Director of Public Prosecutions v Singh

[2019] VCC 1354

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-00744

DIRECTOR OF PUBLIC PROSECUTIONS

v

HERDEEP SINGH

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JUDGE:	HIS HONOUR JUDGE CAHILL
WHERE HELD:	Melbourne
DATE OF HEARING:	15 August 2019
DATE OF SENTENCE:	22 August 2019
CASE MAY BE CITED AS:	DPP v Singh
MEDIUM NEUTRAL CITATION:	[2019] VCC 1354

REASONS FOR SENTENCE
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Subject: Burglaries and theft
Catchwords: three commercial premises – $177,000 goods stolen – guilty plea – part of an organised gang – role of lookout – strong family support – drug addiction – risk of deportation
Legislation Cited:
Cases Cited: Morgan v The Queen [2013] VSCA 33, Jomaa v The Queen [2014] VSCA 103, Elakkoumi v DPP [2017] VSCA 186, DPP vBrittain & Nguyen [2018] VCC 1746
Sentence: 21 months imprisonment – 15 months non-parole period – PSD 357 days

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr G. Martin
For the Accused	Mr A. Halphen

HIS HONOUR: 

1Herdeep Singh, you have pleaded guilty to three charges of burglary, three charges of theft and two charges of possessing a drug of dependence, heroin and methylamphetamine.  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. 

2On 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.  That conduct constitutes the offending in Charges 7 and 8.

3On 6 August 2018, you again with others, broke into FQ Trinity and stole baby formula and other items valued at $24,000 and that conduct constitutes the offending in Charges 15 and 16. 

4On 30 August 2018, you again with others, broke into Sincare Health Care at Mount Waverley, where you stole pallets of baby formula and vitamins valued at $90,000.  And that conduct constitutes the offending in Charges 17 and 18.

5CCTV film at the premises showed a white Isuzu truck was used to take the stolen goods away.  Later, on the morning of 30 August 2018, police located the Isuzu truck in the driveway of a St Alban's home, and suspecting it contained stolen goods, sat off it.  When you arrived at that address in a car with another person, police arrested you.  You had a phone, $150 in cash, a driver's licence which was not in your name, a small bag containing heroin, which is the conduct constituting Charge 20, and another small bag containing methylamphetamine, which is the conduct that constitutes the offending in Charge 21.

6Police found the keys to the truck on the other person. The truck contained goods stolen from Sincare.  After your arrest, you were charged and remanded in custody where you have remained until this day. 

7At each of the three burglaries, you were with an associate, Gurinder Gil. 

8You have admitted a criminal record.  You have eight dishonesty convictions for burglary, theft, attempted theft and dealing with property suspected of being proceeds of crime from Magistrates' Court appearances on 8 June 2017, 9 June 2017 and 14 December 2017.

9You also have 11 drug convictions for trafficking heroin, possess heroin and meth amphetamine and use heroin from the same court appearances.  You served nearly eight months gaol for the offences for which you were convicted on 14 December 2017.  Some of those offences contravened an earlier community correction order, which was imposed on 9 June 2017, for traffick heroin and other drug and dishonesty offences.  In this Court, on 11 May 2018, following a successful sentence appeal, you were released on a community correction order for 24 months.  You reoffended less than two months later.

10Mr McGarvey, who appeared on your behalf, told me you were born in the Punjab, India on 16 July 1987.  You were raised in a middle-class family and, when you left school, you enrolled in a Bachelor of Arts course at the Punjab University.  There, you were introduced to opium which you consumed in an edible form.  To remove you from those influences, your parents sent you here to study.  You arrived in Australia in June 2009 to study but dropped out in 2011.  While you were studying you drove taxis and did so for six years.  Another driver introduced you to heroin and you began smoking it regularly.

11You met your wife, who supported you in court, through your sister, who lives here.  You married in 2016.  I was told your wife knew of your heroin addiction and, with her help, in 2016 you completed a short detox program at Footscray Hospital.  You remained drug free for only three months.  You worked casually washing cars for a car rental company but relied substantially on your wife, who operates a beauty salon, and your parents, who have remained in India, for financial support.

12At the time of your offending, you were aged 31 years.  You were living with your wife, who is a permanent resident, and her teenage son.  I was told you have a good relationship with him.  You had held a partner's visa which had expired before you offended.  In a reference, Exhibit S2, your wife wrote, despite your addiction and consequential offending, she has stuck by you.  She visits you in prison regularly and struggles with your absence.  You have told her you are sorry for what you have done and for the difficulties your absence has caused her. 

13All your offending, prior and current, has occurred in the context of your heroin and methamphetamine use. 

14The burglaries were well planned and targeted milk formula for sale overseas.  I was told you were recruited as a lookout for which you received small amounts of money and some drugs. 

15On remand, you have been detained at Ravenhall Correct Centre.  You have responsible and trusted work as a billet.  Your wife and sister visit you regularly.  Your parents came to Australia in February to see you.  You candidly instructed Mr McGarvey, in your early weeks in remand custody, you were not drug free, but you have been sober for eight months now, your longest period of abstinence since 2011.

