Director of Public Prosecutions v Scouller
[2019] VCC 1021
•5 July 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT BALLARAT
CRIMINAL JURISDICTIONCR-18-02129
CR-18-02128
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JASON SCOULLER GEOFFREY WETZEL |
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| JUDGE: | HIS HONOUR JUDGE MASON |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 1 July 2019 |
| DATE OF SENTENCE: | 5 July 2019 |
| CASE MAY BE CITED AS: | DPP v SCOULLER & Anor |
| MEDIUM NEUTRAL CITATION: | [2019] VCC 1021 |
REASONS FOR SENTENCE
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Subject:Plea - sentencing
Catchwords: Scouller: Handle stolen goods - obtain financial advantage by deception – theft - dangerous or negligent driving while pursued by police - fail to stop motor vehicle upon police request
Wetzel: Theft - handle stolen goods - dangerous or negligent driving while pursued by police
Legislation Cited: Sentencing Act 1991
Cases Cited:
Sentence:Both: 728 days’ imprisonment (time served
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr G. Hevey | Office of Public Prosecutions |
| For Accused SCOULLER | Ms H. Anderson | Leanne Warren &Associates |
| For Accused WETZEL at hearing For Accused WETZEL at sentence | Mr M. McLellan Mr M. White | Emma Turnbull Lawyers |
HIS HONOUR:
1Jason Scouller, you have pleaded guilty to two charges of handle stolen goods, one charge of obtain financial advantage by deception, five charges of theft (including two charges involving a motor vehicle), one charge of dangerous or negligent driving while pursued by police and one related summary charge of fail to stop motor vehicle upon police request.
2Geoffrey Wetzel, you have pleaded guilty to two charges of theft, one charge of handle stolen goods and one charge of dangerous or negligent driving while pursued by police.
3The maximum penalties for these offences are as follows:
- Handle stolen goods 15 years’ imprisonment
- Obtain a financial advantage by deception 10 years’ imprisonment
- Theft 10 years’ imprisonment
- Dangerous or negligent driving while pursued
by police 3 years’ imprisonment- Fail to stop motor vehicle upon police request 5 penalty units.
4Mr Scouller, you were born on 29 September 1994 and are currently 24 years old. At the time of the offending you were aged 22.
5Mr Wetzel, you were born on 2 December 1990 are currently 28 years old. At the time of the offending you were aged 26.
6 You each have a criminal record about which I will go to more detail later.
7The circumstances of the offending are as follows.
As to the handle stolen goods, obtain financial advantage by deception and theft charges between 1 July 2017 and 2 July 2017 for Mr Scouller only:
8Between 30 June 2017 and 1 July 2017, a mobile phone and laptop computer were stolen from a residence in Sebastopol.
9The prosecution do not allege that you, Mr Scouller, stole the items from the residence, but that you were in possession of the items shortly thereafter. This conduct constitutes Charge 1 for you - handle stolen goods.
10Mr Scouller, you subsequently used applications on the phone and laptop to facilitate two transfers of funds totalling $900 into a NAB savings account in your name. You subsequently withdrew $800 from your account. This conduct constitutes Charge 2 for you - obtain a financial advantage by deception.
11At approximately 6.45 pm on 30 June 2017, you stole a red Ford Falcon Sedan - registration ZPG998 - from a residence in Sebastopol. This conduct constitutes Charge 3 for you, being theft of a motor vehicle - the red Falcon.
12Just before 2 am on 2 July 2017, numberplates TPR263 were stolen from another address in Ballarat. You were subsequently connected to and captured on CCTV driving the red Falcon with the stolen TPR263 plates affixed. This conduct constitutes Charge 4 for you - handle stolen goods.
As to the handle stolen goods charge on 3 July 2017 for Mr Wetzel:
13During the early hours of 3 July 2017, a silver Ford Falcon - registration WVW567 - was stolen from Black Hill Lookout.
14The prosecution do not allege that you, Mr Wetzel, stole the motor vehicle. You were in possession of the vehicle and are captured on CCTV footage driving the vehicle shortly thereafter. This conduct constitutes Charge 2 for you - handle stolen goods, being the silver Ford Falcon.
As to the petrol thefts and driving charges from 3 to 7 July 2017, and this conduct refers to both of you:
15At approximately 7.45 am on 3 July 2017, you both attended at the Caltex Service Station in Stawell Road, Horsham. You, Mr Scouller, were driving the red Falcon which had the stolen TPR263 plates affixed in place of the original plates. You, Mr Wetzel, were driving the silver Ford, WVW567.
