Director of Public Prosecutions v Smith

[2024] VCC 585

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-23-01818

DIRECTOR OF PUBLIC PROSECUTIONS

v

MELISSA SMITH

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JUDGE:	Her Honour Judge Blair
WHERE HELD:	Melbourne
DATE OF HEARING:	10 April 2024
DATE OF SENTENCE:	30 April 2024
CASE MAY BE CITED AS:	DPP v Smith
MEDIUM NEUTRAL CITATION:	[2024] VCC 585

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – SENTENCE

Catchwords:              Theft – obtain financial advantage by deception – burglary – theft of firearms – firearms recovered – Bugmy – early plea of guilty – ongoing psychological difficulties – Verdins not satisfied – rehabilitation

Legislation Cited:      Sentencing Act 1991 (Vic)

Cases Cited:Benkic v The Queen [2019] VSCA 34; Barry v The Queen [2022] VSCA 94; DPP v Basic [2017] VSCA 376; Berichon v The Queen (2013) 40 VR 490; Markovic v The Queen [2010] VSCA 105; Worboyes v The Queen [2021] VSCA 169; Barnard (a pseudonym v R [2022] VSCA 42; DPP v Strange [2020] VCC 827; Ralph v The Queen [2022] VSCA 185; DPP v Dickson [2023] VCC 731; DPP v Cotchin [2018] VCC 1894; DPP v Clark [2018] VCC 583; DPP v Spurr [2018] VCC 1709; Boulton v The Queen [2014] VSCA 342.

Sentence:                  74 days imprisonment served by way of pre-sentence detention and a Community Correction Order for a period of 2 years

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr E. Ritli	Office of Public Prosecutions
For the Accused	Ms S. Buckley	Chester Metcalfe & Co

HER HONOUR:

1Melissa Smith, on 10 April 2024, you were arraigned and pleaded guilty on Indictment P10917126 to three charges of theft, one charge of obtaining financial advantage by deception, one charge of burglary, one charge of theft of firearm and a charge of being a prohibited person possessing a firearm.

2You also admitted your criminal record.

Circumstances of offending

3The summary of prosecution opening dated 27 January 2024 which details the agreed factual basis of your offending was read and tendered at your plea. In summary;

4Your co-accused in this matter is Scott Jackson, with whom you were in a relationship at the time. Some of your offending occurred in the presence of your two children. Mr Jackson is the father of your younger child.

5In the afternoon of 29 April 2023, you and Mr Jackson entered the Myer store at Ballarat Central. You both lingered in sections of the store, before leaving without paying for the following items: 2 Calvin Klein camera bags; 1 Calvin Klein crossbody bag; 2 Calvin Klein tote bags;  6 sunglasses; and 6 perfume bottles. These items had a total value of $3,994.00. Charge 1 – Theft.

6Later that same day, you and Mr Jackson entered the Rebel Sports store in Ballarat Central with your children and some other adults. You both selected various clothing items and placed them into a pram before leaving without attempting to pay. The total value of the items taken was $1,934.81. Charge 2 – Theft.

7Later that evening one of the victims parked his car outside his property. The next morning, he noticed the passenger door of his vehicle was unlocked and the car had been rummaged through. You and your co-accused took the following items: a Republic of Philippines issued passport; housekeys; and a wallet containing NAB, Latitude and Westpac bank cards. Charge 3 – Theft.

8The victim reported the theft and two detectives attended the scene later that day. Sometime after the attendance of the police the victim noticed and reported several unauthorised bank transactions on his bank card.

9Between 3.00am and 3.30am on 30 April 2023, you and your co-accused used this victim’s cards to make the following transactions: group electric scooter hire at Neuron Mobility for $10.89; car wash services at Brad Fisher for $12.30; and three (3) separate goods purchases from APCO Service Station totalling $187.78. Charge 4 – Obtain financial advantage by deception.

10On 29 April 2023, two other victims went to bed in their home in Ballarat Central. The next morning, one of the victim’s noticed that their garage door was half open and the handle to their gun safe was in the open position. The safe did not otherwise appear to be damaged – Charge 5 – Burglary.

11The victim looked inside the safe and noticed one firearm had been moved within the safe, two had been taken from the safe and placed to the side of the safe, whilst the following 6 were missing: 1 x Fabarm shotgun, serial number 193567; 1 x Lithgow centre fire rifle, serial number C35344; 1 x Winchester centre fire rifle, serial number 2555751; 1 x Lithgow 22 rim fire rifle, serial number 161706; 1 x Bruno 22 rim fire rifle, serial number 188449; and 1 x Browning 22 rim fire rifle, serial number 113026. Charge 6 – Theft of firearm and Charge 7 – being a prohibited person possessing a firearm.

