Director of Public Prosecutions v Singh

[2019] VCC 1607

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-01674

DIRECTOR OF PUBLIC PROSECUTIONS

v

NAVJINDER SINGH

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JUDGE:	HIS HONOUR JUDGE CAHILL
WHERE HELD:	Melbourne
DATE OF HEARING:	1 October 2019
DATE OF SENTENCE:	3 October 2019
CASE MAY BE CITED AS:	DPP v Singh
MEDIUM NEUTRAL CITATION:	[2019] VCC 1607

REASONS FOR SENTENCE
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Subject:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Clancy	Office of Public Prosecutions
For the Accused	Mr E. Clark	James Dowsley & Associates

HIS HONOUR:

1Navjinder Singh, you have pleaded guilty to five charges of theft and three charges of burglary. 

2You have also pleaded to two summary offences under the Bail Act.

3In March 2018 you were employed to drive a small Isuzu truck.  You drove the truck around for a few days and, when you failed to return it, your employer reported the truck stolen.  It was found by police on 27 June 2018.  That conduct constitutes the charge 1, theft.

4In April 2018 you hired a Toyota Camry motor car for three days and failed to return it.  On 4 June the car was recovered with false number plates attached to it.  Your theft of that car constitutes the conduct charged in Charge 2, theft.

5Then, between 29 June 2018 and 30 August 2018, you were involved, with others, in three burglaries carried out at night on commercial premises which were targeted for baby formula and vitamins. 

6On 29 June 2018 you, with others, broke into Blue Sky Express at Preston and stole parcels of baby formula and vitamins valued at $63,000, Charges 3 and 4.

7On 6 August 2018 you, with others, broke into FQ Trinity Pty Ltd and stole baby formula and vitamins valued to $24,000, Charges 5 and 6.

8On 30 August 2018 you, with others, broke into Sincare Health Care at Mount Waverley where you stole pallets of baby formula and vitamins valued at $90,000, Charges 7 and 8.

9CCTV film showed a white Isuzu truck was used to take the stolen goods away from Sincare.  Later on the morning of 30 August 2018 police located the Isuzu truck in the driveway of your St Albans home and, suspecting it contained stolen goods, sat off it.  It was driven to Laverton North where police continued to watch it until you arrived in a car with a co-offender, Herdeep Singh.

10Police arrested the two of you.  You had $1660 in cash and the keys to the truck on you.  The truck contained most of the goods which had been stolen from Sincare. 

11You committed each of the three burglaries with Herdeep Singh, and another man, Gurwinder Gill.

12When police searched your home, which was occupied by you and others, they found baby formula, vitamins, milk powder and beauty products in the garage.  They also found two identification cards and a bank card in names not yours and a folder and book containing lists and transaction details in the house.

13It is not clear whether any of the items were yours or belonged to others.  When police interviewed you, you answered their questions.  You made some admissions in relation to your offending but you also gave some evasive answers.  You admitted your involvement in the Sincare burglary on
30 August.

14You said you were a heroin addict and had been using heroin for a couple of months.  You said you used it every day when you had the money.  You said you weren't studying or working.  Police were aware that you were living in Australia on a student visa.

15In relation to the Sincare burglary you said a friend, Gary Singh, offered you $1500 to load a truck.  You said he picked you up and you went with him and others to premises near the Monash Freeway, which was the Sincare location, where you were told to load boxes into the truck.

16You said that after the truck was loaded Gary told you to take the truck to your place to await his call.  You did and, when he called you, you took it to the place where he directed you.  You were arrested shortly afterward.  You said you had not done anything like this before, which was not true.

17Police did not question you about your involvement in the two earlier burglaries. 

18In relation to the theft of the van from your employer you said there was a misunderstanding about its return and when you heard he had reported it stolen to police you abandoned the vehicle because you were scared.

19In relation to the theft of the rented motor car you said you rented the car for a friend who told you he had returned it. 

20After police interviewed you, you were charged and released on bail. 

21On 21 May 2019 you were arrested in New South Wales in relation to other offending.

22In July 2019 you were brought to Victoria where, on 8 July 2019, you were re-arrested in relation to these matters and remanded in custody on them.  Soon after, on 17 September 2019, following plea discussions, you pleaded guilty to the charges for which you are now to be sentenced.