16You both exited your vehicles and filled them with petrol. Mr Wetzel filled the silver Ford with fuel to the value of $70. Mr Scouller filled the red Falcon with fuel to the value of $65. You both then got back into your respective vehicles and left the petrol station without paying for the fuel. This conduct constitutes Charge 5 for Mr Scouller and Charge 1 for Mr Wetzel - theft.
17The petrol thefts were reported to local police, and CCTV stills and details of the vehicles were provided to members of the Horsham Highway Patrol.
18On 3 July 2017 at approximately 8.55 am, highway patrol members observed the red Falcon and the silver Ford drive past on the Western Highway heading towards the Kaniva Police Station from Nhill. Police executed a U-turn and attempted to catch up to the two vehicles. However, they accelerated to approximately 150 kilometres per hour and out of sight. At approximately 9.23 am, both cars were observed parked in the Kaniva Caravan Park, with two males outside the vehicles. Once you two were aware of police presence, you both drove off.
19You, Mr Wetzel, were subsequently observed driving the silver Ford along Madden Street, Kaniva. You turned into Commercial Street and travelled west at a fast rate. Police headed towards Commercial Street, where you, Mr Scouller, were observed in the red Falcon following the silver Ford. Police activated emergency lights and sirens in an attempt to intercept.
20You made no attempt to stop. Rather, you immediately accelerated. The red Falcon crossed over double white lines and overtook a prime mover truck. Commercial Street is a busy road because it is a main route between Melbourne and Adelaide. It accommodates a single lane of traffic in either direction. The speed limit in that area is 60 kilometres per hour. Police accordingly were forced to terminate the pursuit.
21At 10.20 am, police again saw the red Falcon now driving west on the Western Highway. The speed was checked at 127 kilometres per hour, then in excess of 150 kilometres per hour (where the speed limit is 100 kilometres per hour) and then 169 kilometres per hour. Police maintained pursuit; however you,
Mr Scouller, continued to drive at speed along the Western Highway over the border and into South Australia.22At approximately 12.40 pm, other police observed the silver Ford travelling east on the Western Highway and commenced pursuit with the intention of intercepting it. Emergency lights and sirens were activated. You, Mr Wetzel, driving the vehicle, accelerated heavily to between 200 - 210 kilometres per hour. The police terminated the pursuit when you crossed onto the wrong side of the road over a continuous white line as a truck was coming towards your vehicle. The truck had to take evasive action by slowing and pulling to the side of the road. Approximately two minutes later you overtook a truck driver on double lines at an excessive speed.
23The driving by each of you to which I have just referred constitutes Charge 6 for Mr Scouller and Charge 3 for Mr Wetzel - dangerous or negligent driving while pursued by police.
24The silver Ford with registration WVW567 was dumped in Bangham Road, Bangham, as it appeared to have become bogged on a sand track. It was discovered by the property's owner on 4 July 2017, and photographed and recovered by police the following day. Your DNA, Mr Wetzel, was located at various points in the vehicle.
25You both then had headed back towards Ballarat, both now in the red Falcon with registration plates TPR263. You, Mr Scouller, were driving the vehicle and you, Mr Wetzel, were the front seat passenger. You arrived at the BP Service Station in Horsham at approximately 8.10 pm on 3 July 2017. Mr Wetzel got out of the car and filled it with fuel to the value of $23.93. He got back into the car and Mr Scouller drove the vehicle off, with neither of you having made any attempt to pay. This conduct constitutes Charge 7 for Mr Scouller and Charge 4 for Mr Wetzel - theft.
26Police later located numberplates TPR263 in Cedar Road, Victoria Park in Ballarat on 4 July 2017, in close proximity to the red Falcon, which had been burnt. Your fingerprint, Mr Scouller, was discovered on the rear of one of the plates.
As to the theft of a Nissan Tiida and associated offending on 7 July 2017 - this refers to Mr Scouller only:
27On 7 July 2017 at 7.10 am, a Nissan Tiida motor vehicle, registration WCY827, had been observed as stolen overnight. At 1.40 pm on that same day you, Mr Scouller, drove the Nissan to the 7-Eleven store in Sebastopol and filled the car with $46.75 worth of petrol. You then got back in the car and left without paying. This conduct constitutes Charge 8 for you of theft of a motor vehicle and Charge 9 for you of theft.