12The victims also noticed that the car in the garage had been opened, but nothing had been taken. A fingerprint was taken from the window frame of the car, and it matched your right ring finger.

13On 1 May 2023, police were notified that you and Mr Jackson were around the Ballarat Railway Station. You and your co-accused, along with your 2 children and several bags, boarded a Melbourne bound train.

14The police arrested you and your co-accused at Bacchus Marsh Train Station. You were taken to the Geelong Police Station. The police searched your bags and found all of the items taken from Myer and Rebel Sport, as well as all the items taken from the first victim’s car.

15The six stolen firearms were also located by police. The police seized and searched your phone, and the phone of your co-offender where they found a number of texts believed to be related to the movement of the firearms for sale.

Nature and gravity of the offending

16The majority of your offending is capable of summary determination and is routinely dealt with in the Magistrates’ Court. It is charge 6, the theft of firearms that elevates your case to this court.

17Theft of firearms is a particularly serious species of theft.[1] Theft of such items increases the likelihood that firearms circulate illegitimately in the community and become useful in seriously dangerous criminal activity. By fixing the higher penalty of 15 years for this category of theft, as opposed to 10 years for theft simpliciter, Parliament has made clear the seriousness with which the theft of firearms is to be viewed.

[1] Benkic v The Queen [2019] VSCA 34.

18Mr Ritli for the prosecution acknowledged that all of the firearms stolen by you and your co-offender were ultimately located and seized by the police, however he submitted that this did not change the nature or gravity of your offending or reduce your moral culpability. Mr Ritli also submitted that the working capacity of the firearms was not logically relevant to the sophistication of the offending. He submitted that the firearms appeared to be the target of your offending as there was nothing else stolen and they were taken from a safe, this was a point he later conceded. Further Mr Ritli submitted that the burglary was committed on a residential property were the residents are entitled to feel safe. Notwithstanding that the burglary was confined to the garage he argued that it nevertheless remains a breach of the privacy and sanctity of the victims’ home.

19Your counsel Ms Buckley appropriately conceded that the theft of firearms was a particularly serious offence and was the most serious offence to which you had pleaded guilty. Further, she conceded that the higher penalty has its foundation in ensuring public safety and protection of the community. Ms Buckley submitted that in your case all six firearms stolen were located and seized by the police and therefore none of the firearms ever entered the community for circulation. Thus the risks contemplated in the authorities such as Benkic and Barry could never have materialised.[2]

[2] Ibid; Barry v The Queen [2022] VSCA 94.

20Further, Ms Buckley submitted you received no reward for the offending and you took no part in the correspondence concerning the potential sale of the firearms. This, she submitted, was not an example of the offence being committed as part of ongoing criminal or gang-related activity or for means of security or enforcement in the context of criminal activity.[3] Ms Buckley distinguished the theft of firearms in your case from cases where the purpose of the theft of firearms was criminal activity or a further specific criminal purpose. Offending with such a purpose would ordinarily attract a more severe sentence.[4] These factors were also relevant to the charge of prohibited person possess a firearm.

[3] DPP v Basic [2017] VSCA 376.

[4] Berichon v The Queen (2013) 40 VR 490, 496.

21Ms Buckley argued there was no evidence as to the working capacity of the firearms or whether they were loaded or otherwise. Further given your crude description of the firearms at [35] of the prosecution opening, Ms Buckley submitted it was clear that you had a lack of knowledge about firearms generally. She described your offending as unsophisticated.

22In my view, the recovery of the firearms is an important factor which puts your offending in a less serious category from cases where the stolen firearms were disposed  of and not located. I accept in your case there was no evidence of pre-planning such that I could find that the firearms were the target of your offending. It would appear that your offending was opportunistic in circumstances where there was no damage to the gun safe.

23Given the burglary was confined to the garage of the home I accept that it is less serious than a burglary where the living areas are entered. That is not to say, it is not a serious offence that would have left the victims feeling violated and insecure within their own home.

24Regarding the thefts from the shops and the obtaining financial advantage by deception, I accept the submission of your counsel that this was low level offending as evidenced by the relatively low value of the goods involved.

25Overall, I consider your offending to be opportunistic and unsophisticated. In my view your offending lacked planning as was clearly identified by the fact that you had stolen six longarm firearms and were left to travel with these, the other stolen goods, your belongings and 2 children on a v/line train. You were easily identified and apprehended by the police.

