Director of Public Prosecutions v Smith
[2025] VCC 651
•27 May 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE KOORI COURT DIVISION | Revised Not Restricted Suitable for Publication |
CR-23-01806
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| Jayden Smith |
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JUDGE: | HIS HONOUR JUDGE JOHNS |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 20 May 2025 |
DATE OF SENTENCE: | 27 May 2025 |
CASE MAY BE CITED AS: | DPP v Smith |
MEDIUM NEUTRAL CITATION: | [2025] VCC 651 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW - Sentence
Catchwords: Burglary – Theft of firearms – Theft of a motor vehicle – Damage property - Plea of guilty – Relevant summary offences – Koori Court Jurisdiction -
Cases Cited:
Sentence:Total effective sentence of 15 months in combination with an 18 month CCO.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms S. Tamburro | Office of Public Prosecutions |
For the Accused | Mr. S Ghattas | Angus Cameron Lawyers |
HIS HONOUR:
1Jayden Smith, you have pleaded guilty before me in the Koori Court to a charge of burglary, a charge of theft of firearms, three charges of theft of a motor car, a charge of intentionally damaging property and a charge of negligently dealing with proceeds of crime.
2You have also pleaded guilty to relevant summary offences, committing an indictable offence whilst on bail, and 3 charges of driving whilst unlicensed .
3The maximum penalty for theft of a motor vehicle is 10 years' imprisonment. For burglary, the maximum penalty is 10 years' imprisonment, for theft of firearms the maximum penalty is 15 years' imprisonment, damaging property 10 years, dealing with proceeds of crime 5 years.
4You have admitted prior convictions and they are relevant prior convictions, but your history is considerably more confined than that of your co-accused Mr Janitis. The period you have been in custody on remand is the longest period you have experienced in custody, by some margin.
Circumstances of Offending
5The circumstances of your offending are set out in Exhibit A which is the Summary of Prosecution Opening for Plea dated 3 April 2025. Exhibit A forms part of these Reasons for Sentence and I won’t repeat the detail contained therein.
6I also sentenced your older co-offender Mr Janitis, and I refer to that decision; DPP v Peter Janitis [2024] VCC 1316.
7You and your co-offender forced open a gate, damaging the padlock latch and you went to the garage area, pried open the garage roller door causing damage to it and entered the garage. That is the burglary charge and there you stole 10 firearms from the safe using a grinder to remove padlocks from the safe. That is the lengths you went to. The weapons stolen included a Beretta, a Bentley, a Stoeger Condor shotgun, a Remington 700 Centrefire rifle, a Tikka Centrefire rifle, a Browning X-Bolt, a Winchester Rimfire rifle, a Savage Mark 2 Rimfire rifle, a Birmingham Small Arms Company sportsman rifle and an air rifle.
8All but one of those guns remain in the community and that is a significant matter from a sentencing perspective. Only the Savage Mark 2 Rimfire rifle was recovered and that was because it fell from the vehicle apparently or fell from the container it was in whilst you were departing.
9You also engaged in a series of thefts of motor cars. You were unlicensed during these episodes. You were living a lifestyle of drug use and abuse and stealing motor cars for transport and to sleep in as you saw fit.
Objective Gravity
10The objective gravity of the offending before me is reflected in the maximum penalties of each of the offences committed.
11The theft of firearms seriousness is reflected in the maximum of 15 years' imprisonment, whereas theft simpliciter is a 10-year maximum and that is obviously reflective of the seriousness with which Parliament views breaking and entering to steal firearms, and also the community, and I must impose a sentence that denounces that conduct.
12A serious aspect of your offending is the fact that the majority of the stolen firearms are in the community. The nature of illicit firearms, firearms that are no longer where they should be and secured, is that they find their way into the hands of others who are going to use them for nefarious purposes. That is an obvious risk to community safety.
Personal Circumstances
13You are a 33 year old, some 13 years younger than your co-accused. You are an Aboriginal man, a Gunditjmara man and you are proud of your heritage and are connected to your culture. You also have connections to the Gunai /Kurnai people. Your Aboriginality comes through your maternal line.
14You are very involved in Koori activities in custody.
15You are the eldest of five siblings.
16Your parents separated in your primary school years, primarily due to your mother’s struggles with heroin addiction.