16Mr McGarvey in written submissions, which were Exhibit S1 and supplementary oral submissions, relied on the following factors in mitigation.  Firstly, your early guilty plea; secondly, your family support; thirdly, your long-standing drug addiction; and fourthly, your almost inevitable deportation. 

17I accept, to your benefit, your plea of guilty has high utilitarian value and is evidence of your acceptance of responsibility for your actions and some remorse.  I accept the ongoing support of your wife and sister here, and your parents in India, is a protective factor in favour of your rehabilitation.  I accept because you offended to feed your addiction, which started when you were a student and in relatively benign circumstances, your drug addiction is a modest consideration in your favour.

18In relation to the relevance of the risk of deportation in the sentencing process, the Court of Appeal recently stated in the case of Stephen Loftus v The Queen [2019] VSCA 24:

'The potential for an offender to be deported after the completion of sentence is relevant to sentencing in two ways.  First, the prospect of deportation renders imprisonment more onerous because the prisoner will face the prospect of deportation.  This, in turn, may render the incarceration more difficult.  Secondly, the deportation, should it occur, would constitute an additional punishment because it destroys the opportunity to settle permanently in this country'.

19You remain in Australia on a bridging visa, which will expire on completion of your sentence.  The Department of Home Affairs has informed you, at the expiration of your visa you will be a non-lawful citizen and liable to detention and removal from Australia, and that letter was Exhibit S3.

20I accept your deportation is all highly likely and the two limbs referred to in Loftus are apposite to you. 

21I have moderated the sentences I will impose to take all these matters into account.  Mr McGarvey acknowledged imprisonment is the only appropriate disposition and submitted I should impose a gaol term without fixing a non-parole period. 

22Mr Barrington, who appeared for the prosecution, submitted your involvement in a well organised gang which targeted businesses for specific products of high value, $177,000 in your case, was serious offending.  He submitted while breaking into private homes is generally seen as more heinous than breaking into business premises, the planning and professionalism attendant to these commercial burglaries tended to close the gap in seriousness between the two classes of offences.  He submitted that you were subject to a community correction order when you committed these offences, is an aggravating feature.  He also submitted taking into account your criminal history of dishonesty and drug offending, your prospects of rehabilitation are guarded.

23I accept the force of these submissions and have taken them into account. 

24Mr Barrington submitted imprisonment is the only appropriate disposition. He referred me to Court of Appeal decisions in Morgan v The Queen [2013] VSCA 33, Jomaa v The Queen [2014] VSCA 103, and Elakkoumi v DPP [2017] VSCA 186 and a sentence DPP vBrittain & Nguyen [2018] VCC 1746 in this court. They are all instances of commercial burglaries and, whilst there are differences in the gravity of offending and the subjective circumstances of the offender, between them and your case, I have found them useful as a yardstick to guide me to an appropriate sentence.

25I have concluded your prospects of rehabilitation are guarded, but nevertheless realistic, provided you remain drug abstinent, and will be better served by the imposition of a sentence of imprisonment with a non-parole release period, because of the rehabilitation potential of parole, rather than the straight jail sentence for which Mr McGarvey contended. 

26In sentencing you, I will impose an aggregate sentence for the three burglary and three theft charges, because they form part of a series of offences of the same character.  I have had regard to the totality principle, that is, I have looked at the totality of your criminal behaviour to decide the appropriate sentence for all the offences.  Please stand, Mr Singh.

27By this 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 also look to the protection of the community and as well, your rehabilitation.  Taking into account the circumstances of your offending and its effects, your personal circumstances and antecedents, 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:

28On the three burglary charges, that is Charges 7, 15 and 17 and the three theft charges, that is Charges 8, 16 and 19, you are convicted and sentenced to an aggregate term of 21 months' imprisonment;

29On each of the charges of possess a drug of dependence, that is Charges 20 and 21, you are convicted and sentenced to one-month imprisonment;

30And accepting you committed the dishonesty offences to feed your drug addiction, I direct each of the two sentences be served concurrently with the aggregate term and each other.  So, your total effective sentence is 21 months' imprisonment and I fix a non-parole release period of 15 months.  I declare you have served 357 days of this sentence by way of pre-sentence detention.

31But for your plea of guilty I declare I would have sentenced you to 28 months' imprisonment and fixed a non-parole release period of 20 months.

32I make an order for disposal of the order of the items of property police seized in the terms of the order filed.  I make an order for forfeiture of a homemade pistol police seized, in the terms of the order filed.

33Because 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.  You may have a seat, Mr Singh.

34Mr Martin, are there any matters arising out of that?

35MR MARTIN:  No, Your Honour.

36HIS HONOUR:  Did I get the pre-sentence detention correct?

37MR MARTIN:  You did, Your Honour.  Yes.

38HIS HONOUR:  Thank you.  Mr Halphen, anything for your part?

39MR HALPHEN:  Nothing, Your Honour.

40Would you remove Mr Singh, please.

41(At this stage the accused left the court.)

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