Director of Public Prosecutions v Strange
[2020] VCC 827
•11 June 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MILDURA SITTING AT MELBOURNE
CRIMINAL JURISDICTIONCR-20-00551
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TROY STRANGE |
---
| JUDGE: | HER HONOUR JUDGE DAWES |
| WHERE HELD: | Mildura sitting at Melbourne |
| DATE OF HEARING: | 22 May 2020 |
| DATE OF SENTENCE: | 11 June 2020 |
| CASE MAY BE CITED AS: | DPP v Strange |
| MEDIUM NEUTRAL CITATION: | [2020] VCC 827 |
REASONS FOR SENTENCE
---Subject: Criminal Law - Sentence
Catchwords: Burglary – theft – theft of firearms
Legislation Cited:
Cases Cited: s.44 of the Sentencing Act 1991 (Vic)
Sentence:---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms N. Burnett | Mr A. Cecil, Solicitor for the Director of Public Prosecutions |
| For the Accused | Mr G. Davis | Hilton-Wood PTY LTD |
HER HONOUR:
1Troy Strange, you have pleaded guilty to 10 charges of burglary, eight charges of theft and one charge of the theft of six firearms. The offending occurred at commercial premises and houses under construction between 21 September and 29 October 2019.
Charge 1, burglary; Charge 2, theft
2Between 21 and 23 September 2019, you and your co-offender, Luke McCourt, attended the Riverside Golf Club in Nichols Point. You gained entry to a large tool shed located on the course and stole several items, including assorted tools to the value of $2,450.
Charge 3, burglary; Charge 4, theft
3Between 5 pm on 22 September and 1 pm on 23 September 2019, you and McCourt attended a commercial premise, Mildura Trailers, gaining entry to a secure compound by forcing a lock. Once inside you stole several items, including tyres, wheels and tools to the value of $2,650.
Charge 5, burglary; Charge 6, theft
4Between 6.30 pm on 30 September and 7 am on 1 October 2019, you and McCourt attended a commercial premise, Monahan's Truck and Trailer, accessing a secure compound and gaining entry to a large container by forcing the lock. You stole assorted power tools of an unknown value and several wheel chocks, valued at $20-$30 each.
Charge 7, burglary; Charge 8, theft
5Between 3 pm on 7 October and 8 am on 8 October 2019, you and McCourt gained entry to Nu-Edge Solutions, an unsecured commercial premise in Koorlong. You siphoned approximately 1000 litres of diesel from a fuel tank, taking it with you when you left.
Charge 9, burglary
6Between 3.30 pm on 22 October and 8 am on 23 October 2019 you and McCourt attended a residential property under construction in Macarthur Way, Mildura. You gained entry to a container at the address by snapping a lock. No items were stolen.
Charge 10, burglary; Charge 11, theft
7On 24 October 2019, you and McCourt attended a solar farm in Carwarp. You entered the secure compound and searched several containers. You also smashed the window of a vehicle and removed a toolbox from another trailer. The stolen items included the toolbox, its contents and a UHF radio. The total value of the property is unknown.
Charge 12, burglary; Charge 13, theft
8Between 5 pm on 27 October and 8 am on 28 October 2019, you, McCourt and another offender, Marcus Finocchiaro, attended a residential property under construction in Providence Drive, Mildura. You forced open a garage door. Once inside, you stole several items, including gas bottles, assorted tools and building materials to the value of $1,000.
Charge 14, burglary; Charge 15, theft
9A short time later you, McCourt and Finocchiaro attended a residential property under construction in Kidman Court, Mildura, gaining entry to a locked garage by forcing open the roller door. You stole several items, including power tools to the value of $200 and a garage remote control. You left behind two gas bottles and two rollers that you had stolen from the address in Providence Drive earlier that night.
Charge 16, burglary; Charge 17, theft
10Between 3 pm on 28 October and 7 am on 29 October 2019, you, McCourt and Finocchiaro attended a residential property under construction in Coachwood Way, Mildura. You forced open the garage door to gain entry. You stole a large amount of property, including assorted tools to the value of $1,800.
Charge 18, burglary; Charge 19, theft of firearms
11Between 8 pm on 28 October and 7 am on 29 October 2019, you, McCourt and Finocchiaro returned to the property in Kidman Court. You gained access to the rear shed using the remote control that you had stolen the night before. A large gun safe was stored in the shed. You attempted to open it without success, so you placed it onto a trolley and wheeled it away. You also stole several newly purchased power tools that the owner had replaced after the first burglary.
