Director of Public Prosecutions v Tantrum

[2023] VCC 1654

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 22-01092

DIRECTOR OF PUBLIC PROSECUTIONS

v

SHAUN JAMES TANTRUM

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JUDGE:	HIS HONOUR JUDGE CHETTLE
WHERE HELD:	Melbourne
DATE OF HEARING:	22 August 2023
DATE OF SENTENCE:	22 August 2023
CASE MAY BE CITED AS:	DPP v Tantrum
MEDIUM NEUTRAL CITATION:	[2023] VCC 1654

REASONS FOR SENTENCE

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Subject:CRIMINAL LAW SENTENCE

Catchwords:              Sentencing – aggravated carjacking, carjacking, prohibited person possess imitation firearm, handling stolen goods, possession of drug of dependence, theft (rolled up charge), impersonating a police officer, unlawful assault, possess prohibited weapon without exemption/approval, fail to stop on police direction, unlicensed driving (rolled up charge)  - plea of guilty

Legislation Cited: s6AAA of the Sentencing Act  1991

Cases Cited:-

Sentence:                  Imprisonment, Total effective sentence – 6 years imprisonment, non-parole period, 3 years, and 9 months. Disposal orders.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. Peek-Lasry	Ms M. Kiapekos, Office of Public Prosecutions
For the Accused	Mr B. Nibbs	Mr M. Magazis, Theo Magazis & Associates.

HIS HONOUR:

1Shaun James Tantrum, you have pleaded guilty to:  one charge of aggravated carjacking; one charge of carjacking; one charge of being a prohibited person possessing an imitation firearm; one charge of handling stolen goods; one charge of possession of a drug of dependence, a rolled-up charge; and one charge of theft, which is also a rolled-up charge relating to five thefts of petrol.

2In addition, you have pleaded guilty to five related summary offences; two separate charges of impersonating a police officer; one charge of possessing a prohibited weapon, a knife; one charge of failing to stop on police direction; and one rolled up charge of unlicensed driving to encompass eight occasions on which you drove a motor vehicle.

3The facts of your offending are set out in Exhibit A, the prosecution summary for plea.  I was informed by your counsel that I could treat that document as an agreed statement of fact.  I incorporate it into these reasons for sentence and I sentence you on the basis of the facts set out therein.  There is no need therefore to extensively deal with those facts.  You heard them read by the learned prosecutor this morning.  In summary, the first serious offence you committed was on 17 December 2021 when you and an unknown co-accused were in a Nissan X-TRAIL motor vehicle in the early hours of the morning in East Melbourne.  You were following a man driving an Audi A4 sedan.  You flashed your high beams, activated a red and blue flashing light in the car you were driving and had the Audi pull to the kerb.

4You identified yourself as police detective.  You said that there had been a hit and run involving the vehicle you pulled over, and you went to the driver's side door, got inside the Audi and sought to drive away in it.  When the owner,
Mr George, ran to you and attempting to remove the key and stop you driving away, you punched him in the head, then got out of the car and hit him in the face, causing him ultimately to have a fractured eye socket and a broken nose.  You told him you had a gun and asked him if he wanted to die.  You then drove away in the stolen vehicle.  That is the basis of the aggravated carjacking to which you pleaded guilty, Charge 1.

5Subsequently you went to a number of different service stations, five of them, stole petrol and drove away without paying.  Those occasions have been rolled into one charge, Charge 6, in relation to your thefts.  In total something in excess of $300 worth of petrol was stolen.  On each occasion you drove the vehicle you were in whilst unlicensed, and that is the basis of the summary unlicensed driving charge.

6On 26 December 2021 a man called Yusef was driving another Audi in
Forest Red Gum Road, Mickleham.  Again, you and the co-accused were in a black Audi that you had in fact earlier stolen.  You activated a red and blue flashing light again.  The other Audi pulled over and believing you were police.  You, or one of your co-accused, yelled from your car, 'There's a problem with your vehicle.  Get out of the vehicle'.  You identified yourself as a police officer, told him he was under arrest and told him to lie on the ground.  When he did so you gaffer-taped his hands behind him.  You then hopped into his vehicle and either you or the co-accused drove away in his vehicle.  That is the basis of Charge 2, carjacking.

7Charge 3, the imitation firearm, relates to an item that was located when police searched the vehicle which you had stolen and on one occasion you were captured on CCTV footage displaying or moving a weapon from the front of your pants to the back of your pants.

