Director of Public Prosecutions v Spits
[2021] VCC 822
•18 June 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-20-01810
CR-20-01668
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRETT SPITS LINCOLN MIFSUD |
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JUDGE: | HER HONOUR JUDGE DAWES |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 21 May 2021 |
DATE OF SENTENCE: | 18 June 2021 |
CASE MAY BE CITED AS: | DPP v SPITS & Anor |
MEDIUM NEUTRAL CITATION: | [2021] VCC 822 |
REASONS FOR SENTENCE
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Subject: Criminal Law - Sentence
Catchwords: Handling stolen goods, theft
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited: R v Verdins (2007) 16 VR 269; Boulton v the Queen (2014) 46 VR 308; R v Grossi (2008) 23 VR 500.
Sentence: B. Spits – TES 2 years, NNP 1 year, 3 months
L. Mifsud – 2 year CCO
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. Gray | Ms A Hogan, Solicitor for Public Prosecutions |
For Accused SPITS | Ms Z. Garde-Wilson | Garde Wilson Lawyers |
For Accused MIFSUD | Mr M. Turner | Rolfe Criminal Law Pty Ltd |
HER HONOUR:
1Brett Spits, you have pleaded guilty to one charge of handle stolen goods and to two charges of theft. The charge of handle stolen goods is a rolled-up charge, where you dishonestly undertook or assisted in bringing two boats and their trailers into Victoria, knowing or believing them to be stolen, on 27 January 2020. The two boats were stolen in New South Wales between 26-27 January 2020. A rolled-up charge is a collection of identifiable charges, bundled together in a single charge.
2The charged thefts occurred on 25 and 27 February 2020, respectively.
3Lincoln Mifsud, you have pleaded guilty to four charges of handling stolen goods on one day, 28 February 2020.
4The prosecution has prepared two summaries of openings for the plea hearings. It is accepted that these openings accurately outline the relevant evidence in each case. I will summarise the overall facts and then deal with each of you separately.
5Between 26 and 27 January 2020, a white Malibu Wakesetter VLX ski boat was stolen from an address in Mulwala, New South Wales. The boat and trailer were valued at $155,000.
6On 27 January 2020, an orange and blue Malibu Wakesetter ski boat was stolen from an address in Mulwala, New South Wales. The boat was valued at $95,000.
7A subsequent investigation by police revealed that you, Brett Spits, were responsible for bringing both stolen boats from New South Wales into Victoria.
8The prosecution asserts that you were directly involved in the theft of the boats but as these offences were committed in New South Wales, they do not form part of the current indictment and you will only be dealt with for handling these stolen boats, knowing or believing them to be stolen.
9On 25 February 2020, a blue Malibu Wakesetter VTX ski boat was stolen from an address in Bundalong, Victoria. It was valued at $135,000. The boat was attached to an Easytow trailer. It was removed from a carport and dragged to an unknown location, then hooked onto a vehicle and towed away by a white tray back Land Cruiser, driven by you, Brett Spits.
10On 26 February 2020, a white Malibu Wakesetter speedboat was stolen from an address in Bundalong, Victoria. The boat and trailer were valued at $140,000. You, Brett Spits, were directly involved in taking the boat.
11On 28 February 2020, police executed a search warrant at LWM Panels, a spray painting and panel workshop in Echuca, which was owned by you, Lincoln Mifsud. The white Malibu Wakesetter that was stolen on 26 February 2020 was located at the rear of the premises. The registration sticker had been peeled off the hull of the boat and a false registration plate had been attached to the boat trailer.
12Lincoln Mifsud, you then assisted police and took them to a shed that had been rented by you, at the rear of another business in Echuca. The three other stolen boats were stored there, having been reversed in, side by side. All the registration stickers and registration plates had been removed.
13CCTV footage from the storage premises was seized. It showed both of you and another unknown male at the shed, at approximately 10.39pm on 27 February 2020. One of the stolen boats was backed into the shed in a vehicle driven by you, Brett Spits. Lincoln Mifsud, you can be seen in the CCTV footage.
14Brett Spits, you were arrested by police and participated in a record of interview. You denied any involvement in your offending. You were charged with these offences on 28 February 2020 and released on bail.
15Lincoln Mifsud, you were also arrested by police and interviewed. You denied knowing that any of the four boats were stolen. You said that the white Malibu boat in your shed had been dropped off by your co‑accused, so that you could detail it. In regard to the other boats, you said that your co‑accused needed somewhere to store boats, so you made arrangements for him to do so. Later in the interview, you stated that you only became aware that the boats were stolen the day before. You then stated that you were not aware that the blue and white Malibu Wakesetter was stolen, when it was stored in the shed at 10:39pm the night before. You assisted the police by taking them to the storage shed and explained how the boats came to be there.
