Director of Public Prosecutions v Smith

[2016] VCC 1054

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

AT WODONGA
CRIMINAL JURISDICTION

CR 16-00351

DIRECTOR OF PUBLIC PROSECUTIONS

v

JAMIE SMITH

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JUDGE:	HER HONOUR JUDGE HOGAN
WHERE HELD:	Wodonga
DATE OF HEARING:	20 July 2016
DATE OF SENTENCE:	20 July 2016
CASE MAY BE CITED AS:	DPP v Smith
MEDIUM NEUTRAL CITATION:	[2016] VCC 1054

REASONS FOR SENTENCE
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Subject:1 charge of dealing with proceeds of crime – lower end of scale of seriousness.

Catchwords:
Legislation Cited:
Cases Cited:

Sentence:TES 361 days imprisonment, with 358 days pre-sentence detention reckoned as time already served.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Moore	Office of Public Prosecutions
For the Accused	Mr A. Pyne	Victoria Legal Aid Melbourne

Pages 1 - 6

 

 

HER HONOUR:

1Jamie Phillip Smith, you have pleaded guilty to one charge of dealing with property knowing that it was the proceeds of crime.  This offence carries a maximum penalty of 15 years' imprisonment. 

2The circumstances of your offending are summarised in the summary of prosecution opening, Exhibit A. On 26 July 2015, at approximately 7.30 pm, you were in company with one Peter Warren Whyte.  You were the passenger in a vehicle driven by Whyte when it stopped near a KFC store in Smythe Street, Wodonga.  You and Whyte were both homeless and financially bereft. Whyte went into the KFC store and, in a brutal and menacing way, terrorised staff there with a wheel brace as he committed offences of armed robbery and theft.  He fled from the scene and you met up with him later and you both booked a room at the Twin City Motel in Wodonga for the night. Some five hours later, about half an hour after midnight, police attended the motel and walked into the room where you were found seated at a table with a large pile of money totalling $1,120, which was the proceeds of a Whyte’s offending.

3You and your co-accused were arrested in what was described in the prosecution opening as a "remarkably frank Record of Interview".  You admitted to police that you had identified the KFC store as a likely target for a robbery, as you and your accused were desperate for money. However you stated that, when your co-accused left the vehicle, you were not sure what he was going to do and could not believe that he actually went through with it.  You blamed yourself for planting the seed in his mind, although your criminality is limited to dealing with the proceeds of the armed robbery in the motel room.

4You have always denied actual participation in the armed robbery, for which your co-accused was sentenced in the County Court at Wodonga on 20 November 2015. He was convicted of one charge of armed robbery and one charge of theft, and sentenced to four and a half years imprisonment with a non-parole period of 3 years.  In the circumstances, there are no relevant considerations of parity.

5You are presently aged 43 years, having been born on 29 July 1972.  You come before the court with a fairly significant history of offending mainly in New South Wales and Queensland, dating back to 1992. Your prior convictions are primarily driving offences and dishonesty offences,  the latter apparently related to a long-term dependency upon illicit drugs. From time to time, you have served sentences of imprisonment.  The last one, prior to this offending, having been completed on 12 January 2012.

6It appears that you have had a sad, unstable and fairly unproductive life.  Your counsel, Mr Pyne, told the court that you were placed in Westmead Boys Home in Sydney when you were ten or 11 years old. You were subjected to violence there and ran away from the home and lived on the streets in your teenage years, you had a minimal and disrupted education and have a very limited work history. Mr Pyne stated that you had struggled to try and achieve some stability in your life and, from the time of your release from custody in 2012, had largely managed to lead a lawful life until the commission of this offence.

7You were living in Queensland, where your mother and two siblings reside, and were managing fairly well until you were lured to South Australia by a cousin.  Somehow this resulted in you being the subject of threats by an outlaw motorcycle gang. You were no longer able to reside with your cousin and sought accommodation in a refuge, where you met your co-accused Mr Whyte.  You were both planning to travel back to Queensland when this offending occurred. As previously mentioned, you were both homeless and without financial support.  I note that, according to the sentencing remarks, dated 20 November 2015, Mr Whyte, has several convictions for violence.  At least it can be said of you that you do not.