23You spent a week in immigration detention before you were put in gaol. 

24You have no criminal record. 

25You were 23 years old when you committed these offences.  You are now 24.

26You were born in Punjab, India.  Your father is a police officer and your mother a school teacher.

27You have a younger brother who is studying in Canada.  You completed your schooling to Year 12 equivalent and in 2014 you obtained a visa to study in Australia and came to Melbourne where you lived with an uncle and aunt.  You enrolled in a business management course and, while you worked for your uncle as a forklift driver and truck driver in his transport and restaurant businesses, you completed a diploma and certificate IV in business management.

28You felt your uncle was under paying you and, towards the end of 2017, you had a falling out with him which led to you being told to leave his home.  You went to live with a friend who introduced you to heroin.  You soon became addicted to the drug and, to obtain money to feed your habit, you resorted to this offending.

29When your original visa expired you applied for another which expired in the latter part of 2018. 

30You are currently detained at Ravenhall Prison.  You are a mainstream prisoner.  You have worked in the kitchens.  Ms Clark, who appeared on your behalf, described you as an Uber food driver within the prison environment.

31You have had an enforced period of drug abstinence whilst in custody and you have engaged in drug education programs.  You are prescribed 40 milligrams of methadone daily for your addiction, and for the last month, in response to some delusional episodes which appear to be related to your drug abuse, you have been given an anti-psychotic medication.

32You are otherwise well. 

33Ms Clark told me you are isolated in prison.  You have had no visitors.  You have had phone contact with your parents who are in India and friends who live in New South Wales.  You hope to put friends, made from non-drug taking cultural links, in Victoria on your prison contact list.  Most of your parental contact is with your mother.  Your father is angered by the shame and embarrassment your offending has caused to your family and you.  You are acutely aware of it.

34Between 2 and 26 November 2018 you failed to report to Sunshine police station as your bail conditions required (summary Charge 19), and on 29 November 2018 you failed to appear at the Melbourne Magistrates' Court to answer your bail (summary Charge 23).

35A warrant was issued for your arrest.  Ms Clark informed me, after your father's hostile response to your arrest and charge in Victoria, you panicked and fled to New South Wales.  In May, New South Wales police arrested you and charged you in relation to a burglary.  That matter is to be dealt with in a New South Wales local court.

36In comprehensive written and oral submissions, Ms Clark relied on the following factors in mitigation of penalty:

37Firstly, your early plea of guilty for its utilitarian value, entered without a contested committal.

38Secondly, your remorse evidenced by your guilty plea and your cooperation, although limited, with police when you were arrested. 

39Thirdly, your favourable prospects of rehabilitation taking into account your lack of prior convictions, your relative youth and your enforced abstinence from drug use which fuelled your offending.

40Fourthly, your likely deportation upon completion of the sentence I will impose.

41She accepted a term of imprisonment is the only disposition available to the court in the circumstances of your case.  You are not an Australian citizen and do not hold a valid visa.  The term of imprisonment I will impose will likely trigger the mandatory deportation provisions of the Migration Act.

42Ms Clark submitted your sentence should be moderated for the risk of your deportation, firstly, for the burden of the uncertainty you will face regarding your future, and, secondly, for the additional punishment you will suffer if you are removed from Australia which has been your home for four years prior to your offending.

43I accept the force of her submissions and will take them into account to moderate the sentence I would otherwise impose. 

44Herdeep Singh committed the burglaries and thefts with you.  I sentenced him to an aggregate term of 21 months' imprisonment for his offending. For him, I fixed a minimum non-parole release period of 15 months. 

45Like you, he was recruited as hired labour and, like you, he offended to obtain money to buy drugs to feed an addiction.  Ms Clark argued I should impose upon you a sentence lower than the sentence I imposed on Hardeep Singh taking into account you were 23 and he was 31 when the two of you offended and you had no criminal record whereas he had convictions for serious criminal offending and offended in this instance while he was subject to the conditions of a community correction order.

46Ms Clark submitted I should impose on you a total effective sentence lower than the total effective sentence imposed on Herdeep Singh who also pleaded guilty to two minor drug possession charges for which I imposed terms of imprisonment of one month but ordered them to be served concurrently with the aggregate sentence for the burglaries and thefts.