Personal circumstances

26You are currently 32 years old and were 31 at the time of this offending. You were raised in Croydon by your parents. Your father was a bricklayer and your mother worked in aged care. You have four siblings, none of whom have been in trouble with the law.

27Your upbringing was traumatic and troubled in the context of your parents’ history of alcoholism. They would often drink heavily in the family home leading to fights and violence towards each other. On occasion your mother was also violent towards you.

28When you were aged 12, your parents separated. Initially, you lived with your mother but were kicked out of home at the age of 13. This led to a period of homelessness and transience. Occasionally, your mother would take you back in, but this would not last long. Not surprisingly your relationship with your mother remains fractured. Your father was your main source of parental love and support, and you have maintained a close relationship with him.

29In terms of your schooling, you left at the conclusion of Year 8, after your behaviour became problematic during secondary school. Since that time, you have worked in different jobs, including for a truck parts manufacturer and in a pizza shop. At around the age of 18 you obtained your Certificate III in Children’s Services and worked in the childcare industry between the ages of 18 to 21 years. You left this work when you became pregnant with your first child Jai. You did not return to the workforce for some time but remained in the home caring for your two children. You returned to paid employment in 2021 but currently, you are not working and receive the parenting payment.

30You have had several intimate relationships that have usually involved drug use and domestic violence. Sadly, you have been both a child and adult victim of such abuse. You are currently single and live independently with your father and your two children, Jai aged 10 and Arabella aged 3. Arabella’s father is your co-accused Scott Jackson.

31You have longstanding polysubstance abuse issues. Your drug and alcohol use began in the context of the breakdown of your parent’s marriage and your mother telling you to leave the family home. Your homelessness brought you into contact with other drug users. Between the ages of 13 and 22, you used cannabis daily, whilst also using MDMA and amphetamine most weekends.

32From around age of 22, you developed a significant and concerning methamphetamine dependence, typically using this substance daily. This lasted until you were 28 and largely explains your prior criminal history.

33Since you were placed into custody in February 2020 for other matters, you have remained abstinent from the use of methamphetamine. You have however, struggled with the misuse of prescription medication both diazepam and more recently lyrica. It is clear that remaining abstinent from illicit drug use is an important factor if you are to successfully reform. Indeed prior to this offending you had enjoyed a period of three years abstinence and were offence free.

34You were assessed by Dr Linda Borg in December 2018 and Dr Matt Treeby in November 2023. Reports from each of these neuropsychologists were tendered at your plea. Both assessments were considered to contain issues of validity. However, it is clear from Dr Borg’s report that you have suffered longstanding issues of depression and anxiety and you have possibly sustained some compromised cognitive functioning as a result of your early and chronic exposure to trauma and polysubstance abuse. As a result of your exposure and experience of domestic violence in your childhood and adulthood you have suffered psychological and physical injuries that has resulted in instability at various times in your life.

35Dr Treeby opined that

[You] described ongoing difficulties with low mood, stress and elevated levels of anxiety, panic attacks, and [you have] reportedly experienced trauma in the form of alleged family violence in the context of [your] past relationships. It follows that [you] would benefit from a formal intervention with a Clinical Psychologist who has experience working with trauma presentations. [You] would particularly benefit from a formal intervention with a Clinical Psychologist who has experience working with trauma presentations. [You] would particularly benefit from learning more adaptive coping, problem solving, and impulse control strategies [you] can use, as required.

36I accept this opinion of Dr Treeby. Your counsel submitted that there was evidence before the court that enlivened the fifth limb of Verdins, that is Ms Buckley submitted a further term of imprisonment would weigh more heavily on you than a person in normal health. In the absence of a stated opinion to this affect I am unable to accept this submission and make such a finding. I do however, accept that you have had a very difficult and challenging upbringing that has had a direct influence on the person you have become today and that this gives context to your offending and your prior history. I take this into account in sentencing you in a general way. Further, I accept that you are a person who suffers psychological issues such that your require ongoing psychological care.

37In my view, your role as a mother, particularly a mother who has had to fight to keep your children and family together, is such that a return to prison would be extremely difficult. Whilst I do not consider this would meet the threshold of exceptional circumstances required for the exercise of mercy due to family hardship. I do accept that the anguish you would suffer as a result of being unable to care for your two young children and your elderly and ailing father is something I can take into account as a mitigating factor. I am satisfied that this would make the experience of a return to prison more burdensome for you.[5]  

[5]Markovic v The Queen [2010] VSCA 105 at [20].

