Director of Public Prosecutions v Smith-Whiting

[2023] VCC 1020

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 23-00192

DIRECTOR OF PUBLIC PROSECUTIONS

v

DEAN SMITH-WHITING

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JUDGE:	HIS HONOUR JUDGE LAURITSEN
WHERE HELD:	Melbourne
DATE OF HEARING:	31 May 2023
DATE OF SENTENCE:	16 June 2023
CASE MAY BE CITED AS:	DPP v Smith-Whiting
MEDIUM NEUTRAL CITATION:	[2023] VCC 1020

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Charges of obtain financial advantage by deception, attempt to obtain financial advantage by deception and related summary offences – use of fraudulent credit card applications to make purchases – offending impacted by gambling use disorder and substance use disorder – early plea of guilty – remorse – family support – reasonable prospects of rehabilitation

Sentence:                  268 days imprisonment and 18-month Community Correction Order

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Grant	Office of Public Prosecutions
For the Accused	Ms J. Kennedy	Leanne Warren & Associates

HIS HONOUR:

Introduction

1At the outset, Mr Smith-Whiting, I propose to sentence you on Charge 1 to 268 days’ imprisonment.  Also on that charge, Charge 2 and Summary Charges 4, 91 and 96, subject to your consent, I will place you on a community correction order of 18 months’ duration with these conditions:

(a)   to perform 250 hours of unpaid community work;

(b)   to undergo assessment and treatment for your drug abuse and dependency;

(c)   to undergo programmes to reduce re-offending; and

(d)   to be supervised.

Circumstances

Charge 1

2The circumstances of your offending are simple.  For Charge 1, you applied for 14 credit cards from Latitude Finance in the names of 14 real persons.  In each case, your application was approved.  You then used the fact of approval or the credit card itself to make many purchases.  The precise circumstances are set out in the summary of the prosecution opening.  There were many purchases occurring between September 2021 and July 2022.  In total, you made $151,500 worth of purchases.  Charge 1 is very much a rolled-up charge.

3On 20 July 2022, police searched your home and seized various electronic devices.  They are the subject of the summary offence, dealing with property suspected of being the proceeds of crime.  They did not find you.

Charge 2

4On 21 September 2022, you went to a branch of the National Australia Bank, seeking to unlock a bank account in the name of another person.  You provided evidence of that person’s identity.  The teller was suspicious and called the police.  When the police spoke to you, you gave a false name.  You were arrested.  At a police station, you gave your real name.  However, when interviewed, you gave mainly “no comment” answers to questions.

5You have remained in custody since 21 September 2022.  A total of 268 days, excluding today.

Criminal history

6In this State and New South Wales, between 28 May 2010 and 9 June 2021, you have appeared in a criminal court on five occasions and have been convicted or found guilty of 21 charges.  In Victoria, you have not been sentenced to imprisonment.  In New South Wales, you have been sentenced to imprisonment twice with the longest sentence being 16 months’ imprisonment.

Victim Impact Statement

7The impact statement of Ross Wilson, one of the person's whose identity you stole, has been read to the court by the prosecutor.  It shows the considerable difficulties you caused him and his family through your dishonest actions.

Personal

8You are 32.  You are an only child although you have an older half-sister through your mother.  You have a good relationship with your parents.

9You completed Year 11 at secondary school and completed a carpentry apprenticeship.  Then you worked for Caeli Constructions for about eight years.

10In 2009, you formed a relationship.  You and your partner bought a home.  However, in 2015, you injured your back at work.  You were incapacitated for work and received weekly payments.  You could not maintain your mortgage repayments.  Your relationship broke down.  You lost the house.  You increased your drug usage and gambling.  The offending of these charges provided the money for your drugs and gambling.

11During 2021, you were imprisoned in New South Wales.  While in custody, your then partner, Amber, died.  You were unable to attend her funeral.  You had been in a relationship with her since 2016.

12In custody, you have undertaken courses in traffic management, safe food handling, digital technology and a program called 'Ice & Me'.

13I have read your letter addressed to the court.

Psychologist

14Jeffrey Cummins is a well-respected psychologist.  He interviewed you on 14 April 2023.

15Mr Cummins identified the traumatic events in your life.  First, injury prevented you from continuing to play football.  Second, the end of your first relationship.  And, third, the death of Amber in 2021.

16Mr Cummins traced your dependency on drugs and gambling to the breakdown of your first relationship.

17He did not diagnose you as suffering from what he calls a clinical diagnosis.  You need psychological counselling to deal with your grief over the death of Amber.

18He found you an optimistic person.  You considered yourself psychologically resilient.  You are remorseful and intent on your rehabilitation.  Mr Cummins recommends counselling to overcome your grief.

19At the time of your offending, according to Mr Cummins, you were suffering from a gambling use disorder and substance use disorder.  Both of which are clearly in remission because you are in custody.

Guilty pleas

20You pleaded guilty at the earliest reasonable opportunity.  These pleas benefit the criminal justice system.  Dealing with a plea is much quicker and simpler than a jury trial.  While the effects of the virus still affect the criminal justice system, pleas are more valuable and deserve a greater discount on sentence at the present time.

21I note the sentencing appeals referred to by counsel for the Director.

Discussion

22These offences and your criminal history point to the need to deter you from such offending and protect the community from you.  Adverse events have led you to using drugs heavily and gambling heavily.  You committed offences to finance both.

23Sentencing dishonesty offences usually involves deterring others from the same or similar offending.

24You are remorseful.  You have the support of your parents.  You have engaged in programs and courses while in custody.  For the purposes of a community correction order, you were assessed as a person of high-risk of re-offending.  Nevertheless, your prospects of rehabilitation are reasonable.

Community correction order

25You were assessed as suitable for a community correction order.  The assessor recommended certain conditions.

Sentence

26On Charge 1, I will sentence you to 268 days’ imprisonment.   Also on that charge, Charge 2 and the Summary Charges 4, 91 and 96, subject to your consent, I will place you on a community correction order of 18 months’ duration with these conditions:

(a)   to perform 250 hours of unpaid community work;

(b)   to undergo assessment and treatment for your drug abuse and dependency;

(c)   to undergo programmes to reduce re-offending; and

(d)   to be supervised.

27Any hours that you have spent satisfactorily on Condition B and Condition C will be counted as hours of unpaid community work.

28I note, as I have said, that you have spent 268 days of pre-sentence detention.  I will declare those 268 days, excluding today, as time served under my sentences.

Section 6AAA

29If you had not pleaded guilty to these charges, but had been found guilty by a jury, I would have sentenced you to a total effective sentence of 21 months’ imprisonment.

Forfeiture and disposal orders

30I will make the forfeiture and disposal orders in the terms sought and I will make the restitution compensation order also in the terms sought.

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