Director of Public Prosecutions v Smith
[2016] VCC 1419
•16 September 2016
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR-14-02061
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DREW SMITH |
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| JUDGE: | HER HONOUR JUDGE CAMPTON |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 4 July 2016 |
| DATE OF SENTENCE: | 16 September 2016 |
| CASE MAY BE CITED AS: | DPP v Smith |
| MEDIUM NEUTRAL CITATION: | [2016] VCC 1419 |
REASONS FOR SENTENCE
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Subject:Arson, handling stolen goods, theft, reckless conduct endangering a person
Catchwords:
Legislation Cited:
Cases Cited: R v Verdins [2007] VSCA 102
Sentence: 3 years 8 months, 2 years non-parole---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms A. Hassan | |
| For the Offender | Ms N. Vermezovic |
Charges
1Drew John Smith, on the indictment you pleaded guilty to three charges of handling stolen goods, seven charges of theft, one count of arson, one charge of attempted theft and one charge of reckless conduct endangering a person. The maximum penalty for arson and for handling stolen goods is 15 years' imprisonment. For theft the maximum penalty is ten years and for attempted theft and reckless conduct endangering a person the maximum penalty is five years' imprisonment.
2You have also pleaded guilty to five summary charges, three charges of drive whilst disqualified, one charge of using an unregistered motor vehicle, one charge of evading the police. The maximum penalty for driving while disqualified is 240 penalty units or two years' imprisonment. For use of an unregistered motor vehicle it is 25 penalty units for the first offence and 50 for the second offence. For evade police it is 60 penalty units or six months' imprisonment, or both.
Offending
3The circumstances of your offending are set out in full in the prosecution opening and will form part of the sentence.
4In summary, in February 2013 the police commenced Operation Red Hill investigating your involvement in a number of car thefts and theft from vehicles in late 2012. In addition, an arson which was committed in Cranbourne West. As a result of this investigation you were eventually charged with the following offences:
5Charge 1 of handling stolen goods, which relates to an occasion in January 2012 where you accepted a down‑payment of $300 for a set of tyres which you had taken from a Holden Club Sport sedan you had stolen in November 2012.
6Charge 2, theft from a motor car, which relates to an occasion between 8 January and 9 January 2012 when you gained entry to a Holden Commodore sedan belonging to VicRoads Corporation and removed a number of items belonging to VicRoads from that vehicle with a combined value of $1,520.
7Charge 3, theft of a motor vehicle, which relates to the theft of a Holden Commodore utility belonging to Cranbourne Holden valued at $30,000. Between Tuesday 26 February and Wednesday 27 February this vehicle was discovered in your garage when the police executed a search warrant on 14 March 2013.
8Charge 4, handle stolen goods, where the police executed the search warrant on 14 March 2013 the police located a stolen Paslode nail gun in the back seat of your unregistered Holden Vectra sedan. When a further search warrant was executed on 12 April 2013 they located a stolen Makita radio in the house.
9Charge 5 relates to the theft of a white 1990 Nissan Patrol wagon valued at $10,000 between Wednesday 20 March and Thursday 21 March 2013.
10Charge 6 of arson relates to your actions on Friday 22 March 2013 when you drove the stolen Nissan Patrol wagon to the site of a residential house under construction in a new estate in Cranbourne West. This house being owned by Simmons Homes. You were accompanied by Jason Milij, David Campbell and Laura Zenrella who were all travelling in another motor vehicle owned by Campbell. You parked the stolen Nissan Patrol wagon in the garage attached to the house and placed a gas bottle in the footwell, behind the front passenger's seat before dousing the car with an unknown accelerant, you opened the valve of the gas bottle before setting fire to the vehicle. You all then fled the scene in Campbell's vehicle. The fire caused an explosion in the garage which spread to the attached house. The house, which had been near completion and approximately four weeks from handover to the new owner, was completely destroyed. Neighbours heard a loud bang and saw the fire and called emergency services.
11Charge 8, theft from a motor vehicle, relates to your actions between Monday 8 April and Tuesday 9 April 2013 when you and Jason Milij and an unknown co‑offender stole three metal rims fitted with Bridgestone tyres valued at $900 from a Holden Commodore utility.
12Charge 9, attempted theft of a motor vehicle, concerned your actions at about 1.30 am on Thursday 9 April 2013 when the three of you drove to a residential address in Kingdom Drive Cranbourne where a Holden Commodore utility valued at $25,000 was parked. This car did not have any wheels on it, it was sitting on bricks. You attempted to put the stolen wheels that you had taken from the Holden Commodore utility in Lillian Street Cranbourne on to this vehicle using a trolley jack but you were disturbed by the car owner's father and you fled the scene.