16You stated that you were the only one with keys to the storage shed and once you found out the boats were stolen, you just “wanted them gone”. You were charged with these offences on 28 February 2020 and released on bail.
17The maximum penalty for the offence of theft is 10 years' imprisonment and for the offence of handling stolen goods, 15 years' imprisonment. Each charge that has been proven here is an offence that falls within Schedule 1A of the Sentencing Act, being theft or handling stolen goods where the value of the goods is $50,000 or more. An offender becomes a continuing criminal enterprise offender when found guilty of 3 qualifying offences.[1] You will both be sentenced on this basis and it must be entered into the court records.
[1]Sentencing Act 1991 (Vic) s 6H.
18A continuing criminal enterprise offender is liable to a maximum term of imprisonment of two times the length of the maximum term prescribed for the relevant offence, or 25 years, whichever is the lesser.[2] Thus, the maximum penalties are 20 years for theft and 25 years for handling stolen goods.
[2] Ibid s 6I.
19A victim impact statement, dated 18 May 2021, has been provided by the owner of one of the stolen boats that was brought into Victoria. The theft occurred soon after devastating bushfires, which his sister had survived. The day that the boat was stolen, he had planned to spend precious family time with her, on the boat. He was extremely disappointed that they were unable to do so. The boat and its contents held significant sentimental value. The owner and his father had worked hard to purchase the boat, only two months prior to its disappearance. The contents of the boat, including a water ski, which his father had successfully used in slalom competition in the past, have not been recovered. Dealing with the insurance company after the theft was frustrating and considerably inconvenient. His family have now sold their property in the area.
20For the victim and his family to have their property taken, in light of its emotional and sentimental value, must have been a traumatic experience. Fortunately, the boat was recovered after about one month. I take the victim impact statement into account.
21While no other victim impact statements have been provided, I accept that the inconvenience and stress associated with the loss of valuable property, even for a limited period of time, can be significant.
Roles in offending
22There is no clear agreement about your roles or the motivation for your offending conduct.
23The prosecution submits that there is an inescapable inference that the boats were stolen as part of a rebirthing exercise. When they were located on 28 February, all identification had been removed. The four boats were all stored inside premises owned or rented by you, Mr Mifsud. You were the owner of a spray-painting business.
24There is no direct evidence regarding who was “the ringleader” of the operation. The prosecution has submitted that you, Mr Spits, were at the head of the operation in the unfolding of events, as you were responsible for stealing and/or delivering the boats to Mr Mifsud's storage facilities.
25It was not accepted by the prosecution that you, Mr Mifsud, were a passive player in the operation. While you cooperated by taking police to the shed where three stolen boats were stored, you did not admit that you knew when they were stored that they were stolen. The prosecution submits that your record of interview was not completely truthful.
26The prosecution submitted that when you hired the storage shed at the end of January 2020, the reason you disclosed was deliberately false. The owner recalled that you said that “you had some mates who may want to put their boats there”. You told him that they were skiing out on the river and when they finished, they would leave their boats in the shed. The prosecution position is that given that the first boat was stolen and brought into Victoria on 27 January 2020, I should conclude that the shed was rented in order to accommodate the storage of the stolen boats, that you knew of the criminal activity and that you were involved in the rebirthing scheme.
27Mr Spits, you concede that you committed the offences in order to gain a financial benefit, although no further concession has been made. It was not agreed that the purpose of the thefts was to rebirth the boats. It was submitted on your behalf that there is no evidence that you did any more in relation to a rebirthing exercise than bring the boats to the premises for storage. I note, however, you have pleaded guilty to offending where it is clear that you played a more significant role, as you were involved in the dishonest conduct of providing the boats.
28There is no evidence that you contributed to the rent paid for the storage shed. Your counsel strongly rejected the assertion that you were the “architect” of the operation. It was submitted on your behalf that both accused were equally involved in the offending, as was the 3rd person who was also present when a boat was unloaded, the night before your arrest. That person has not been identified. You state that you came to know your co-accused through the speed boat racing industry.
29Mr Mifsud, your position is that when you rented the shed, you did so at the request of Mr Spits. You do not admit at the time that you knew that it was for the purpose of storing stolen boats. You maintain that you would be paid for work that needed to be done to the boats, although you concede that you possessed the tools to cosmetically ‘rebirth’ the boats. Your counsel pointed out, however, that no items, such as polyurethane paint were located in your workshop at the time of your arrest. Further, you did not have the capacity to recreate VIN numbers nor to change the interior of the boats. It was submitted that there was no evidence that a significant financial gain was pending for your offending.
