Director of Public Prosecutions v Vautier

[2021] VCC 1238

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 20-01490

DIRECTOR OF PUBLIC PROSECUTIONS

v

DANIEL VAUTIER

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:	12 July 2021; 26 August 2021
DATE OF SENTENCE:	30 August 2021
CASE MAY BE CITED AS:	DPP v VAUTIER
MEDIUM NEUTRAL CITATION:	[2021] VCC 1238

REASONS FOR SENTENCE

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Moore	Office of Public Prosecutions
For the Accused	Ms K. Farrell	Nelson Brown Legal

HIS HONOUR: 

1Daniel Vautier, you have pleaded guilty to 10 charges that were set out in indictment C2013274.1.  You have also pleaded guilty to two summary offences, being driving whilst your licence was disqualified and dealing with property suspected of being the proceeds of crime.  I will outline each charge in detail but, as an overview, there were five charges of handling stolen goods, two charges of burglary, two charges of theft and one charge of possession of a drug of dependence.

2Your offences arise out of your role in an organised criminal group who planned and executed a series of commercial burglaries and related offences in October, November and December of 2019.  Your involvement in some of the offending was to quickly take possession of the stolen cigarettes and organise sales with others engaged in their own separate criminal activity.  In some of the offences you were involved in perpetrating the burglaries and thefts.  The group was Rhys Humm, Dimitri Tsatsaronis, Steven Zorkau and yourself.

3I have already sentenced the other three co-accused in this matter at an earlier point in time.  Indeed, Mr Zorkau has had time to apply for leave to appeal against the sentence I imposed in the Court of Appeal; however, his application was refused by a single judge in June this year.  I have revisited the sentences imposed on those other men, in particular to order to consider the principles of parity.  These reasons for sentence take up many of the matters set out in the earlier reasons for sentence because in my view it is appropriate to set out some matters in similar terms.  However, I stress that I have applied the approach of individualised sentencing in your case to ensure your sentence is just and appropriate to you and what you did.

4The first offence happened on 28 October 2019 and this related to a burglary and theft that occurred in the early hours of the morning of 28 October 2019 at an IGA store in the small town of Clunes.  After covering external CCTV cameras with paint, the masked offenders used a pickaxe to force open the doors of the IGA, stealing cigarettes valued at just over $10,000.  Police investigators had at some earlier point secured warrants to listen to telephone calls of your criminal organisation.

5Your involvement commenced within an hour or so of this burglary and theft at the Clunes IGA when you discussed the stolen cigarettes with a man called McKay.  You told McKay you had 230 packets and asked if you should drive into his backyard.  Charge 1 is the handling of stolen goods, namely these 230 packets of stolen cigarettes worth just over $10,000.

6The next episode was two weeks later and it was very similar, though the amounts involved were threefold greater.  In the early hours of 9 November 2019, unknown offenders rammed an external steel gate at an IGA supermarket in Grovedale, a suburb of Geelong.  The offenders then forced open the internal door and stole 1560 packets of cigarettes valued at nearly $28,000.  Your involvement commenced just over an hour after this burglary occurred when you contacted McKay regarding the sale of the 1560 packets of cigarettes.  After agreeing on a price, you told McKay to reverse up to your rear shed to collect the cigarettes.  Later that day it seems McKay came to your home and paid $30,000 for the 1500 packets of cigarettes.  This was Charge 2 on the indictment, handling stolen goods, being the 1560 packets of cigarettes.

7Charge 3 is also the handling of stolen goods, this time nine television sets and a stolen box trailer, these crimes occurring between 1 and 17 November 2019.  Your involvement was once again revealed through telephone conversations when you discussed the value and sale of these stolen items.   In my view, your involvement in this offence was at the margins.