17You lived with your father until you were in grade 2 when your mother took you to live in Narooma until the end of the school year.
18You resumed living with your father the following year.
19You had intermittent contact with your mother thereafter.
20Your mother has now been sober for around 10 years and this has allowed you to rebuild a strong relationship with her and she is a strong and supportive presence in your life.
21You had a strong connection with your maternal relatives throughout childhood and you engaged in cultural activities.
22In custody you have maintained cultural engagement through programs Yarn Bark, Dardi Munwurro and Own Your Decisions. You have participated in NAIDOC activities, Survival day and Reconciliation programs, you are involved with Koori art and Murnghu-Dhal (see letter of Tiana Koehrer).
23You are an Aboriginal cultural programs billet in custody.
24Your most significant relationship was of six years duration, you and your partner had a daughter. That relationship broke down due to your illicit substance use and you lost access to your daughter.
25I received a psychological report from Gina Cidoni which notes your vulnerability to drug use and also notes that you suffer from a major depressive disorder and anxiety. These conditions, together with relationship breakdown, and loss of relationship with your daughter, contribute to your vulnerability to drug use.
26At the time of the offending you were experiencing homelessness, drug relapse, depression and anxiety, all contributing to your poor decision-making.
27In custody you have done all that you are able to to engage in a productive way and complete rehabilitative programs.
Major matters in Mitigation
28You participated in the Sentencing Conversation, and you participated fully. I take your participation into account. It is recognised that participation in the Koori Court process is a more onerous and challenging process than in the general list process.
29It was particularly challenging for you, and you were challenged by Uncle Jim Berg and Uncle Trevor Gallagher.
30Your sister Layla supported you during the Sentencing Conversation as did Bryce Taylor, Aboriginal worker from Ravenhall. Mr Taylor spoke of your contribution and attitude in custody in a very positive way. It is unusual for someone from the prison to come and speak on a person’s behalf at Court. I place considerable weight on what he had to say.
31I am satisfied that you are genuine about your desire to reform and that you have reasonable prospects of rehabilitation.
32You have pleaded guilty. You are entitled to a significant discount due to your pleas of guilty in respect of these matters.
33I must also have regard to parity. I sentenced your co-offender to 18 months for the burglary and two years for the theft of firearms. He was sentenced in respect of other matters unrelated to your offending, including perjury.
34His total effective sentence was two years and seven months imprisonment with a non-parole period of 19 months.
35Due to the differences in role, your younger age, your more limited history and with regard to what I consider to be your reasonable prospects of rehabilitation, I have concluded that the principle of parity will not be offended if I sentence you to a combination sentence with a period to be served that is less than Mr Janitis’ non-parole period.
36General deterrence must be a significant factor, particularly for the theft of firearms offence. Denunciation and community protection are concerns as well. I have to balance those factors alongside what I have concluded in respect of your prospects of rehabilitation.
Sentence
37I now sentence you as follows.
38On Charge 1 theft of a motor vehicle you are sentenced to 4 months imprisonment.
39On Charges 2, 3 and 4 I sentence you to an aggregate sentence of imprisonment in combination with a CCO.
40I sentence you to 15 months imprisonment in combination with an 18 month Community Corrections Order in respect of those charges.
41On charge 5 you are sentenced to 4 months imprisonment.
42On Charge 6 you are sentenced to 4 months imprisonment.
43On Charge 7 you are sentenced to 2 months imprisonment.
44On the bail offence 1 months imprisonment.
45On the three unlicensed driving charges you are fined an aggregate amount of $1000.
46Pursuant to s.18 Sentencing Act 1991 I declare that you have served 416 days as pre-sentence detention.
47Pursuant to s.6AAA were it not for your pleas of guilty I would have sentenced you to a total effective sentence of four years with a non-parole period of two and a half years.
48In respect of charges 1,5 and 6 I make an order against your licence.
49Your licence is cancelled and you are disqualified from obtaining another for a period of 6 months.
50The CCO will be for 18 months duration, it will involve 100 hours of unpaid community work.
51You will also be subject to supervision.
52You will also be required to attend for drug and alcohol assessment and treatment as directed.
53You will be required to attend for mental health assessment and treatment as directed.
54I make ordes for forfeiture and disposal.
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