30There is no dispute about what you told the owner of the shed, at the end of January 2020. A verbal agreement was made between you and the shed owner. It was agreed that you would pay $390 per month in rent. You immediately paid the first month's rent in cash. You were given a key to the front gate of the owner's yard and a key to the three roller doors in the shed. The owner installed CCTV cameras on the property on Friday, 7 February 2020. You maintain that you did not deliberately lie to the owner when you arranged for the shed to be rented, as you were not aware that the boats were stolen. Further, that you were not involved in removing the identification markings from the boats and trailers.
31You met your co-accused through boat racing. In around 2014, you were asked by Mr Spits to drive a boat called “Armed Forces”. You were then asked to become part of his “Arkham Asylum” Ski Racing Team as a driver in 2016. You say that it was as a result of Mr Spits being heavily involved in the boat racing industry, that you initially had no idea that the storage he requested was for stolen items.
32It is not clear when the first two boats were placed into the shed. The CCTV footage reveals that the third boat was backed into the shed at around 10.40pm on 27 February 2020. The fourth boat was located at your spray-painting business the following day.
33You now admit that you were not telling the truth in your record of interview about your knowledge of the stolen boats, around the time of your arrest. As a result of the boats being delivered at night, the way they were delivered and the fact that the serial numbers were removed, you developed suspicions that the property was stolen, although exactly when you developed this understanding was not articulated by your counsel. Within a short period of time, you were aware of the publicity associated with the thefts and it became clear to you that the boats were in fact, stolen. The fact remains that by your plea, you admit that by 28 February 2020, you knew or believed all four boats were stolen. I will sentence you on this basis.
34You perceived Mr Spits to be a local hero, who had previously owned a successful ski racing team that competed in the local “Southern 80” boat race. Your impression of him was that he was wealthy. You say that when Mr Spits asked you if you knew of any spaces available for the storage of boats, you did not anticipate that it was for the storage of stolen property. It was only later that you realised this.
35When considering the evidence in this case, I accept the prosecution position that it can be inferred that the boats were stolen to be resold. There is no other reasonable explanation. I consider that it was impossible to steal these boats for a financial benefit, without their appearance and identification being changed. There are limited venues available where these ski boats could be used. Unless their identity was changed, there is a real chance that the original owner would immediately recognise the boat when it was seen again. The only way that a substantial financial advantage or benefit could have been derived from the offending, was for the identity of the boats to be disguised.
36Mr Spits, while I will not punish you for the theft of the two boats in New South Wales, you were well aware that they were stolen items when you brought them into Victoria. You were actively involved in the theft of the two other valuable boats. You removed them at night. You also delivered the boats to be stored, at night. You were well versed in which boats to deal in and their saleability in the market. When considering your overall criminality, I am satisfied beyond reasonable doubt that you were a significant part in this criminal enterprise and that your level of culpability is higher than that of your co-offender.
37You admit that your financial circumstances were dismal, that you were depressed and that you were addicted to cocaine. Your personal circumstances provided significant motivation to achieve a financial benefit.
38When considering your role in the offending, Mr Mifsud, there is no evidence that you were actively involved in the selection or the theft of any of the boats.
39In your interview, you initially denied knowing that the boats were stolen. You now admit that this was untrue and even if you did not know at first that the boats were stolen, you developed suspicions soon after and by 28 February 2020, you knew or believed the boats were stolen.
40Through your guilty pleas, I accept that you knew the boats were stolen. While I am unable to ascertain what level you played in this criminal enterprise, I am satisfied beyond reasonable doubt that you were more than a passive participant. In your interview, you said that you expected to be paid for work that needed to be done to the boats. Your business expertise was as a panel beater, as well as carrying out boat repairs and boat repainting. I am satisfied to the requisite standard that you intended to work on the boats, for some financial reward, notwithstanding that you knew or believed the boats to be stolen.
41Further, you arranged and paid for the storage of the boats in a shed. You did not disclose to the owner that it was Mr Spits, a well-known member of the boat racing community, who required a storage space. You did not seek recompense from Mr Spits for the storage fees you had outlaid. You were the only one to have a key to the shed and were present when all the boats were delivered at night, when all their identification had been removed.
42I am unable to conclude to the requisite criminal standard that you were an equal participant with Mr Spits in this criminal enterprise; however, as I have said, I consider you to be an active participant who was prepared to receive some financial reward for that participation. I am unable to conclude the extent of that financial reward.