47Ms Clancy, who appeared for the prosecution in helpful submissions, accepted my characterisation of the roles of Gill, Herdeep Singh and you as hired labour and not principals in what was otherwise a sophisticated criminal syndicate.

48She also accepted your early plea of guilty, your relative youth, your lack of criminal history and the risk of deportation are factors in mitigation of your penalty.  She accepted the parity principle would militate in your favour for an aggregate sentence lower than Herdeep Singh's on the burglaries and thefts at the three commercial premises, but in respect of your total effective sentence she submitted you fall to be sentenced for the additional offences of theft of motor car, one from your employer and the other from the rental company, and neither of a minor nature, which would necessitate additional punishment.

49You are also to be sentenced for two bail contraventions. 

50She did not contend your total effective sentence should be greater than Herdeep Singh's and submitted it was within proper sentencing discretion for me to impose a lesser total effective sentence upon you for the totality of your offending.

51I find specific deterrence is less significant in your case than Herdeep Singh's and your prospects of rehabilitation are more favourable.  Accordingly I will impose upon you a lesser aggregate term of imprisonment for your participation in the burglaries and thefts on the commercial premises.

52However, I also find that your thefts of the two motor vehicles constitute additional offending which requires additional punishment.  As I did with Herdeep Singh, I will impose an aggregate sentence for the three burglaries and associated thefts, Charges 3 to 8, because they form part of the series of offences of the same character.

53I will impose additional terms of imprisonment on the remaining two theft charges and the two bail contravention charges and, because you are to be sentenced for multiple offences, I have had regard to the totality principle. 

54By orders for concurrency and cumulation, I have reached a total effective sentence which properly reflects the totality of your criminal offending. 
Mr Singh, please stand.

55By the sentence I must denounce your conduct.  I must punish you and deter you and others from committing crimes of the same or similar kind.  I must look to protection of the community and also to your rehabilitation.  Taking into account the circumstances of your offending and its effects and your personal circumstances and antecedence, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you I sentence you as follows.

56On the three burglary charges, that is Charges 3, 5 and 7, and the three theft charges, that is Charges 4, 6 and 8, which relate to you breaking and entering into commercial premises, you are convicted and sentenced to an aggregate term of 15 months' imprisonment.

57On Charge 1, theft of the car from your employer, you are convicted and sentenced to three months' imprisonment and I direct that one month of that sentence be served cumulatively on the aggregate term and also the other sentences which I will impose.

58On Charge 2, theft of the rental car, you are convicted and sentenced to three months' imprisonment and I direct that one month of that sentence be served cumulatively on all other charges.

59In relation to the summary Charge 19, contravention of the reporting condition of your bail, you are convicted and sentenced to one months' imprisonment concurrent with the sentences I have imposed on all other offences and on Charge 23, fail to answer bail, you are convicted and sentenced to two months' imprisonment, one month of which is to be served cumulatively on the remaining charges.

60So, Mr Singh, your total effective sentence is 18 months' imprisonment, and to mitigate your punishment and advance your chances of rehabilitation I fix a non-parole release period of 12 months' imprisonment.  I declare you have served 87 days by way of pre-sentence detention and I declare but for your plea of guilty I would have sentenced you to 28 months' imprisonment and fixed a non-parole release period of 18 months.

61In consequence of your convictions on Charges 1 and 2 which relate to the theft of a motor vehicle, I order that all licences and permits held by you under the Road Safety Act be cancelled and you be disqualified from obtaining any licence or permit for a period of 12 months from 8 July 2019.

62I make an order for forfeiture of the sum of $1660 in cash.  I make an order for the disposal of the baby formula, vitamins and cosmetics and other items, set out in the schedule, seized from your home following your arrest.

63Because I accept you will almost inevitably be removed from Australia when you have completed your prison sentence I see no efficacy in making an order under s.464ZF for the taking of a forensic sample from you.  Accordingly I decline to make the order because I am not satisfied that it is in the interests of justice to do so.

64You may have a seat, Mr Singh.  Mr Martin, any matters?

65MR MARTIN:  No, Your Honour.

66HIS HONOUR:  Thank you.

67MR MASELLI:  Nothing further, thank you, Your Honour.

68HIS HONOUR:  Thank you.  Remove Mr Singh please and adjourn the court.

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