Director of Public Prosecutions v Stephenson

[2018] VCC 409

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR-18-00052

DIRECTOR OF PUBLIC PROSECUTIONS

v

DANIEL STEPHENSON

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	6 April 2018
CASE MAY BE CITED AS:	DPP v Stephenson
MEDIUM NEUTRAL CITATION:	[2018] VCC 409

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr C. Alan	Office of Public Prosecutions
For the Accused	Mr J. Miller	Sullivan Braham

HIS HONOUR:  

1Daniel Stephenson, you have pleaded guilty to one charge of burglary;
one charge of theft; one charge of conduct endangering persons; one charge of attempted armed robbery; and one uplifted charge of drive whilst licence suspended.  Those crimes carry maximum penalties of ten years; ten years; five years;
20 years; and two years, respectively.

2You are 22 years of age and are to be sentenced, in my view, as a young offender. 

3You have pleaded guilty at the earliest reasonable opportunity and I accept that now, at least, you display appropriate remorse for the offending that you did.  You must also, of course, get the utilitarian benefit of that plea of guilty. 

4In your situation, which is somewhat unusual, you were present in court whilst your co-accused participated in Koori Court.  It was clear, watching your demeanour and the way you conducted yourself in the dock, that you do have genuine remorse and concern about what had taken place and I observed that you were listening carefully.

5You do have family support and a number of members of family are in court. 

6You do have prior findings of guilt, all, as I understand it, in the Children's Court.  They are of a relevant nature, but it has to be viewed in the sense that you are still only 22 years of age.  Indeed it would appear that up until recently, there had been something of a four year period of time when you had not offended, which may or may not have been due to a relationship that you have been in.

7The circumstances of the offending are concerning indeed.  Between 26 August 2017 and 29 August 2017, you burgled a house in Warragul when the residents were away on holidays.  You attended the unoccupied home, you gained entry through an external manhole and broke through the plaster ceiling to access the house.  You searched the entire house, ransacking every room.  You stole jewellery, war medals and money. 

8You also took keys from the house and used them to open a shed at the rear of the property.  You there located a gun safe and used available tools from the shed to force the gun safe open.  From the gun safe you stole two 303 rifles, two 12 gauge shotguns and a handgun, which in fact was a sawn-off .22. 

9You also took the keys to a VW Golf that was garaged at the house.  You used the keys to gain entry to the car and drove away from the house in the stolen car.  That is a serious example of burglary and it can only be assumed that you were going to sell the firearms, or at least put them into a situation where they would have been a danger to others.  When one starts stealing firearms for either your own purposes or to put out into the general criminal population, it is a serious matter indeed.

10On the morning of 29 August, you were in Sale driving that stolen vehicle and in possession of some of the stolen property.  You, by chance, met up with your co-accused, Ms Rose.  You told her that you needed money and that you had planned to commit an armed robbery.  The two of you then spent the rest of the day together, driving around Sale, spent time with your mother and siblings in Sale. 

11At some stage during the afternoon - and this relates to her, who I have not, as yet, sentenced and will not be for some period of time.  She discovered the two 303 rifles in the rear compartment. There was also ammunition throughout the stolen car. 

12At approximately 5.30, you attended the Gippsland Centre, Sale, where purchases were made at the Target and the Priceline Pharmacy.  The two of you then left the pharmacy and drove around Sale together, looking for a place to rob, went to the shops on Guthrie's Parade, at the intersection of McArthur Street, parked the vehicle and watched for a while.  You then decided it was too busy and drove on.

13At approximately 6.45 pm, the two of you drove to the shops on Dawson Street, at the intersection of Guthridge Parade.  There, you parked the car on Guthridge Parade, directly outside the general store and went in.  You placed a handgun in your jacket pocket and tied a red and white bandanna around your face.  You then left the car running and the driver's door open, as you walked into the shop.  Your co-accused remained in the car and I will deal with her culpability at a later time.  I simply raise that at the moment because it seems to me that there is
a distinct difference between you and her, insofar as parity is concerned and no one seems to be arguing anything to the contrary.