13Charge 10 relates to the theft of a motor vehicle, this charge relates to an occasion on Monday 14 April 2013 where you were arrested by police in Queensland driving a stolen Holden Commodore which had personalised registration plates and was valued at $62,000. The vehicle had originally been stolen from outside a residential address in Mordialloc by Milij and the co‑offender.
14Charge 11, theft of a motor vehicle, relates to your actions on Thursday 11 April 2013 when, together with your co‑offender, Christopher Snowden and an unknown co‑offender, you went to an address in Frankston North and stole a blue Holden Commodore VT sedan valued at $7,000. You then drove this stolen vehicle to your house and parked it inside the garage.
15Charge 12, theft from a motor vehicle, relates to your actions of taking a brown leather Hurley wallet containing $80 in cash from this vehicle and giving it to Snowden.
16On Friday 12 April 2013, when the police executed a warrant at your address in Narre Warren they located the stolen Holden sedan. They also found and seized a number of other items, including a 20 litre can of kerosene. Charge 7, handling stolen goods, relates to the fact that the can of kerosene had been stolen earlier from a warehouse in Braeside.
17Charge 13, reckless conduct endangering serious injury, concerns the manner of your driving on Friday 12 April 2013. On this occasion at approximately 5.45 pm, police observed you driving a stolen Holden Commodore wagon with personalised number plates with your de‑facto partner in the front passenger seat. The police followed you and attempted to intercept you on Kurrajong Road, Narre Warren. You were signalled to pull over by a police officer but you failed to stop and a pursuit was initiated. During this pursuit you drove at speeds exceeding 100 kilometres in a residential area with a 60 km/h speed limit. You attempted to evade police by crossing a solid unbroken line on to the incorrect side of the road to overtake several vehicles, this included a vehicle towing a boat that you narrowly avoided a head‑on collision with.
18Police terminated the pursuit due to your dangerous conduct which put yourself and other road users in danger of serious injury. Soon after this incident you fled interstate with the stolen vehicle. You were arrested by police in Queensland on 14 April 2013. On Friday 11 October 2013 the police successfully applied to have you extradited to Victoria after you were paroled in Queensland.
19The background to the summary offences are as follows.
20There are three charges of drive while disqualified. Your licence was cancelled on 19 October 2012 at the Frankston Magistrates' Court for a period of six months.
21Charge 11 relates to 12 April 2013 when you were driving a stolen Holden Commodore wagon on Kurrajong Road and the police tried to intercept you.
22Charge 39 relates to you being observed on security footage at the Coles Express service station in Narre Warren North on 13 March 2013 driving your Holden Vectra sedan to purchase petrol.
23Charge 47 relates to your driving on 28 March 2013 on Narre Warren North Road.
24The two other summary charges are Charge 40, using of an unregistered motor vehicle and that relates to the use of your unregistered Holden Vectra sedan on 12 April 2013 and 13 June 2013.
25Charge 54 relates to your failure on 12 April 2013 to stop your vehicle in Kurrajong Road after you had been given the direction to stop by a member of the Police Force.
Circumstances of Offending
26Your counsel provided the court with details of your personal circumstances and further details were contained in the psychological report from Carla Lechner.
27You were born on 3 April 1990 and you are an only child. In her report Ms Lechner described you as being raised in an intact but extremely volatile family environment characterised by chronic marital tensions and a number of separations and reconciliations.
28Your counsel described you as being very much the victim of your parents ongoing conflicts from an early age. You grew up in Frankston attending the local primary school from prep until Grade 5, however, you experienced learning difficulties at school and you were bullied. As a consequence you did not attend high school but you were home schooled by your mother. You were diagnosed with Asperger's Disorder aged 12. Your parents found it difficult to accept this diagnosis and perhaps this might explain why you received no specialist treatment or assistance for this disorder.
29On a number of occasions, due to marital tensions your mother left Melbourne, taking you with her to Queensland where you stayed with relatives. When you were about 14 your father opened a small used car business and you enjoyed helping him in this business. You enjoyed working on cars. In fact, you commenced a mechanic's apprenticeship when you were about 17. You had to look after your father when he suffered a mental breakdown following the collapse of his car business and unfortunately you did not finish your mechanic's apprenticeship. You completed about nine months before your parents had an argument again and your mother took you to Queensland.
30When your mother returned to Melbourne on this occasion she left you with family in Queensland. It appears from your prior convictions that your time in Queensland was not without issues. You appeared in the Magistrates' Court there in 2008 on two occasions for theft‑related offences. On your return to Melbourne you worked briefly selling tyres, but it was not long before you began mixing with the wrong crowd. You increased your ice use, which you had started when you were about 19. You instructed Ms Lechner that for about two to three years you were using three and a half grams every two days.