28By this time members of the Special Operations Group were requested to assist with locating and arresting both of you. They observed the Nissan in Kenworthy Place, Mount Pleasant later that day. The vehicle was being driven by you, Mr Scouller, and Mr Wetzel was in the front passenger seat. When you observed the police vehicles you, Mr Scouller, attempted to evade police.
29The Special Operations Group members used their vehicles to box in the Nissan. You, Mr Scouller, then commenced to drive the Nissan back and forth, causing damage to both the Nissan and other vehicles as a result. You were unable to free the Nissan and eventually came to a stop. This conduct constitutes Summary Charge 13 for you, Mr Scouller, of fail to stop a motor vehicle upon police request.
30You were both arrested and interviewed. You, Mr Scouller, answered “No comment” to most questions and you, Mr Wetzel, provided an account of the allegations put to you in which you denied most of the offending with the exception of the Horsham Caltex Petrol theft, but admitted believing that the red Falcon and the silver Ford were stolen.
31I now turn to your personal circumstances.
32I will deal with you first, Mr Scouller. As I noted earlier, you are now aged 24 and were 22 when this offending occurred in July 2017.
33You have a criminal record which commenced in the Beenleigh Magistrates' Court in Queensland when, in March 2012, at the age of 18 you were convicted of receiving tainted property but not further punished.
34Some eight months later in the Brisbane Magistrates' Court you were fined for stealing.
35Two weeks after that you were put on probation for two years for the unlawful use of a motor vehicle and assaulting or obstructing police.
36Thereafter followed a string of appearances over the next three years, in various Queensland Magistrates' Courts for various offending, including assaulting police, contravening domestic violence orders, breaching your probation order and other violence and dishonesty offences. You were variously fined and given terms of imprisonment.
37Most recently, in January 2017 here in the Ballarat Magistrates' Court, you were given six months’ imprisonment (with approximately four and a half months remaining after time already served) for obtaining property by deception, criminal damage, theft of a motor car and unlicenced driving.
38Less than two weeks after your release you committed the offences for which you are about to be sentenced today.
39You were raised in Queensland and had a difficult childhood, with your parents separating when you were two years old. You saw your father on only two occasions - at funerals - and shortly thereafter your father died, most probably from suicide after a diagnosis of bowel cancer.
40At age eight you were placed in foster care, which was largely unsuccessful. Your placement was rarely settled and you recall approximately thirteen to fourteen different placements.
41Your difficulties were complicated by a diagnosis of attention deficit hyperactive disorder, for which you were medicated with Ritalin and Dexamphetamine.
42At age 16 you had a more settled adoption into a family at Beenleigh and got on well with your adoptive sister. After leaving school, you managed some work in warehousing.
43You have a history of drug use, using cannabis from age 14 to 15 and alcohol after you turned 22 following a break-up with a girlfriend. At that stage you were drinking a bottle of Bourbon each night.
44Whilst in custody you have been medicated with Methadone and also analgesics for nerve pain as a result of an earlier injury. Over the period of your custody you have participated in numerous courses directed towards your rehabilitation. These are set out in Exhibit 1 on your plea.
45You have also made preparations for your eventual release. You have secured a place on a housing register and a friend has arranged for possible employment for you at a car-wrecking business. You have also saved $800 and are eligible for Centrelink to pay for a rental bond.
46There is uncertainty, however, about your movements on release because it is highly probable that an application will be made for your extradition to Queensland as a result of outstanding arrest warrants from that State.
47I now turn to you, Mr Wetzel. Again as I noted earlier, you are now aged 28 and you were 26 when this offending occurred in July 2017.
48You also have an extensive criminal record, which commenced in the Ballarat Children's Court in July 2010 when, at the age of 19, for drink-driving and other driving offences you were put on a good behaviour bond for twelve months and you lost your bike and car licences for ten months.
49On the same day, in the Ballarat Magistrates' Court you were given six months’ detention in a Youth Training Centre for aggravated burglary and other dishonesty offences.
50Less than a month later you were convicted and fined $450 for failing to answer bail and hindering police.
51Thereafter convictions have been recorded in each of the years 2011, 2013, 2015, 2016 and 2017 for offences including drug offences, burglary, theft, criminal damage, assault, drive whilst disqualified, intentionally cause injury, un-licensed driving and dealing in property suspected of being the proceeds of crime.
52In April 2017 - your last court appearance before this current offending - you were given 150 days’ imprisonment, an 18-month community correction order and a $700 fine for offending including burglary and damaging property.