43I consider that both accused's offending is objectively very serious. The total value of the property either handled or stolen, is approximately $525,000. Fortunately, all the boats and trailers were recovered and returned to their owners.
Brett Spits- personal circumstances
44Brett Spits, you have a number of relevant prior convictions for dishonesty related matters that were dealt with in the summary jurisdiction between 2003 and 2010. In November 2007, you were found guilty of dishonesty offences where the value of the property was in excess of $60,000. You have received a range of penalties, including two suspended gaol sentences and a 12-month corrections order, which included therapeutic conditions. In 2017, you were found guilty of two charges of contravening an intervention order and a financial penalty was imposed.
45Although you were charged with the current offences in February 2020, the complete brief of evidence was not made available until late 2020. You indicated that you would plead guilty and your plea was entered on 15 December 2020. The prosecution concedes it was at an early stage in the proceedings. Your plea has a significant utilitarian benefit. You have saved the Court and the community the time and expense of running a trial. In those circumstances you have facilitated the efficient administration of justice and are entitled to a benefit for that. This is particularly relevant given the delay in jury trials that has resulted from the COVID‑19 pandemic. I consider the utilitarian benefit of your pleas to be enhanced by the fact that those pleas were entered during the pandemic.
46Your plea of guilty also demonstrates an acceptance of responsibility for your offending. Your counsel submits that it is consistent with remorse. I accept this submission and will return to the aspect of remorse later in these reasons.
47It is conceded that your motivation for offending was in order to obtain a financial benefit, although no specific instructions or details have been provided. As you outlined to police in your record of interview, you had previously owned a construction company for around seven years which had been successful. However, in 2017, your business deteriorated, resulting in your filing for bankruptcy and incurring a debt of around $20 million. In those circumstances, it was disputed by your counsel that at the time of your offending you owned multiple ski racing boats, as you had been declared bankrupt and had lost everything.
48You were born in Australia on 15 January 1983 and are now 38 years of age. Your parents have been married for approximately 40 years and continue to share a healthy relationship. You are the eldest of three children and your upbringing was in a positive environment.
49You attended the Mill Park Secondary College and left school at the end of Year 9 before completing a three-year carpentry apprenticeship. You have worked in this industry throughout your life. You obtained a master builder’s licence in 2010 and then went into business for yourself, up until 2017. As I have already mentioned, you were then declared bankrupt. You resumed employment in 2021.
50You have a history of illicit substance use which began when you used cannabis between the ages of 16 and 18 years. You started to regularly use amphetamines and cocaine, developing an addiction by the age of 24. You ceased your substance use for approximately nine years. You relapsed, however and between December 2019 and February 2020, you were using approximately one gram of cocaine daily. You stopped using illicit substances soon after your arrest in this matter.
51You were previously in a long-term relationship that ended approximately 10 years ago. You maintain an amicable relationship with your ex-partner and share custody of your son, who is now 10 years of age.
52You are currently in a relationship that has been ongoing for approximately eight years. You were married four years ago. You have two children, who are aged four years and six months respectively. Your partner continues to provide support for you.
53Following the period where your business collapsed, you experienced associated stress, anxiety and depression. You were shamed on social media and harassed by members of the community. Your family eventually moved from Melbourne to Echuca for a period of about two years. You remained unemployed. While residing in Echuca, you describe a significant escalation in your depressive symptoms and an increased dependence on illicit substances.
54Your current offending has been the subject of adverse media coverage in the local community, which has added to the impact of your current predicament. As a result of this, you have moved back to Melbourne.
55Your family now reside in rental accommodation in St Kilda. Your partner works as an accountant and you obtained employment as a crane operator in January 2021. A letter from your employer, Mr Timothy Smith, has been provided. He writes that within a short period of time, you have developed a trusted role as a reliable leader in his business. He is aware of your current circumstances. I am told that he will employ you again when you are released from custody.
56You left home at the age of 18 and approximately one year later, developed depression, a condition that has been recurrent since that time. You were admitted to hospital in the context of a depressive and suicidal state in 2009, after the breakup of your earlier relationship. Since that time, you have been prescribed antidepressants and have been under the care of general practitioners. Your family and friends have continued to provide you with practical and emotional support during periods of depression.
57On 20 September 2017, you were referred to the Northern Area Mental Health Services via the Emergency Mental Health at St Vincent's hospital, after you attended in an ambulance, following an attempt to commit suicide by overdosing on a combination of drugs.