8The next offence in time occurred on 5 December 2019.  This is Charge 4, handling stolen goods.  Again, following a burglary and theft, this time at the BP Roadhouse in Skipton, another small town in Victoria, you arranged for someone to buy the cigarettes.  What was involved was that two cigarette cabinets containing approximately $25,000 and some cash were stolen.  What was heard just after the Skipton burglary and theft were negotiations between you and a man in Melbourne regarding the sale of the cigarettes stolen from Skipton.  The call was made on Humm's phone and you were with Humm as you travelled up to Melbourne.  What is revealed is that the Melbourne connection paid just $3000, though it is not clear what, if any, you received of this amount of money.

9I pause at this time to make clear the offence of handling stolen goods is a serious one evidenced by the significant maximum term fixed by Parliament of 15 years.  This is a maximum term that is significantly longer than the maximum term of 10 years fixed for theft.  The point to be understood is that the handling of stolen goods and the criminal handlers who commit that offence, enable or encourage the dishonest and disruptive offences of burglary, that is, breaking into premises and stealing things which the handlers then pay money for.

10To continue with the next of your crimes, on 7 December 2019 you were a participant in a burglary and theft, this time with Tsatsaronis.  You and he had a phone conversation, making plans to attend a shipping container on a construction site in Geelong West.  Soon after your conversation with Tsatsaronis you met up and forced entry to the shipping container, stealing $31,390 worth of tools belonging to Keystone Constructions.  This makes up Charge 5, burglary, and Charge 6, theft.

11On 13 December 2019 another burglary took place, this time at the Royal Hotel in Meredith, again a small town in Victoria.  You and Tsatsaronis drove to the hotel in the early hours of the morning in a stolen car.  Your faces were covered when you forced entry and stole a cigarette machine containing approximately 90-140 packets of cigarettes valued between $5000 to $7000.  The burglary was Charge 7 and the theft was Charge 8.  Later on 13 December you were in a car park in Geelong with Tsatsaronis when police attended.  You were able to escape on foot but left incriminating items in the car you were driving. 

12Four days later you were arrested at your home.  There were other stolen items found, as well as drugs of dependence.  Charge 9, handling stolen goods, and Charge 10, possession of a drug of dependence, arise from what was found at your arrest.

13As to the gravity of your crimes, it is plain enough your crimes were brazen and sophisticated. There was planning, scoping, and organisation or communication between the co-accused in which you played your important role as a handler of the stolen goods or a participant in the burglaries and thefts.  As noted already, your role as a handler was an important one in the group, securing payments for the cigarettes stolen.

14As I have said in sentencing the other men, on any measure these were no minor crimes.  Very significant amounts of property were stolen and then handled as they were passed on to others for money.  The small businesses that were targeted and their owners suffered financially as a consequence.  I concluded with respect to the other men that I have already sentenced that
Mr Zorkau was more of a follower.  Mr Tsatsaronis was more involved but, it seems to me, certainly if not higher up, then perhaps a bit lower than you in the hierarchy.  In my view, the intercepted phone calls and the number of crimes you were involved in revealed your role was a prominent one in this criminal organisation, certainly with respect to moving cigarettes to others for money.

15It was put by your counsel that you played a lesser role than Tsatsaronis and certainly less than Humm.  The prosecution contended that there could be no precise mathematical measure of who played the more important role as each of you were important in the tasks that you undertook.  However, with the greater number of offences and the hands-on involvement in many of the crimes, it was said by the prosecution that Humm ought to be seen as the most serious offender of the quartet.  You were said by the prosecution to be at or just above the role of Tsatsaronis.  I will return to the issue of parity in due course.

16As I have briefly mentioned, your crimes had an adverse impact on the victims and their businesses. The manager of the Keystone Construction Company spoke in his victim impact statement of the significant financial impact of your crimes on that business, including greater insurance and costs of security.  These matters add to the company's costs and means that they are less competitive in tendering for orders.

17MS FARRELL:  Your Honour, I apologise to interrupt but it looks like Mr Moore's disappeared.

18HIS HONOUR:  I do see that.  He has disappeared visually but I didn't assume that he was not listening.  Have you been involved throughout, have you,
Mr Moore, or have you just lost - you're on mute.