14When you went in, you were the only customer in the store.  The owner/operator, Mr Graham Robbins, was the only staff member in the store.  You took a couple of steps inside and demanded money from him.  You were standing approximately four metres behind him, behind a glass counter, which I have now seen a photograph of.  He told you he would not give you any money and that he would ring the police.  He then reached for the store phone and rang for the police.  You then fired a shot from the handgun, with the round striking and shattering the glass counter in front of him.  The impact point of the bullet with the glass counter was only a foot away from where he was standing.

15That is an attempted armed robbery, not an armed robbery and you then obviously fled.  The fact of the matter is that there was clearly a degree of foresight went into it, looking for places to rob.  You had in fact decided that one place was too busy.  You had enough foresight to leave the car running.  You had loaded the firearm, albeit with, as your counsel has pointed out to me,
rat-shot and you fired it.  It is a serious matter indeed when a person to do an armed robbery on such a soft target as a general store, is prepared to load
a rifle, which would indicate their preparity to use it and then in a situation where you would not get the money, fire it.  If not directly at, certainly in the direction of the person who was refusing you the money. 

16I have to be careful not to sentence you for any form of reckless endangerment, insofar as all that is concerned, but when it is taken all into account, it is
a serious example indeed of an attempted armed robbery. 

17In any event, you ran from the store into the waiting car and you drove away south.  As you drove away, you told your co-accused that you had fired the handgun because he would not give you the money.  The two of you then drove around Sale for a while, parked near Lake Guthridge and threw materials away. 

18At some stage you took the spent cartridge out of the .22 and threw it away and reloaded the gun, which is of concern in itself. 

19As the two of you drove away from Lake Guthridge, you were sighted by police, who took up the position behind you as you travelled north. 

20I then, I do not think, have to go into all the mechanics and different streets that you went through in Sale, but you were driving at grossly excessive speeds in extremely dangerous manner for a period of time.  People had to jump out of your road, you ran through bollards and as I say, it is a - you are charged with reckless endangerment and causing of serious injury and you are lucky the charges are not more serious. 

21I take it that there has been negotiations took place in all this, so I have to be careful not to sentence you for matters which you have not been indicted upon, but it is, as I said, that is a serious example, again, very serious of reckless endangerment.

22At the time your learner's permit was suspended for six months and I simply say, I am not going to go into all that.  Simply say in respect to that, you will be sentenced to three months, totally concurrent and we will leave it at that. 

23You were interviewed and essentially answered "no comment" or said that you could not remember and your co-accused did a record of interview, which basically confirms what I have already said.

24You have now heard twice the victim impact statement read out.  The owner and victim was clearly not a young man and in his victim impact statement, points out very articulately the reasons why offending such as this is regarded as so serious.  He said that he and his wife had owned the business for about 19 years and were desperate to sell it, due to their age and that they did not have the energy required to successfully run a seven days a week business.  They have received offers to buy it, but they were not sufficient. 

25The impact of what you did to them, or to him, as he said, "was quite similar to the straw that broke the camel's back."  It placed stress on their relationship and they had to take an offer that was well under what they viewed their business as being worth and they were finding it almost impossible to operate the business.  He pointed out that, "Unfortunately we were forced to finish our working lives because of a crime which, at our age, was clearly frustrating and economically devastating.  Our only current income is the age pension and my wife has applied for a Newstart allowance."

26That is the effect of what you did and that is one of the reasons that condign punishment must be imposed.  In this situation there is no application of the principles in Verdins, and I will go through matters personal in a moment.  It calls for general and specific deterrence, denunciation, as well as appropriate punishment.  In your circumstances, where you were prepared to pull a trigger and shoot in the direction of a person and then in fact reload the gun and driving the way you did, community protection must also play a part. 

27I then look at matters personal to you, in terms of the length of the sentence.  You are still only 22 years of age.  That is important and as I said during the process of the Koori Court that I observed you watching, I think that you probably realise that this is a one-way ticket if you continue to conduct your life in this way. 

28Tendered on your behalf, were a letter from your partner of some years, that describes how you help care for a brother.  There was also a report from
Mr Ball, the psychologist, as well as certificates, you have done courses in gaol and those matters go very much to your credit.  It would seem that you are not using in prison, which is of some comfort.  It is not a hard thing to do.