8In sentencing you, there must be denunciation of your conduct and emphasis on general and specific deterrence, but I accept your counsel's submission that the offence for which I must sentence you, is on the lower end of seriousness for the crime of knowingly dealing with the proceeds of crime. The amount involved was $1,120.  You made a very grave error of judgment in going anywhere near the money when you realised what Mr Whyte had done, but police intervened before you could make any use of it.  Unhappily, your background has made you accustomed to committing acts of dishonesty when you have found yourself in need.

9You have been in custody since 27 July 2015 and have served your time on remand in protection, due to your concerns about the threats that you perceive from the outlaw motorcycle gang. I take into account that apparently, this has been onerous, as you have no family or connections in Victoria and, therefore, received no visits at all during your 358 days in custody.

10As you had been initially charged with armed robbery and theft and it was only this week that the prosecution agreed to accept a plea to the charge of knowingly dealing with the proceeds of crime, I accept that your plea of guilty should be treated as an early one and that you do have some remorse as expressed in your record of interview.  You are entitled to a high discount on your sentence by reason of these factors.

11Although your counsel concedes that a term of imprisonment is an appropriate sentence, he has urged the court to note that you have used your time productively in custody by doing a variety of courses to help you emotionally.  A bundle of certificates for these courses was tendered as Exhibit 1.

12Mr Pyne urged that, in all the circumstances, an appropriate sentence would be a term of imprisonment consisting of the time which you have already served.  The prosecution did not take issue with this.

13Having considered all relevant matters, I propose to accede largely to that submission, but with the addition of an extra three days in custody so that you can be returned to the Metropolitan Assessment Prison and make appropriate and safe plans to travel to Queensland.

14Mr Smith, you have had an unlucky start in life, but it really is time at the age of 43 years to try to break this cycle of criminal offending.  You are now fit and healthy, after having had almost a year in prison and you do have the chance to make a fresh start.  If you can go back to Queensland, where you have some family support, and try to get some training so that you can get a job and stay away from illicit drugs and offers of easy money, you may be able to rehabilitate yourself. I sincerely wish you luck in that.  Otherwise, if you do not take stock and try and steer yourself away from crime, your life will continue to be a wasted one.  You will go on being a menace to society and a burden on the criminal justice system.

15On the one charge of dealing with property knowing that it was the proceeds of crime, you are convicted and sentenced to serve a period of 361 days imprisonment.  I declare a period of 358 days pre-sentence detention to be time already served under the sentence imposed this day.

16Pursuant to s.6AAA, I declare that, had it not been for your plea of guilty, the total effective sentence would have been two years imprisonment with a non-parole period of one year.

17Pursuant to s.464ZF(2) of the Crimes Act, I order that you undergo a forensic procedure for the taking of a scraping from the mouth in accordance with sub-division 30A of Part 3 of the Crimes Act 1958 until a sample of sufficient standard is obtained for placement on the database. I consider this order justified by reason of the seriousness of the circumstances of the offending and the fact that it is consented to by you. Mr Smith, you need to be aware that if you do not consent to the taking of a swab of saliva from the mouth, then the police are authorised to use reasonable force to enable that forensic procedure to be conducted. I suggest that to endeavour to have that done here in Wodonga prior to being transported back to Melbourne. I understand that it may well be that you will not be able to be transported until tomorrow and, it is for that reason, that I have deemed it appropriate to add a couple of days onto the sentence.

18I think the worst thing that could happen to you, would be to be released either here in Wodonga or out in the wilds at midnight with no time to make plans. I think you really need to now set things in train for getting yourself to Queensland and getting safely away from those concerns that you have and trying to get your life back on track.

19OFFENDER:  Thank you.

20HER HONOUR:  Thank you.

21MR PYNE:  If the Court pleases.

22HER HONOUR:  I will just have a copy of the s.464ZF order handed down the parties.  I have just altered the indictment number on the top of that as it had the old one.

23Thank you.  You can take Mr Smith from the court now.   Thank you Mr Pyne.

24MR PYNE:  Thank you, Your Honour.

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