8Police tried to intercept you on 8 January.  They were watching you.  They had observed that you had parked the two stolen vehicles in the car park of a block of units in Mentone and you were staying in the hotel adjoining that block of units.  Police saw you drive away in one of the cars, the one you stole from
Mr George.  They went to intercept you but you drove off at speed.  Subsequently you were arrested and in a search they found a number of items, which I will not go through, including a black gel blaster handgun, which is the subject of Charge 3, being a prohibited person possessing an imitation firearm.  You were also found in possession of a butterfly knife, some flashing lights and some duct tape, which had been used to tie up your earlier victim.

9In the Audi vehicle a set of Victorian number registration plates, BSM-369, were located and that is the basis of Charge 4, handling stolen goods, to which you have pleaded guilty.  Your co-accused was 19 years at the time and he faces a charge related to one of the vehicles, the carjacking, not the aggravated carjacking. You were also found in possession of a quantity of methamphetamine and cocaine, and that is the basis of the possession of a drug of dependence charge to which you have pleaded guilty.

10The maximum penalties for the offences you have committed illustrate how seriously parliament takes these offences.  Aggravated carjacking has a maximum penalty of 25 years' imprisonment and the law requires that there is a mandatory non-parole period of three years to be imposed for an offence unless there are special reasons and there is no suggestion of those special reasons in this case.  Carjacking is also a serious offence with a maximum penalty of 15 years.

11Both your counsel and the prosecutor, I think, agreed with my assessment that the aggravated carjacking offence represents a mid-level of example of an offence of that nature, as does the carjacking offence.  The other offences
I believe are of less significance and you are less culpable in relation to them.

12You have admitted a criminal record.  You have a relatively lengthy criminal record commencing in 2012 and for a number of years you received non-custodial Corrections orders in relation to theft offences and drug offences.  
It seems clear that you have been plagued by drugs which led to your offending over the years.  In recent times you have been imprisoned for trafficking cocaine.  You were sentenced to four months' imprisonment for trafficking cocaine in 2019 and in the updated criminal record that I received subsequently you were sentenced to short terms of imprisonment in September 2021 and June 2021 for possession of drug offences.  It is clear that you were using drugs to excess in the period leading up to the offending for which I am to sentence you and in fact you had only just got out of gaol by a number of weeks, it seems to me, before you committed the offences for which I am to sentence you.

13Before I turn to your personal circumstances, there is a victim impact statement filed by your second victim, Mr Yusef.  He does not want it read aloud and there are parts of that victim impact statement which are not admissible on your plea.  He clearly has been traumatised by what occurred.  He said you had no right to steal his car and threaten him.  He has become hypervigilant.  He is avoiding crowds and he has nightmares and is depressed.  I take the relevant portions of the victim impact statement into account in sentencing you.

14Your personal history is set out in a number of documents.  Your counsel in Exhibit 1, his defence submissions, summarises your personal history, which is set out in detail in the psychological report of Ian Mackinnon, Exhibit 2.

15You were born and raised in Melbourne.  Your mother, Danielle Tantrum, is an allied health insurance broker.  Your father, Francis McCullough, was a difficult man.  He was involved in numerous assaults upon your mother, which you witnessed as a child, and ultimately was deported to Ireland after he finished his sentence of some 20-odd years for a murder he committed.

16You have two sisters, and I have references from both your mother and your sisters, who are supportive of you.  Your mother, in Exhibit 3, gives a detailed history of the issues you sustained as a child and the ways in which she sought to cope with the domestic violence she endured and the alcohol abuse that she in fact indulged in.

17You have been moving all over Australia.  When you were very young your mother moved you to Queensland in order to escape your father as far as I can see it.  You had a period of time where you lived in China and you came back.  At the age of 12 you commenced a relationship with your father.  You would visit him in prison regularly until he was released in 2021, where he was then immediately deported to Ireland.  You have visited him overseas when you travelled overseas some time.  You were educated to Year 11 level at TAFE.  You have worked in a number of jobs since. You did an apprenticeship as a chef for a year.  You have been a machine operator, a builder's labourer, and a reference from a company called Onley Constructions attests to your good work ethic and the availability of a job to you in the future.

18Your history of drugs has been, as I said, your problem.  You suffered enormous mental stress as a result of a combination of drug use and your post-traumatic stress that you suffer as a result of your childhood experiences.  You have been admitted to hospital on a number of occasions.  You have suffered with suicidal ideation and what looks to be drug induced mental issues.  The words your counsel used is you have been self-medicating your personal demons by using drugs and alcohol throughout your life.  You have attempted to deal with that but relapsed, and in the period of time leading up to this offending it seems that you were very much in the grips of a drug disorder and using drugs excessively.