58At the request of your solicitor, a report for the Court has been prepared by Mr Matthew Staios, clinical neuropsychologist, dated 20 May 2021. He makes the following findings:
·You reported experiencing symptoms of stress and anxiety in the context of your case pending hearing in court.
·No cognitive or perceptual disturbance was noted.
·Insight and judgment into your current offending, mental state and general psychological healthcare needs were intact.
·You were able to appreciate the impact of your actions. You acknowledge the need to continue to engage with therapists in the community to address your psychosocial vulnerabilities and limited coping mechanisms.
·You displayed the capacity to express empathy in relation to those affected by your offending. You expressed remorse, which appeared to be genuine.
·Your personality profile was characterised by depression, anxiety, avoidant tendencies and a negative self-image. Your offending has occurred in the context of poorly controlled symptoms of depression, significant financial stress and substance addiction.
·Your substance use was a means of coping and escapism following the collapse of your business.
·Had your mental health been managed professionally prior to your offending, it is possible that you may have refrained from this conduct. You are prepared to accept professional intervention in order to assist your mental health in the future.
·Given your longstanding and poorly managed history of depression in combination with periods of self-harming behaviours, concern was expressed that you will experience significant deterioration in your mental state if you are required to serve a term of imprisonment. A term of imprisonment will be particularly onerous, very likely to lead to a decline in your mental state and will impact on your rehabilitation prospects. You have the capacity to successfully complete a community correction order.
·You are encouraged to engage with a psychologist in the community to manage your mental health care needs.
·A referral to a drug and alcohol service would also be of benefit to assist with relapse prevention.
59While your mental health has not played a causal role in your offending, it is Mr Staios' opinion that imprisonment will have a significantly adverse effect on your mental health and the period you will serve will weigh more heavily on you than on a person in normal health.
60Your counsel, therefore, submits that your mental health issues would make the burden of imprisonment more onerous for you than for others. Further, that your mental state is very likely to decline and to deteriorate in custody. It is submitted that the fifth and sixth limbs of Verdins[3] are enlivened. This was not disputed by the prosecution. I accept this submission and shall take these factors into account.
[3]R v Verdins (2007) 16 VR 269.
61When considering your offending, I consider that your moral culpability is high. General deterrence, denunciation and just punishment are all significant sentencing factors. Specific deterrence is also relevant in light of the number of offences and your criminal history.
62While it has been conceded that a term of imprisonment will be imposed in your case, your counsel has submitted that it would be appropriate to impose a Community Correction Order as part of the sentencing disposition here. The maximum term of imprisonment available for a combination disposition is 12 months.
63The prosecution submits that a term of imprisonment with a non-parole period is appropriate.
64In my view, even if a Community Correction Order was imposed in combination with the maximum term of imprisonment, it is not a realistic sentencing option. I consider that the objective gravity of your conduct, in the context of your criminal history, necessitates the imposition of a term of imprisonment, notwithstanding the mitigating material provided on your behalf. I am unable to accede to your counsel's submission.
65I am cautious of your prospects of rehabilitation. You are fortunate to maintain the support of your wife. You have provided a positive reference from your employer and employment will be available to you in the future. You have a good relationship with your children.
66You have not relapsed into drug use for around 15 months. While you continue to self-manage your psychological issues, you accept the recommendation made by Mr Staios that you require assistance in the long term.
67A period of supervision provided by parole will form part of the sentence, to facilitate your rehabilitation and will be of benefit both to you and to the community. In all the circumstances, I am prepared to conclude that your prospects for rehabilitation are reasonable.
68I take into account that measures taken by Corrections to deal with the COVID-19 pandemic mean that your imprisonment will be more restrictive and isolating. I am aware that you will spend the first 14 days in isolation, due to quarantine requirements. The evolving nature of the pandemic will affect your capacity to receive any personal visits from family members, which will increase the burden of imprisonment.
69The provision of educational and vocational courses has been reduced at the current time. Overall, the measures taken by Corrections to deal with the COVID-19 pandemic may add to your hardship as a prisoner. This is not only due to your personal position of confinement but also the hardship you will undergo being absent from your family, especially knowing that your wife and children will be functioning in the current community environment without your support. These hardships justify a sentencing benefit.
70I will impose your sentence at the conclusion of my reasons and will now deal with Mr Mifsud.
Lincoln Mifsud- personal circumstances
71Lincoln Mifsud, you were born on 1 November 1975 and are now 45 years of age. You have been married for almost 14 years and have five daughters: four of whom are aged between 4 and 12 years old and one from a previous relationship, who is now aged 22.