Plea of guilty

38A further factor I take into account in your favour is that your plea of guilty was entered at committal mention which was in effect at the earliest opportunity.  I consider this to be a very early plea. Further, no witnesses were required to give evidence and the court system was spared the substantial expense and resources of contested proceedings. In these circumstances, your plea has significant utilitarian value and I find you have facilitated the course of justice. I intend to allow a significant discount for your plea of guilty.

39Your matter entered the court system in early 2023 and resolved in October 2023. The backlog that crippled the courts had largely, though not completely resolved by this time. I consider as a result of the resolution of your matters at that time, a ‘modest but perceptible’ discount is warranted in your case.[6]

[6]Worboyes v The Queen [2021] VSCA 169; Barnard (a pseudonym v R [2022] VSCA 42 at [18].

Rehabilitation

40Your counsel, Ms Buckley provided the Court with a total of seven CISP progress reports. Your engagement with CISP, came about because of matters in the Magistrates' Court, in July 2023.

41All of the reports speak of your open and honest engagement, as well as your willingness to rehabilitate and better yourself. This is also a point noted by Amanda Brown of Lamberti Associates. You have been engaging with Ms Brown since earlier this year.

42Your counsel submitted that your prospects for rehabilitation were supported and strengthened by the following factors:

(a)   Excellent compliance with CISP;

(b)   Compliance with strict bail conditions;

(c)   Family support and motivation to care for your children;

(d)   Cessation of your relationship with co-accused;

(e)   Stable housing;

(f)    Work history and relevant qualifications;

(g)   Productive use of time on remand; and

(h)   Plea of guilty and remorse

43Whilst on remand, you completed a range of courses and certificates, which have been provided to the Court.

44The Crown submitted that the weight given to your prospects of rehabilitation must be viewed through the lens of your prior criminal history, including previous contraventions and cancellations of CCO’s provided by the Court.

45Whilst your prospects for rehabilitation are somewhat guarded in light of your prior history, I am encouraged by your more recent clear engagement and willingness to rehabilitate. Importantly, you self-referred to Ms Brown, which indicates a level of insight into your needs and the problems you face.

46As submitted by your counsel, your children are a great motivation for you to remain drug free and to continue the work towards your reform.

47In my view, any sentence I impose should look to foster and continue this rehabilitation. This is not only for your benefit and the benefit of your children but ultimately for the longer term benefit and protection of the community.

Sentencing principles

48The basic purposes for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community.

49Given the seriousness of the charge of theft of firearms I consider general deterrence to be a very relevant sentencing consideration. Further, I consider specific deterrence should be given weight, but that this should be somewhat reduced in light of your acceptance of responsibility for your offending, your difficult experience on remand being separated from your young children and your remorse.

50In your case, I regard protection of the community is best achieved by continuing and building upon the supports and interventions to address any ongoing issues you have, this is what will likely reduce the risk of future offending. I consider that to remove you from the community would be a retrograde step that would not be in anyone's interests.

Current sentencing practices

51Both counsel helpfully provided comparable cases to assist the Court in determining and assessing the sentencing landscape.

52The cases provided by the Crown indicate the seriousness with which the courts regard matters involving the theft of firearms. In several if not all of these cases a term of imprisonment was imposed.[7]

[7] Barry v The Queen [2022] VSCA 94; DPP v Strange [2020] VCC 827; Ralph v The Queen [2022] VSCA 185.

53Ms Buckley highlighted that two of the cases provided by the Crown, Barry and Ralph, differed substantially from your offending. Regarding Barry, some of the firearms were sold and others missing, while in Ralph, it could not be determined whether the firearm was in circulation after the accused’s arrest. Your counsel submitted that the Court of Appeal in Barry emphasised that the loss of illegitimate firearms into the community it a serious aggravating factor.[8] Ms Buckley referred the court to cases that although not binding demonstrate that combination and non-custodial penalties have recently been imposed for offending of a similar nature.[9]

[8] Barry v the Queen [2022] VSCA 94 at [16]; Benkic v The Queen [2019] VSCA 34 at [18[].

[9] DPP v Dickson [2023] VCC 731; DPP v Cotchin [2018] VCC 1894; DPP v Clark [2018] VCC 583; DPP v Spurr [2018] VCC 1709.

54Mr Ritli on behalf of the prosecution submitted that the cases provided by defence were all distinguishable from the circumstances of your case. These cases all involved a theft of firearm where there was a connection or relationship between the offender and the victim or owner of the firearms. He submitted that this relationship was a factor that the court took into account in each of those cases. There was no burglary upon a stranger as in your case. Whilst Mr Ritli conceded that the cases provided by the crown were more serious that the circumstances of your case he submitted that the circumstances were more similar.