19That led to you being incarcerated and now you find yourself for the first time the subject of a further substantial period of custody.  You have used alcohol since you were 12.  You have used cannabis, ice, cocaine and GHB but methylamphetamine became your drug of choice over recent years.

20I am told that you have been drug free in custody, although no drug screens were produced.  You have been made a billet, which makes it likely that you would not have any drug issues because you would not have got that job otherwise.  Despite the difficulties that COVID has caused, you have done a number of courses whilst you have been in custody and I have been provided with certificates of those courses, Exhibit 7; and the details of them and when you completed them, as set out in your counsel's submissions.  You plan to return to live with your mother when you are able to do so and both your mother and your sisters, as I say, remain supportive of you.

21Your counsel conceded that nothing other than a term of imprisonment could be imposed in this case.  The legislation requires it and the seriousness of your offending demands it.  There are a number of factors that I must take into account in sentencing you and I take into account in your favour your pleas of guilty.  By pleading guilty you have spared your victims the need to give evidence at a criminal trial and the community the cost and expense of such a trial.  The value of your pleas of guilty is increased because of the effect Covid-19 has had upon our justice system, and you are entitled to a greater reduction in sentence as a result.  I will return to the effect of that reduction in due course.

22I accept that your time in custody has been made more onerous because of Covid.  Things such as lockdown, difficulties in doing courses and quarantine periods have all plagued people's times in custody and unfortunately it is likely to continue in the future.

23I take into account the difficult childhood background that you had.  Your counsel properly, in my view, did not suggest that this amounted to the level of hardship that would attract a significant reduction in penalty, however, I do accept that you ended up where you were predominantly because of where you came from.  That your father was a dreadful influence on your life.  You were scarred with violence as a young man and you saw him as a role model, I think, that made prison almost inevitable for you.

24Your prospects of rehabilitation depend entirely upon you dealing with your drug problems.  If you take the time whilst you are in custody to remain drug free and get support on your release and remain drug free, your prospects of rehabilitation will be greatly enhanced.  At the moment I can only regard them as guarded.

25General deterrence, specific deterrence, denunciation of your conduct and just punishment are all significant sentencing factors.  Your offending is extraordinarily serious, it terrorises members of the public, it is a common, unfortunate offence and those who are minded to behave as you do need to know that they will go to prison for some time.  You need to know if you repeat the behaviour, you will go back to prison for some time.

26The sentences of the court are on all charges you are convicted:

(a)  on Charge 1, the charge of aggravated carjacking, you are sentenced to four years' imprisonment;

(b)  on Charge 2, carjacking, you are sentenced to three years' imprisonment;

(c)  on Charge 3, for being a prohibited person possessing an imitation firearm, you are sentenced to 12 months' imprisonment;

(d)  on Charge 4, handling stolen goods, you are sentenced to three months' imprisonment;

(e)  on Charge 5, the rolled-up charge of possession of drug of dependence, you are sentenced to three months' imprisonment;

(f)   and on Charge 6, the rolled-up charge of theft from five service stations, you are sentenced to six months' imprisonment.

27On the related summary offences both your counsel and the prosecution conceded that an aggregate sentence would be appropriate and I impose an aggregate term of imprisonment for the two charges of impersonating a policeman, the charge of possessing a prohibited weapon, failing to stop on police demand; and unlicensed driving, of six months' imprisonment.

28I order that one year and three months of the sentence imposed on Charge 2, three months of the sentence imposed on Charge 3, three months of the sentence imposed on Charge 6 and three months of the related summary offence sentence be served cumulatively upon the sentence imposed on Charge 1, which I declare to be the base sentence. 

29That is an effective term of imprisonment of six years and I order that you serve three years and nine months of that term before being eligible for parole.

30I declare 590 days not including today has already been served by way of pre-sentence detention. I indicate, pursuant to s6AAA of the Sentencing Act[1] that but for your pleas of guilty I would have imposed an effective term of imprisonment of eight years with a non-parole period of five years, and I make the disposal orders sought by the prosecution.  Are there any other orders required?

[1]Sentencing Act 1991

31MS PEEK-LASRY:  No, Your Honour.

32HIS HONOUR:  Anything else, Mr Nibbs?

33MR NIBBS:  No, Your Honour.

34HIS HONOUR:  All right, thank you.  I'll terminate the links.

35COUNSEL:  As Your Honour pleases.

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