72You grew up in Mount Martha and completed Year 12 at the Mornington High School in 1994. You are a self-taught panel beater and spray painter and started your own business, LWM Panels, when you were 18 years of age.
73In 1997, you moved to Echuca. You were employed as a spray painter at another business for two years before restarting LWM Panels. Your business involved restoring vehicles, truck repairs and repainting, vehicle accessory supply and fitting, insurance work, boat repairs and boat repainting. Your business has been successful over the last 16 years and you have employed six apprentices and six tradesmen throughout that time.
74Your offending received adverse media coverage, which had a direct impact on your business which has collapsed. Shortly after the offending came to light, existing customers came to remove their vehicles and new work has not been forthcoming. You have been unable to maintain the employment of your staff.
75In a letter to the Court, dated 20 May 2021, prepared by your accountant, Mr Greg Dwyer, he confirms that the gross revenue derived from your business in the year ending 30 June 2019, was $263,036. The gross revenue derived from your business in the 12 months from the date of your offending declined dramatically, to only $3,051. As a result of your reduced income, you were unable to service your loan and required to sell your business. You were unsuccessful in seeking employment for some time, in receipt of a Job Seeker subsidy and a part-time income derived from your spouse. This had a significant impact both financially and emotionally upon you and your family. You are now employed as a contractor at a panel beating and spray-painting business in Moama.
76In a letter to the Court from Victorian Cardiac Care, dated 8 February 2021, it confirms that you suffer from supraventricular tachycardia. This heart condition is currently stable and requires you to take medication twice per day. You are currently on a waiting list for a procedure at the Austin Hospital in Melbourne.
77The loss of your business and the impact of the legal proceedings have had an impact on your mental health. You suffer from depression and anxiety and have been prescribed medication from your local general practitioner.
78You have no prior convictions and do not have any other criminal matters outstanding. You are someone of previous good character. You are entitled to call upon that good character in your plea.
79You are a member of a loving family and your wife and mother-in-law were present at your plea hearing. They remain supportive of you.
80Your mother-in-law, Ms Mandy Zanker, provided a written reference and also gave character evidence on your behalf. Her belief is that you are devastated by your conduct and the effect that it has had on your family.
81She describes that since the time of your arrest, you have suffered greatly. The impact of your criminal conduct on yourself, your wife and daughters, as well as your extended family, has been significant. You have spent a lot of time alone since your offending was revealed.
82I am told that in the past, you were a favourite son of your local community. You have suffered a significant fall from grace. You have been disgraced in the local media.
83Ms Zanker stated that your conduct is a real disconnect to the man she knows. You are a loving and supportive husband. Your daughters rely on you, as you have been a wonderful role model for them and you take your role as a parent very seriously. You have always been available to anyone who needs help and Ms Zanker called you her “go-to man”.
84Your mother-in-law believes that if you could take your conduct back, you would do that “in a heartbeat”. You deeply regret your actions. She writes “what you have done is out of character for the dedicated and quiet family man that I know”.
85Your mother-in-law acknowledges that you are not a victim here and you must accept the consequences of your actions. The impact of your offending and potential consequences, however, will have a significant impact on your wife, your children and the rest of your family. Ms Zanker believes that your family would be broken without their husband and father, through no fault of their own.
86Your family have suffered as a result of your being charged with these offences, as the negative publicity has also had a direct impact on them. You intend to move away from Echuca at an appropriate time.
87I consider that it is likely that family hardship will follow from offending of this kind, particularly in a small community where you have been the subject of media interest. While the reporting of your conduct has been a legitimate topic, it has added to your stress associated to these proceedings.
88The references provided on your behalf attest to your previous good character. Your referees are people who know you in both a personal and professional capacity. They confirm that you are known to be a decent, hardworking and trustworthy person. To your credit, your referees expressed their surprise at your current situation. They were shocked to learn of your conduct as you are regarded as an upstanding member of the local community.
89The filing hearing in your matter took place on 3 March 2020. Your case proceeded as an “informant only” committal at the Shepparton Magistrates' Court on 30 November 2020. At that time, you were facing nine charges and pleas of not guilty were entered. On 20 January 2021, at the initial directions hearing in the County Court, your matter resolved and your pleas of guilty were entered.
90The prosecution accepts that while your plea of guilty was not entered at the earliest opportunity, it was at an early stage. Your plea has a significant utilitarian benefit. You have saved the Court and the community the time and expense of running a trial. In those circumstances you have facilitated the efficient administration of justice and you are entitled to a benefit for that. Your pleas of guilty are particularly relevant, given the delay in jury trials that has resulted from the COVID-19 pandemic. I consider the utilitarian benefit of your pleas to be enhanced by the fact that those pleas were entered during the pandemic.