55I have been greatly assisted by the provision of these cases and have had regard to the general principles they provide. Ultimately, I must sentence you for the offending and circumstances of your particular case. I do however, take into account current sentencing practices as one of the factors to which I must have regard in the sentencing synthesis.

56Further, I take into account the sentencing guidelines referred to in s5 of the Sentencing Act,[10] where relevant in your case. Ultimately the sentencing exercise requires that I balance all relevant factors and make a judgment as to the appropriate sentence in the circumstances of your particular case.

[10] Sentencing Act 1991 (Vic) s 5.

57Totality is another very important sentencing consideration in your case. I agree with the submissions of your counsel that there is significant overlap in the offending before the court. In particular I accept that there is overlap between the charges of burglary, theft of firearms and prohibited person possess firearm. Further, I consider your offending is part of a series of offending having occurred in a relatively confined period and location.

58The principles of proportionality and parsimony are also important considerations. Proportionality requires that I impose a sentence proportionate to the gravity of the offence considered in light of the circumstances, including the maximum statutory penalty, the degree of harm caused to the victims, the method of committing the offence and your culpability. Parsimony requires that my sentence should be no more severe than is necessary to achieve the sentencing purposes.

59I have had you assessed for your suitability for a community correction order. You have been assessed as a suitable candidate. I also received a MHARS assessment from Mr Gregory Lane. In his view “[you] could benefit from learning and practising psychological skills and strategies to assist [you] to self sooth and self-manage [your] thought, emotions, and mood. Psychological counselling could also assist [you] to identify [your] values and to focus on achieving [your] pro social life goals and not re-offend”.

60In my view the appropriate sentence in your case is the imposition of a combination penalty involving time served in custody and a Community Correction Order. In coming to this conclusion, I am mindful of the guidance given by the Court of Appeal in Boulton v The Queen,[11] in particular, that a community correction order is a serious penalty that can meet the sentencing needs of general deterrence and punishment whilst providing for the rehabilitation of an offender.

[11] [2014] VSCA 342.

61Ms Smith if you could please stand. You are convicted of each of the offences before the court and you are sentenced as follows; in relation to charge 6 the theft of a firearm you are sentenced to 72 days imprisonment and you are ordered to perform a 2 year community correction order. In relation to the remaining charges you are ordered to perform a 2 year community correction order.

62The conditions of this Community Correction Order include that you must

(a)   Attend for supervision;

(b)   Submit for assessment and treatment for drug abuse;

(c)   Submit for assessment and treatment for mental health issues;

(d)   And that you attend for judicial monitoring, so I want you to come back and see me in 6 months' time. I am interested to see how you are going and also to see that you have maintained the rehabilitation you have commenced.

63The judicial monitoring can be done via Webex and if necessary you can appear at a Corrections office with your corrections officer present. The date I propose for this is the 30^th of October at 9.30am.

64In addition to the conditions that I have imposed, there are standard conditions you must comply with. First and foremost, you must not commit an offence punishable by imprisonment over the next 2 years. If you do, you will breach the order. You must comply with the conditions I have imposed and the standard conditions of a CCO. If you do not comply you will breach the order. If you breach the order, you will be brought back before me, and I will likely have to resentence you. That could involve sending you to gaol.

65You need to report within two working days to your nearest Corrections office and that will be Ringwood Community Correctional Services and you must report there by 2pm on Thursday 2 May 2024.

66You are required to advise your supervising Corrections Office of any change of address where you are living or working within two clear working days. And it is a term of all Community Correction Orders that you must submit to visits as directed and obey the instructions and directions of the Community Corrections and you cannot leave the State of Victoria without prior permission.

67I can only place you on a Community Correction Order if you agree – so firstly, do you understand what is involved? And do you agree to doing the order? 

68I reckon that you have served 72 days by way of pre-sentence detention.

69Pursuant to s. 6AAA of the Sentencing Act if you had pleaded not guilty and been found guilty the sentence I would have imposed is a term of 12 months imprisonment and a Community Corrections Order in similar terms to that I have imposed today.[12]

[12] Sentencing Act 1991 (Vic) s 6AAA.

70Thanks very much to both counsel for your very helpful submissions.  I can indicate that I  have had full regard to the written and oral submissions of both counsel. Ms Smith, good luck on the order. I will see you in October and hopefully everything will be going well.

71MS BUCKLEY:  As Your Honour pleases.