53You actually commenced the current offending less than two months after your release from that sentence. Your offending on this occasion is aggravated by the fact that at the time of the offending you were subject to the community correction order which you received in April 2017.
54Whilst you have had the benefit of a caring family, you also have experienced a difficult early life.
55You are one of five children and your parents separated when you were an infant. Your mother raised the children largely on her own and your father had little to do with you. You enjoy a good relationship with your mother and got to know your father better as you got older. You also have regular support from your siblings and a close and supportive relationship with your sister who is prepared to assist you with accommodation on your eventual release from prison.
56Your early difficulties more directly relate to your intellectual disability, which has resulted in early learning difficulties with reading, writing and speaking. You had to have surgery to assist your speech. You attended a special school in Ballarat where you remained until withdrawing from organised education entirely in Year 8.
57You have worked from time to time with your father assisting in unloading containers at the docks.
58For several years you have received the Disability Pension and have been further diagnosed as suffering from Anxiety and Depression.
59You also have a history of drug addiction, commencing with cannabis from age 13 and graduating to methamphetamine from age 22. Whilst in custody you have been medicated on methadone to assist with addiction to opiates also taken in the past.
60Your mother has provided a letter to the court outlining issues in your past and communicating your intentions to get a job and live a quiet life on your release.
61Now, the conduct of each of you can be described appropriately only as appalling. Both of you have engaged in the very dangerous act of seeking to evade police by trying to outrun a police pursuit. This behaviour puts both the police personnel and members of the public at enormous risk of serious injury or death. Children can often be included as innocent victims. The moral culpability for such offending is high.
62In your case, Mr Scouller, your criminal conduct was aggravated by the fact that you were driving a stolen car to which you had attached stolen numberplates from another car. In your case, Mr Wetzel, you were also driving a stolen car, although there is no evidence that you had in fact committed that theft, and at the time of the driving you were subject to a community correction order imposed only some two months earlier.
63The offending of each of you was compounded by the theft of petrol on several occasions, and in your case, Mr Scouller, by the retention of stolen goods, by the obtaining of money from a bank account by a fraudulent digital transfer and by the theft of a second vehicle.
64In mitigation, I accept the matters submitted on your behalf by your respective legal representatives.
65In your case, Mr Scouller:
· your plea of guilty and the time at which it was entered,
· your disadvantaged early life,
· your relative youthfulness at 22 at the time of offending and age 24 now,
· your longstanding history of drug and alcohol use,
· the extensive time that you have been on remand, the conditions of that remand and the commitment you have given to rehabilitative courses whilst in custody, and
· your isolation in custody, without support from family or friends.
66In your case, Mr Wetzel:
· your plea of guilty and the time at which it was entered,
· your disadvantaged early life and personal disadvantage of the circumstances,
· your longstanding history of drug and alcohol use,
· the extensive time that you also have been on remand, the conditions of that remand and the commitment you have also given to rehabilitative courses whilst in custody, and
· the support that you have from your family, which will assist in your rehabilitation.
67You have each now been in prison, in remand custody, for these offences for just two days short of two years. I accept the submissions of each of your counsel and the prosecution that the time in remand custody effectively equates with appropriate sentencing disposition in each of your particular circumstances.
68Mr Scouller, could you please now stand.
69On Charge 1 of handle stolen goods, you are convicted and sentenced to 3 months’ imprisonment.
70On Charge 2 of obtain financial advantage by deception, you are convicted and sentenced to 9 months’ imprisonment.
71On Charge 3 of theft of a motor car, you are convicted and sentenced to 12 months’ imprisonment.
72On Charge 4 of handle stolen goods, you are convicted and sentenced to 8 months’ imprisonment.
73On Charge 5 of theft of petrol, you are convicted and sentenced to 2 months’ imprisonment.
74On Charge 6 of dangerous or negligent driving while pursued by police, you are convicted and sentenced to 13 months’ imprisonment.
75On Charge 7 of theft, again of petrol, you are convicted and sentenced to 2 months’ imprisonment.
76On Charge 8 of theft of a motor car, you are convicted and sentenced to 12 months’ imprisonment.
77On Charge 9 of theft of petrol, you are convicted and sentenced to 60 days’ imprisonment.
78On Summary Charge 13 of fail to stop a motor vehicle upon police request, you are convicted and fined $200.
79Charge 6 is the base sentence,
80I direct that 2 months of each of the sentences imposed on Charges 2, 3 and 8, 4 months of the sentence imposed Charge 4 and 28 days of the sentence imposed on Charge 9 be served cumulatively on the sentence imposed on Charge 6 and upon each other. The sentences are otherwise concurrent.
