151 of the Firearms Act 1996 (Vic) I make a forfeiture order in respect of:
(i)shot gun cartridge ammunition x 13.
118Pursuant to s33(1) of the Confiscation Act 1997 (Vic) I make a forfeiture order in respect of the following items:
(i)a homemade ignition breaking tool;
(ii)imitation firearm component;
(iii)cash – AUD$1,125;
(iv)BMW digital key card;
(v)multiple sets of unidentifiable vehicle and house keys;
(vi)Mercedes Benz vehicle key;
(vii)set of unidentifiable keys;
(viii)CAT key;
(ix)Swatch watch;
(x)Lululemon bag;
(xi)Rothenberger plumbing tools; and
(xii)Nissan GT-R vehicle key.
119Pursuant to s9 of the Control of Weapons Act 1990 (Vic) I make a forfeiture order in respect of the following weapons:
(i)silver coloured fold out knife; and
(ii)imitation firearm.
Other Matters
120The effect of that sentence is as I said, effectively three years and 10 months' imprisonment, but it is three years eight months and 58 days. There is a non-parole period of two years and seven months. I cannot and have not taken into account the fact that there may be 12 months of time that is credited to Mr Rushton, that is not relevant to my determination. Whatever the authorities decide to do with that is not something that I have any control over and it is important that I do not inflate the sentence by reference to that situation and I have not, despite being told that information, I have not changed the non-parole period or the total effective sentence by reference to that. It is a matter for the authorities what they do or do not do in that regard.
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