12Located within the gun safe were six firearms and ammunition.
·.177 Hungarian air rifle
·.177 Norica air rifle
·22-250 CMS Remington rifle
·BA .22 Lithgow rimfire rifle,
·Under/over 12 gauge SKB shotgun
·12 gauge Hollis & Sons shotgun.
13Even using the trolley, the gun safe was too heavy to carry. You and McCourt hid it under shrubbery, close to a nearby train line. You rode your bicycles to meet an unknown person who was in his car. You got into the car and travelled to McCourt's house, where you emptied out the boot to make room to transport the gun safe.
14Finocchiaro took two of the bikes home and McCourt took the other. You and McCourt then took the car to collect the safe, while Finocchiaro remained at the address. You and McCourt transported the safe to a remote location in bushland. You used angle grinders to cut it open, removing the firearms and ammunition.
15On Wednesday, 30 October 2019, police had commenced their investigation into this matter. They observed a man attend at McCourt's address for a short time. When he left, he was intercepted, his vehicle searched and two of the stolen firearms were located. He indicated to police that he had just obtained the firearms from McCourt.
16At approximately 2.30 pm, McCourt was arrested. He was cooperative with police, assisting them to locate the gun safe. He made admissions in his record of interview and provided details of his co-offenders. On 31 October 2019 a search warrant was executed at his address where a large number of the stolen items were located and seized.
17On 31 October 2019 you were arrested. You were also cooperative and assisted the police. You offered to take investigators to one of the stolen firearms which you had hidden in a piece of pipe and buried in the scrub in Red Cliffs. It was retrieved by the police. You were then taken to the Mildura police station and a record of interview was conducted.
18You were affected by methylamphetamine both at the time of the offending and the interview. Although your answers were often addled, you made lengthy admissions to your offending, including that you committed the other burglaries with McCourt. All the stolen firearms were recovered and returned to their owner.
19The prosecution allege that you and McCourt played a similar role in the offending and that Finocchiaro's role was a lesser one, both in the number of offences that he committed and in his role in the theft of firearms. This was not disputed by your counsel.
20A victim impact statement has not been provided from any of the victims and there is no information about the residual effect of your conduct. For an owner to discover that someone has been inside his property and then to have items stolen, was, no doubt at least extremely annoying and frustrating.
21You concede that the overall offending here is serious, although it was not sophisticated. It occurred persistently over a six-week period. The offences were committed at night in the company of your co-accused. The value of the stolen items was not insubstantial. Fortunately, most of the property has been recovered.
22You offended on successive dates at the address in Kidman Court, gaining entry to the garage a second time using the remote control that you had taken on the first night. You returned to that address in order to steal the firearms that were stored in the gun safe. In my view, this incident is more serious than the other offending, as it involved pre-planning and the theft of firearms. Viewed globally, your counsel's concession that this was serious offending was sensibly made.
23You were charged on 31 October 2019 and remanded in custody. Your matter resolved at an early stage and you entered your plea of guilty on 14 April 2020. That 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. Your counsel submitted that your cooperation with police and your early guilty plea confirm that you have taken responsibility for your actions.
24I have received brief character references from two members of your family. You have expressed remorse for your offending to both. I accept that remorse is consistent with your cooperation and early plea. I am prepared to moderate your sentence to reflect that.
25You are unable to provide a rational explanation for your conduct. You were in a relationship at the time and living with your girlfriend in Red Cliffs. She usually worked two nights per week at a local club. You would go out with your friends on those nights and you say that you committed these offences “for the thrill of it”. You had only known McCourt for about one month, while Finocchiaro had been a friend of yours since you were at school. Your girlfriend was unaware of your drug use and the relationship ended when she learnt of it and of your offending.
26A total of three charges relating to a burglary on 20 August 2019, committed at a commercial property, have not resolved. These matters have been adjourned for a contested hearing at the Magistrates' Court in Mildura on a date to be fixed. I do not take this matter into account when determining the appropriate sentence here. You have no other matters outstanding.
27Your co-accused's matters are currently listed in the Magistrates' Court at Mildura for a committal mention later this year.
28You spent 34 days in custody, engaging in vocational and educational programs prior to being released on bail on 3 December 2019. You have complied with a number of strict conditions of bail, including a residential condition, a curfew, reporting to police three days per week and a condition requiring abstinence from drug use. You were also required to attend upon your general practitioner and to engage in treatment as recommended by him. In a letter to the court dated 6 December 2019, Dr Michael Monzon confirms that you have mental health issues relating to depression and to substance abuse. Counselling for mental health issues and referral from drug and alcohol services was arranged.