81The total effective sentence is 23 months and 28 days’ imprisonment, which is 728 days in total.
82The sentence starts today.
83As to this term of imprisonment, as I noted earlier, you were remanded on this matter on 7 July 2017 and have served 728 days in remand custody, not including today. So pursuant to s.18(4) of the Sentencing Act 1991, I declare that the period of 728 days, not including today, be reckoned as time already served under the sentence and I direct that the fact of this declaration and its details be noted in the records of the court.
84Now I note that since the pre-sentence detention equals the term of imprisonment, it is my intention by the sentence that I have imposed that
Mr Scouller is effectively eligible for release from custody today. The term of imprisonment has actually been served by the taking into account of the pre-sentence detention.85So do the custody officers understand that?
86For the purposes of s.6AAA of the Sentencing Act 1991, but for your plea of guilty, the total effective sentence over all charges that would have been imposed is a term of imprisonment for four years with a non-parole period of three years.
87I note that your theft Charges 3 and 8 involve a motor vehicle and this has enlivened s.89(4) of the Sentencing Act. Upon conviction on Charge 6 of dangerous driving when pursued by police I am also required, pursuant to s.89(3) of the Sentencing Act, to cancel any licence and disqualify you from obtaining a further one for a period of not less than twelve months.
88Pursuant to those sections, on each of those charges I further order that any driver's licence that you hold is cancelled and that you are disqualified from obtaining any such licence for a period of two years, effective from 7 July 2017. Those cancellation orders are concurrent.
89I have not extended the licence cancellation beyond the time of your serving a prison sentence on the basis that I want the sentence itself to reflect the seriousness of the offending and the purpose for disqualification, but to extend it beyond the time of your release from custody would unnecessarily impose restrictions on your capacity for rehabilitation.
90You may be seated.
91Mr Wetzel, could you please now stand.
92On Charge 1 of theft, you are convicted and sentenced to 2 months’ imprisonment.
93On Charge 2 of handle stolen goods, you are convicted and sentenced to 15 months’ imprisonment.
94On Charge 3 of dangerous or negligent driving while pursued by police, you are convicted and sentenced to 15 months’ imprisonment.
95On Charge 4 of theft, you are convicted and sentenced to 60 days’ imprisonment.
96Charge 3 is the base sentence.
97I direct that 8 months of the sentence imposed on Charge 2 and 28 days of the sentence imposed on Charge 4 be served cumulatively on the sentence imposed on Charge 3 and upon each other. The sentences are otherwise concurrent.
98The total effective sentence is 23 months and 28 days’ imprisonment, which is 728 days in total.
99The sentence starts today.
100In your case also, as to this term of imprisonment, as I noted earlier, you were remanded on this matter on 7 July 2017 and have served 728 days in remand custody, not including today. So pursuant to s.18(4) of the Sentencing Act 1991, I declare that the period of 728 days, not including today, be reckoned as time already served under the sentence and I direct that the fact of this declaration and its details be noted in the records of the court.
101I note that since the pre-sentence detention equals the term of imprisonment, it is my intention by the sentence that I have imposed that Mr Wetzel be released from custody today. The term of imprisonment has actually been served by the taking into account the pre-sentence detention.
102That should be understood by the custody officers.
103For the purposes of s.6AAA of the Sentencing Act 1991, but for your plea of guilty, the total effective sentence over all charges that would have been imposed, in your case also, is a term of imprisonment of four years with a non-parole period of three years.
104Upon conviction on Charge 3 of dangerous driving when pursued by police, I am required by s.89(3) of the Sentencing Act to cancel any licence and disqualify you from obtaining a further one for a period of not less than twelve months. For the same reasons that I expressed in relation to Mr Scouller pursuant to that section, I order that any driver's licence that you hold is cancelled and you are disqualified from obtaining any such licence for a period of two years effective from 7 July 2017.
105You may be seated.
106I mention to counsel, as a result of those orders, communication by notice has to be given to each of the prisoners. Ordinarily that is sent to them, but in light of the circumstances of the uncertainty of address, they will be provided to you now and last, if I leave the Bench, if everyone can just remain for a moment, so that those notices can be formally handed to the prisoners today. Apart from that, are there any other matters, Mr Hevey or counsel?
107MR HEVEY: No thank you, Your Honour.
108MS ANDERSON: No, Your Honour.
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