31You have a number of prior court appearances including three appearances in the Dandenong Magistrates' Court in 2010 with respect to various charges, all involving motor vehicles. At the Richmond Magistrates' Court in Queensland on 8 June 2011 you were sentenced to eight months imprisonment to be served by way of an intensive corrections order. On 7 May 2012 you received a community corrections order at the Frankston Magistrates' Court for 12 months for offences including reckless conduct endangering life, drive whilst disqualified and failing to stop a vehicle on police request.
32On a more positive note, by this time in about January 2012 you had formed a relationship with your current partner, Ms Edwards. You lived together with her parents for a period of three to four months and during this time you worked at Noble Park Distribution.
33In November 2012 your savings were sufficient for you to move out together into your own place in Narre Warren. Sadly on 27 December 2012 you lost your first baby, Phoebe, and in a letter to the court Ms Edwards said that you both struggled with grief and depression after this. Your life spiralled out of control and you began taking drugs again and going out every night. It was during this period of your life that you committed the offences I am now sentencing you for.
34You told Ms Lechner that you were immensely depressed after the miscarriage of your daughter and that you had relapsed to heavy ice use and associating with negative peers.
35After you were apprehended in Queensland in April 2013 with respect to further offences committed in that state and the breach of your Intensive Corrections Order of 8 June 2011, you were sentenced to 18 months' imprisonment with a non‑parole period of six months. You were extradited to Victoria on 12 October 2013. Once back in Victoria you were eventually granted bail on 20 December 2013 with a condition that you live with your parents and take part in the CISP bail program. Initially, you lived with your parents and slept on the couch, then your bail was varied and you began residing with Ms Edwards and her parents. All went well for a while and you became a father for a second time when your son Jackson was born in September 2014. However, after you contracted hand foot and mouth disease you had to move back in with your parents to avoid infecting your baby son. While you worked for a short period you soon got back into contact with your offending peer group and relapsed into using meth. You committed further offences, and this is why your bail was revoked in February 2016.
36Counsel informed the court that it was in the context of the stress of moving back with your parents and not being able to have any physical contact with your son that you offended again. With respect to this re‑offending, at the Moorabbin Magistrates' Court on 1 April 2016 you were sentenced to four months' imprisonment.
Ms Lechners Opinion
37In her report, Ms Lechner described you as being cognitively, socially and emotionally immature, therefore, finding it hard it hard to reflect on the impact that your behaviour had on yourselves and others. She said that you presented with a complex clinical picture, this was because you had been diagnosed with Asperger's Disorder which undermines your learning and developmental social networks. You emanated from a dysfunctional family where you were exposed to psychological and verbal abuse. To complicate matters further you had a problem with ice. In her opinion, from purely a psychological perspective you would benefit from engagement with treatment services. On account of your Asperger's you are likely to be more vulnerable in prison as you are not able to read people and react accordingly.
Mitigating Factors
38Your counsel relied on Ms Lechner's opinion as being supportive of the following mitigating factors. The offences were committed during a period of your life when you were suffering considerable personal strain and had re‑commenced using drugs in the context of the still birth of your daughter, Phoebe, in December 2012. You had pleaded guilty and expressed remorse for your offences. You suffered from autism spectrum and the court should take into account the principles in R v Verdins.[1]
[1] [2007] VSCA 102
39You are still a relatively young man and have some prospects of rehabilitation. You continue to enjoy the support of your partner Tess Edwards and she was a positive influence on you. The birth of your son was submitted to have been a stabilising influence on you and to have given you motivation to rehabilitate.
40Counsel also relied on the short period when you were on bail where you demonstrated some ability to lead a positive lifestyle. She referred to the courses that you had completed while you were in prison, in addition to the terms of imprisonment that you had served in Queensland and then in Victoria which were of a recent time.
41In a letter to the court, your partner Tess Edwards urged the court take into account that you are making a real effort to complete courses while in custody to help with your prospects of rehabilitation. She also mentioned that you were engaging with the psychologist at Fulham Correctional Centre who helped you organise ongoing help and treatment.
42With respect to the charge of arson, your counsel urged the court to take into account that it was unsophisticated and involved little planning. It involved an uncompleted house in an unoccupied housing estate and, therefore, did not pose a risk to the safety of any people. It was submitted that it was not motivated by revenge, malice or anger, which were aggravating features frequently seen in cases of arson.
Prosecution Submissions
43The prosecutor accepted that the principles in Verdins' case would allow for some moderation in your sentence, and in addition, that the principle of totality was relevant and that your rehabilitation was a relevant consideration. However, the prosecutor submitted that there had been a degree of pre‑planning with the arson as you had taken the gas bottle with you to the housing estate in the footwell of the car. Arson is an extremely serious crime which was difficult to detect and prove and this had to be a factor relevant to penalty. It was submitted that with the offence of arson, general and specific deterrence were important and that community protection was a strong consideration.