91Your pleas of guilty also demonstrate an acceptance of responsibility for your offending. Your counsel submits that it is consistent with remorse and as I have already mentioned, this is consistent with the content of the character evidence that has been provided. I accept that your remorse is genuine and I am prepared to moderate your sentence to reflect that.
92It is acknowledged by your counsel that your role in this offending is a significant aspect of the overall criminality in this case. It is conceded that the principle of general deterrence is significant. While the principle of specific deterrence may also be relevant, you have already suffered from the impact of your offending and I do not give it significant weight in the sentencing mix.
93I consider that general deterrence, denunciation and just punishment are all significant sentencing factors. Your good character and reputation have been indelibly tarnished by your offending. I consider that rehabilitation is a relevant consideration, in light of your lack of criminal history.
94You have not reoffended, despite losing your business and you maintain the support of your family. In light of your previous good character, I assess your prospects for rehabilitation as being excellent.
95When considering the appropriate penalty, your counsel submitted that a significant Community Correction Order would be appropriate and satisfy all the relevant sentencing requirements in your case. The prosecution does not accept your counsel's submission, saying that an immediate term of imprisonment is the only appropriate disposition in a case such as this.
96An assessment for a Community Corrections Order was undertaken on 17 June 2021. When you presented to the assessing officer, you showed some insight into the effect of your offending conduct on the victims and expressed remorse for your behaviour. You advised that since your offending, you have sold both your family home and your business and you currently reside at a caravan park. Should you change your address, you are prepared to communicate that information to the office of corrections.
97You do not present with any issues relating to substance abuse. A mental health condition is not required. You are not identified as having any treatment needs, although participation in programs to assist in your personal development and rehabilitation has been recommended as an appropriate condition of the order.
98You have been assessed as a low risk of general re-offending. Given your low risk of recidivism, minimal intervention is recommended, in order to allow you to continue with your largely pro-social lifestyle.
99While you now have employment, you acknowledge that you do have the capacity to comply with obligations pertaining to a corrections order.
100Your heart condition may be a relevant consideration relating to the allocation of unpaid community work. Corrections are aware of this and will take that into account when determining the appropriate community work sites.
101You have indicated that you are willing to comply with a corrections order and you have been found suitable for such an order.
102I have considered the decision of Boulton v The Queen[4]. In particular, that:
a CCO may be suitable even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment and a court may find that, in view of the objective gravity of the conduct and the personal circumstances of the offender, a properly conditioned community corrections order of lengthy duration is capable of satisfying the requirements of proportionality, parsimony and just punishment, while affording the best prospects of rehabilitation.[5]
[4](2014) 46 VR 308.
[5]Boulton v the Queen (2014) 46 VR 308, 338 [131].
103Determining the appropriate sentence in your case has been a difficult decision. I am persuaded that an alternative to a custodial sentence is the appropriate outcome here. In your case, I accept that the imposition of a conviction and a Community Correction Order is necessarily punitive in nature and can be tailored to meet your rehabilitative needs. It will be apparent from the terms of the corrections order that I impose, that you have avoided a term of imprisonment by the narrowest of margins.
Brett Spits and Lincoln Mifsud- Sentence
104I take into account the maximum penalty for these offences. It has been difficult to find similar cases that are entirely demonstrative of current sentencing practices as most cases involving a “Continuing Criminal Enterprise” are to do with fraud. This is not the case in this matter, notwithstanding the monetary value of the property.
105Continuing Criminal Enterprise offences do not necessarily or automatically attract a higher penalty. Parliament has, through the relevant provisions, expressed an intention to deter persons who persistently engage in criminal behaviour that affects the economic wellbeing of individual victims and the community in general. I must consider all the circumstances of each individual offence in determining the appropriate sentence. The prosecution accepts that when considering a continuing criminal enterprise charge, the available penalty is a “yardstick” and there is no necessity that a more severe sentence be imposed. The Court has the capacity to do so, but it is not required if it is not appropriate.[6]
[6]R v Grossi (2008) 23 VR 500 [45].
106The prosecution accepts that when considering a continuing criminal enterprise charge, the available penalty is a yardstick and there is no necessity that a more severe sentence be imposed. The court has the capacity to do so, but it is not required if it is not appropriate.