29While these conditions may have amounted to an imposition on your liberty, they appear to have also assisted you in your rehabilitation over the past six months.
30In a letter to the court dated 21 May 2020, Ms Jacqueline Ellem from SalvoCare confirms that you commenced drug and alcohol counselling on 9 April 2020 and completed six sessions. You have engaged enthusiastically with the program, gaining insight into the type of social environment and emotional issues that could trigger a relapse into drug use. You have made changes to your lifestyle, using strategies learnt in counselling to maintain abstinence from illicit substances. You acknowledge that your quality of life improves significantly when you do not use methylamphetamine.
31You have relevant prior convictions that have been dealt with at the Mildura Magistrates' Court. On 18 October 2016, you were convicted and sentenced to a 15-month community correction order for offences including four charges of burglary and seven charges of theft. That order expired in January 2018. On 22 March 2017, you pleaded guilty to a further offence of burglary and one charge of failing to answer bail, where you were convicted and placed on a 12-month community correction order, expiring in March 2018.
32Both orders included conditions to be supervised by the Office of Corrections with assessment and treatment for drug abuse or dependency and mental health assessment and treatment. These conditions were imposed to assist your rehabilitation and you completed the orders.
33On 1 May 2019, you were found guilty of offences including being in possession of a category A firearm, an air rifle. I am told that the gun was left by a friend in a boat that he had stored at your house. You had brought it inside and it was located by police. You were convicted and fined for that offence at the Mildura Magistrates' Court.
34You were born on 25 March 1991 and are now 29 years of age. You live at home with your mother, father, younger brother and your young daughter. Your mother, Mrs Julie Strange, gave evidence. She confirmed that you are part of a loving family. You have always lived in the Sunraysia region and you are the only family member who has engaged in criminal activity.
35Your grandmother died when you were seven years of age. You had a very close relationship and her loss was felt heavily by you.
36During your childhood you had difficulties at school when you and other students were assaulted and abused by a teacher. When you disclosed this to your parents, they spoke to the teacher and to staff. There were no further incidents and you remained at the school.
37You were poorly behaved in secondary school and you left in Year 10. You commenced an apprenticeship as a motor mechanic, working initially at Hutchinson Motors before completing your apprenticeship at Mildura Holden. You also attended the Sunraysia TAFE.
38In 2016 you suffered a serious accident where you were pushed through a window. I am told that your arm was severely injured. You have undergone two operations at the Alfred Hospital, attempting to repair the damage caused. These have not been entirely successful and you now have a residual disability of an approximate 45 per cent loss of the use of that arm. You have trouble moving your fingers and they do not have much strength in them. The last time you sought specialist advice was in 2018, where you were told that your condition is unlikely to improve. You still have pain in your arm and were recently prescribed Panadeine Forte for that.
39At the time of suffering the injury you became depressed and have sought treatment for depression.
40You received a modest insurance payout for the injury. You have saved some of the money in a bank account for your daughter, bought a car and used the remainder to supplement your living expenses.
41You started using drugs at around the age of 23 years. You have undergone periods of abstinence, although you were using ice at the time of this offending. Your mother confirmed that you have previously received drug and alcohol treatment as part of your community correction orders. She stated that when you were released on bail for these offences, you acknowledged that you needed to address your drug addiction. You have lived with her since your release on bail and she has not observed you under the influence of drugs or alcohol at any time. You are engaging well in your treatment for drug abuse.
42Your daughter was born on 5 December 2016. She had a birth defect that required major surgery at a hospital in Adelaide soon after her birth, in order to be repaired. You separated from her mother approximately two years ago and maintain a cordial relationship. There are no court orders in place regarding the care of your daughter. She lives with you and your parents and has contact with her mother. You are in receipt of a single parenting benefit.
43You have recently had occasional employment picking grapes during the harvest period. Your aim is to resume work as a motor mechanic when your daughter starts school.
44At the time of your offending, your daughter would stay with your parents. She is now three years old and attends kindergarten three times per week. Your mother said that you are the major carer for your daughter. You look after her as much as you can, with the help of your mother. You have been of greater assistance to your parents and your behaviour has matured since you engaged with SalvoCare. Your family clearly support your goal to establish a better life and will continue to do so in the future.