Sentencing Remarks
44In sentencing you I have taken into account all the mitigating factors referred to by your counsel. Your plea of guilty saves the state the expense of a trial in this matter and your plea of guilty entitles you to a discount, and I have given you a discount.
45I accept that you have demonstrated remorse for your offending and that you are making efforts to rehabilitate yourself. You are still a relatively young offender and I accept that you are not without prospects of rehabilitation.
46I accept Ms Lechner's opinion as to your Asperger's adversely affecting your ability to properly judge social situations and to inhibit impulses. I accept that due to this condition your time in custody will be more difficult. Due to these factors I have moderated general deterrence to some degree, given that you have just served two other sentences for subsequent offending I have taken the principle of totality into account.
47However, I must balance these sentencing considerations with the need to protect the community. In particular, arson is a serious offence, as is reflected in the maximum sentence of imprisonment for 15 years. As a result of your actions on 22 March 2013 not only was the Nissan Patrol wagon destroyed, but the attached house was completely destroyed. I accept the prosecutor's submission that there was some pre‑planning as you took the gas bottle with you to the housing estate. I must also take into account that arson is a difficult crime to detect and to prove.
48With respect to the charge of reckless conduct endangering serious injury, the police terminated your pursuit due to you putting yourself and other road users in danger of serious injury.
49It is concerning that you have a prior conviction for reckless conduct endangering life. You also have convictions for failing to stop after an accident and driving in a manner dangerous as well as driving while authorisation was suspended.
50I considered the possibility of a sentence of imprisonment together with a community corrections order and I had you assessed for a community corrections order, however, given the serious nature of your offending with respect to Charges 6 and 13 I consider that a community corrections order is not an appropriate sentencing disposition. In coming to this conclusion I have taken into account all the mitigating factors referred to by your counsel. However I am not satisfied that a community corrections order would effectively serve the purpose of specific and general deterrence. In reaching this conclusion I have also taken into account that you have breached such orders in the past and that you have been assessed as having a high risk of re‑offending. I consider that a sentence of imprisonment with a reasonable period of parole is the appropriate sentencing disposition.
Sentence
51Taking all of these various sentencing considerations into account I intend to sentence you as follows. If you could please stand up.
52On Charge 6 of arson you are sentenced to two years' imprisonment.
53On Charge 13 of reckless conduct endangering a person 12 months' imprisonment.
54On Charges 3, 5, 10 and 11, which are all charges of theft of a motor vehicle, six months' imprisonment on each charge.
55On Charge 9 of attempted theft of a motor vehicle, three months' imprisonment.
56On Charges 2 and 8, theft from a motor vehicle, three months' imprisonment on each charge.
57On Charge 12, theft from a motor vehicle, one month.
58On Charges 1, 4 and 7, which are all charges of handle stolen goods, two months on each charge.
59On the summary offence of evade police you are sentenced to three months.
60On each of the summary driving while disqualified offences you are sentenced to three months.
61On the use of an unregistered motor vehicle you are convicted and fined $500.
62The base sentence is a sentence of two years on Charge 6 of arson. The cumulation on the base sentence is as follows.
63Six months of the sentence on Charge 13, that is the reckless conduct endangering a person, is cumulative. Two months of the sentence on Charges 3, 5, 10 and 11, the theft of motor vehicle charges. One month of the sentence on Charge 7 of handling stolen goods. One month on Charge 2 of theft from a motor vehicle. One month of the summary charge 34, evade police, and one month of the sentence on each of the drive while disqualified, being Charges 13, 39 and 47.
64The head sentence, therefore, is three years and eight months. The non‑parole period is a period of two years.
65I cancel your licence to drive a motor car for a period of 12 months. That is an aggregate disqualification period on each of the charges that it needs to be applied to, that is the charges of theft of a motor vehicle, each of those. The time served in prison already served is 155 days not including today and that time is to be reckoned as served.
66I grant the order for a forensic sample that was consented to by the defence on the grounds that it is in the interests of the community because of the serious nature of the offending and that it is consented to.
67The police can take that simple by taking a scraping from your mouth. If you were to object to that they can use force, but given you have consented to it and it is not painful, I am sure it will not be a problem.
68A disposal and forfeiture order were sought in this matter and I have made those orders.
69Under s.6AAA of the Sentencing Act, but for the plea of guilty the sentence would have been five years and eight months with a non‑parole period of three years and six months.
70I should indicate at this stage in respect to the sentencing remarks that the parole period has been fixed very much taking into account all the mitigating factors that counsel mentioned. I consider that your chances of success under the parole system is a lot better than with a community corrections order.
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