107While you will both be declared as continuing criminal enterprise offenders as a result of your offending, I am satisfied that the maximum penalties that are ordinarily available for the offences of theft and handle stolen goods are sufficient to deal with your matters. The increased maximum penalty for continuing criminal enterprise offences is not a necessary consideration here.
108Mr Spits, the principle of totality needs to be considered in light of this being a course of criminal conduct. I have decided that there must be some but not total cumulation in the sentences I impose. I have endeavoured to tailor your sentence to ensure that it is proportionate to your overall criminal conduct.
109I have considered the principle of parity of sentence. It does not amount to a mathematical equation and I am required to balance a number of factors in this case. I have concluded that Mr Mifsud, your moral culpability is less than yours, Mr Spits, as is your active role in this offending. There is also a considerable difference in your criminal background as this is the first time you, Mr Mifsud, have committed criminal offences. Mr Mifsud, you are previously of good character. I accept that your future prospects, Mr Mifsud, are excellent as opposed to yours, Mr Spits, being reasonable only. These factors have resulted in a disparity in the sentences I will impose.
110In relation to both accused, you are both declared to be “continuing criminal enterprise offenders” I direct that this be entered into the court record.
111Mr Spits, will you please stand?
112In relation to the charge of handle stolen goods, you are convicted and sentenced to one year and four months' imprisonment.
113In relation to each count of theft, you are convicted and sentenced to one years’ imprisonment.
114I direct that one year and four months be the base sentence. I direct that four months for each charge of theft be cumulative upon each other and upon the base sentence.
115That is a total effective sentence of two years' imprisonment. I fix a non-parole period of one year and three months.
116The declaration I make under s6AAA is, had the matter not proceeded as a plea of guilty, I would have imposed a sentence of three years, with a non-parole period of two years. Have a seat please.
117Mr Mifsud, would you please stand?
118You are convicted and ordered to be placed on a Community Correction Order for two years. I direct that you are to perform 350 hours of unpaid community work over that two-year period. I order that 50 hours of treatment and rehabilitation can be counted as hours of unpaid community work. I also direct that you must participate in programs or courses that are consistent with achieving the purpose of treatment and rehabilitation as directed.
119You are required to attend at the Echuca Community Correctional Service within two days of the commencement of the order. This is to be done via telephone.
120I confirm that the order will last for two years until 17 June 2023 and that it is imposed with conviction. Thank you. Mr Mifsud, you can take a seat in the body of the court.
121Thank you, Mr Spits, you are excused.
122Given that no photographs were exhibited on the plea, the only way they can be provided is if there is no objection by the parties. I have a copy of the depositions with the relevant photos, which I will pass down for you to have a look at.
123I'll ask Ms Cipollone to approach your client, Mr Turner. If you want to assist, that's fine, with the signing of the order. I will remain on the Bench.
124In relation to the media application for any photographs, I confirm that there is no objection to the provision of the photographs contained in the depositions that are relevant to these proceedings. The photographs of the caravan are not relevant, I'll ask my associate to hand them back to Mr Gray, so that we can tag the photos that are available.
125Mr Mifsud, would you please stand? Sir, do you understand the Community Correction Order that's been imposed?
126ACCUSED MIFSUD: Yes, I do.
127HER HONOUR: Are you prepared to comply with the order?
128ACCUSED MIFSUD: Yes, I will.
129HER HONOUR: Thank you, have a seat please.
130Mr Gray, I failed to provide the declaration for 6AAA for Mr Mifsud. In that regard, Mr Mifsud, had your matter proceeded as a plea of not guilty, the sentence I would have imposed would have been a term of imprisonment of one year and 10 months, with a non-parole period of one year and two months.
131MR GRAY: The court pleases.
132HER HONOUR: It has been recommended by Corrections that an aspect of rehabilitation can be counted towards hours of unpaid community work. It's for that reason that as part of the order.
133MR GRAY: It's 50 hours, I think, Your Honour.
134HER HONOUR: Fifty hours, yes.
135MR GRAY: Yes, Your Honour.
136HER HONOUR: Thank you. Are there any further orders sought?
137MR GRAY: No, Your Honour.
138HER HONOUR: Is there anything further, Ms Garde-Wilson?
139MS GARDE-WILSON: No, Your Honour.
140HER HONOUR: Mr Turner?
141MR TURNER: No, Your Honour.
142HER HONOUR: All right, thanks. Your client will have the phone number of the corrections office on the order. Given the current restrictions, he's not required to attend in person, but is required to contact them by telephone, within two working days after the order commences.
143MR TURNER: Yes, Your Honour.
144HER HONOUR: Thank you both very much and thank you, Mr Gray.
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