29Your counsel provided succinct and helpful submissions.  He pointed out that
I take into account the early plea of guilty and I do; the fact that you are a youthful offender and I do; the fact that it is the first time you have ever been in adult custody and it has been a salutary experience to you and I do; and you have demonstrated the ability to take part in rehabilitative programs and I take that into account as well.

30Your background was described by your counsel as "turbulent".  You have
a problematic relationship with your mother.  You have a reasonable relationship with your step-father and six siblings.  You spent time with your maternal grandmother during your teens and at times you have been homeless. 

31You left school in Year 8.  You worked in a variety of different jobs since then.  Most recently you had worked as a mechanic.  You have done welding and you started an apprenticeship.  Those jobs that I have described were in the 2013 to 2017 period when, as I have pointed out, there was a gap in your offending history.  You put that down to being busy with work and you, at that time, you were already able to, at least, control your drug use. 

32As I have pointed out, you had been in a relationship with your partner and together, you were caring for her 15 year old brother.  It is not suggested that that gives cause to special circumstances for mercy, but I take into account that you undergo the sentence knowing that you have left your girlfriend in that position.

33You have, over the years, engaged in the use of cannabis, methamphetamine and they have been constant in your life for the last few years.  You do not currently have a problem with alcohol and whilst you have used other substances, they do not appear to be a difficulty for you.

34You have undergone courses in gaol, in relation to that drug use and you are considering that when you are ultimately released, a residential rehabilitation may be necessary.  That is a matter for the future and a matter for the Parole Board.  I accept that you have been abstinent from drugs in custody. 

35The report from Mr Ball indicates that you have some symptoms of a personality disorder and I accept that, but it does not give rise to Verdins.  You have had real difficulty with gambling and you have a dependence upon substances. 

36Mr Ball, the psychologist, says there is a clear nexus between the offending and the conditions that you have, but again, as I said, that does not give rise to any reduction in moral culpability or the other principles described in Verdins.

37That is really the circumstances on your behalf.  At 22, the prospects of your rehabilitation are certainly not extinguished.  The risk of you re-offending, as it stands at the moment, were you to use substances again, I think I would have to regard as high.

38As I said, I think that you are presently in a state where you do understand potential consequences of what you did and the actual consequences of what you have done.  I accept that you, in all probability, understand now if not before, what you have done to those two elderly people.  In other words, destroyed their working life and left them to struggle for the rest of their years, as best they can.

39The simple fact at the end of the day, is that I am very much troubled by your age of 22, but the seriousness of the offending does require an appropriate sentence and accordingly, that is what I must do.

40I have taken into account principles of totality, in terms of how I have calculated this sentence.  I have also given you a non-parole period, which is shorter than it might have been in other circumstances, because I do consider that you should be given some incentive to rehabilitate and have an extended period of supervision after your ultimate release. 

41In any event, taking all those matters into account, on Charge 1 of burglary,
18 months.

On Charge 2 of theft, 12 months.

Charge 3, the attempted armed robbery, four years.

Charge 4 of conduct endangering serious injury, two years. 

42I direct that six months of the sentence imposed on Charge 1 and 12 months of the sentence imposed on Charge 4, be served cumulatively upon each other and upon the sentence imposed on Charge 3.

43That gives an effective total sentence of five and a half years.

44I direct that you serve a minimum term of three years before becoming eligible for parole. 

45On Charge 4 of reckless endangerment, I direct that any licence to hold a motor vehicle is hereby suspended for a period of 12 months.

46I direct that 221 days be reckoned as having been served under this sentence.

47As I indicate, I have given you a much earlier opportunity for parole than
I otherwise would because of your age and because of your conduct and your plea of guilty. 

48I make it very clear to you, that had you tried to fight this out as a trial and been found guilty by a jury of these matters, pursuant to s.6AAA, I say I would have given you eight with a six. 

49Any other orders I have to make, gentlemen?

50MR MILLER:  I think they were made the other day, Your Honour?

51HIS HONOUR:  I am sure they were. 

52MR ALAN:  What is Your Honour's sentence on the related summary matter, Your Honour?

53HIS HONOUR:  Three months, concurrent.  And the theft is concurrent as well. 

54All right, yes, you can go now, thank you.

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