45I accept that your drug use provides a context and an explanation for your involvement in this offending. Your prospects for successful rehabilitation have improved since you have been on bail over the last six months. Clearly, your capacity to remain drug-free in the future is a critical factor in your success.
46Your counsel submitted that you were ignorant of the serious nature of the charges. I do not accept that submission. Over the last decade, you have appeared in the Mildura Magistrates' Court on nine occasions for a variety of offences, including matters of dishonesty and damaging property. You have received a range of penalties, many with conviction. My view is that you disregarded the serious nature of your conduct and its likely ramifications. It is regrettable that you would jeopardise your capacity to care for your daughter.
47Your counsel's submission is that a combined sentence, being a term of imprisonment of up to 12 months, and a community correction order would be the appropriate disposition in this case. You have spent 34 days in custody in pre-sentence detention. Considering the restrictions outlined in s.44 of the Sentencing Act, it is possible to have regard to time spent on remand without deducting or declaring it as time served under the sentence. The defence submit that a combined sentence would meet all relevant sentencing considerations. The prosecution do not agree with that submission, saying that a term of imprisonment is appropriate.
48After careful consideration, I am not persuaded that it is appropriate to impose a further community correction order in combination with a term of imprisonment. You have a relevant criminal history and you have already completed two community correction orders. They did not deter you from further drug use, nor were they sufficient to prevent your reoffending.
49The number of charges you face and the fact that you returned to one property to steal firearms, demonstrates an escalation in the seriousness of your offending. In the context of your criminal history, my view is that the only appropriate disposition is a term of imprisonment.
50You have not come to the attention of police since your release on bail and have engaged well with treatment, being abstinent from drugs and alcohol and improving your prospects for the future. I intend to impose a period on parole to allow your release from custody to be monitored. Supervision of your treatment will benefit both you and the community.
51I take into account that measures taken by Corrections to deal with the COVID-19 pandemic may add to your hardship as a prisoner, particularly as this is the first time you have been sentenced to imprisonment. I do not provide any sentencing benefit on the chance that you may be placed in lockdown in the course of your sentence. As I understand it, should this occur, you may receive sentence reductions as a result of the administrative decision of the prison authorities.
52It is clear, however, that the current time will be more stressful for you, than it would be if you were in the community. This is not only due to your personal position of confinement but also the hardship you may feel being absent from your family at this difficult time. Further, the emotional impact of being unable to have any personal visits for the foreseeable future will increase the burden of imprisonment.
53The principles of general deterrence, denunciation and protection of the community are relevant sentencing considerations. So too, is the principle of specific deterrence, in light of the number of offences in the context of your history. The steps you have taken over the last six months are encouraging and your prospects for rehabilitation are reasonably good.
54I take into account the maximum penalty for these offences and current sentencing practices. The principle of totality is relevant and I have taken care not to doubly punish you for these offences. I have endeavoured to tailor your sentence to ensure that it is proportionate to your overall criminal conduct.
55Balancing these factors as best I can, I sentence you as follows:
56Charges 1 to 17, on each charge you are convicted and sentenced to nine months' imprisonment.
57Charge 18, you are convicted and sentenced to one year imprisonment.
58Charge 19, you are convicted and sentenced to one year and six months' imprisonment.
59I direct that the sentence of one year and six months be the base sentence.
60I direct that three months from Charge 18 and one month from the other charges of burglary, being Charges 1, 3, 5, 7, 9, 10, 12, 14 and 16, to be served cumulatively upon each other and upon the base sentence.
61The balance of the sentences will be concurrent.
62The total effective sentence is of two years and six months' imprisonment.
63I fix a non-parole period of one year and six months. I enter in the records of the court that you have served 34 days by way of pre-sentence detention. The declaration that I make under s.6AAA is a sentence of three years and four months with a non-parole period of two years and two months.
64Would you like me to confirm the sentence? Charge 19 is the base of one year and six months and then I have added three months from Charge 18 and one month from each of the other charges of burglary; there are nine of those. A total effective sentence of two years, six months.
65Are there any further orders sought, Ms Burnett?
66MS BURNETT: No, Your Honour. Thank you.
67HER HONOUR: All right. Mr Davis, is there anything further?
68MR DAVIS: No, Your Honour.
69HER HONOUR: I'll leave the Bench. I'll excuse the prosecution so that Mr Davis has the opportunity to have a word to his client before he's removed. Thank you, I'll adjourn the court.
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