19MR MOORE:  Yes, I've heard everything and seen everything.

20HIS HONOUR:  Thank you very much.  Thank you, Ms Farrell.

21As to your personal circumstances, Mr Vautier, I have had the benefit of comprehensive written and oral submissions from your counsel and reports from psychologists, drug rehabilitation practitioners, counsellors and a letter from your mother.  I have taken into account all that was put on your behalf.  In brief terms, for the purposes of these sentencing remarks it is to be noted that you are now 36 years old.  You were born in Geelong.  Your childhood was unstable and unhappy.  Your father was an alcoholic and physically abusive towards you and your mother.  When you were aged 10 or 11 your mother took you and left your father; however, she soon began another relationship which was at that point also marked by some family violence.

22I note that now you enjoy a much better relationship with your mother and stepfather and they are willing now, it seems for the first time in a long time, to offer significant practical support.  This is because, in the words that your mother wrote, she has seen for the first time in years a real change in you and a determination by you to deal with your problems with drugs and your mental health.

23To return to your history, you struggled at school, leaving at the end of year 10.  You found work in the demolition industry, the profession of your father.  You worked hard and by the age of 23 you decided to branch out on your own and start a demolition company with a friend.  While the business was for some time successful, you discovered your business partner was taking funds in unauthorised ways.  Your efforts to sort this out and remain loyal to him at the same time backfired and you were excluded from the company.  This was a bitter pill and you did not cope well.  Eventually the company was wound up and you were left with nothing.

24During the time you were working and then starting your own company, that is in your early 20s, you used drugs, cocaine, amphetamines and methylamphetamines.  You used them regularly, which then increased as a consequence of the failure of your business.  It was at this time in the years 2013, 2017 and on to 2019 that you were committing offences to support your drug addiction.  The prior criminal history is concerning.  There were burglary, theft, and handling offences that saw the imposition of a community corrections order in January 2013. 

25However, of greatest seriousness was the very large number of like offences heard by the Magistrates' Court in October 2013 which saw the imposition of a gaol term with a non-parole period fixed and another community corrections order.  You were also dealt with for the breach of the first community corrections order. 

26After your release you did not learn the obvious lesson and took again to like offending and drug use.  A sentence of eight months and another community corrections order was imposed in February of 2016.  In March 2017, again for further burglary and theft offences, you received a community corrections order which was breached by further offending which saw you sentenced to 210 days of imprisonment and yet another community corrections order was imposed in November 2017.  Finally, on 29 March 2019 you were sentenced to seven months and placed on another lengthy community corrections order.  Again, it was imposed for similar offending and the breach of other earlier community corrections orders. 

27Yours is a very concerning criminal history involving many, many burglary, theft and handling offences, along with weapons, drugs, and other categories of offending.  You have been given multiple chances to use the rehabilitative programs and services, with regular CCO orders placed upon you.  You have breached those orders routinely.  You were on a lengthy community corrections order when you committed these offences and were really not that long out of jail; that is, your release was in June 2019, some four months before this criminal spree commenced.

28However, you did make some efforts to engage in drug rehabilitation in those months before your arrest but you relapsed into drug use and did not take up the opportunities.  I also note that in late 2019 you witnessed the shooting death of a close friend.  You suffered post-traumatic stress disorder as a consequence of this dreadful experience.  Your mental health is far from robust and your capacity for sensible judgments is impaired.  So much was made clear in the report of the psychologist, Mr Ball.  Mr Ball was concerned that your post-traumatic stress disorder was serious and presently unmanaged and you would benefit from perhaps medication but also dedicated counselling.  The trauma that you witnessed will likely trouble you for some time and you will need help. 

29It was in the context of the onset of post-traumatic stress disorder in November 2019 that your drug use escalated and you took to crime to pay for the array of drugs you were seeking out.  I do understand your criminal behaviours have been due to your fierce addiction to drugs; however, it must be seen that you were then afforded many chances to be assisted in dealing with your problems that in the end you have not taken up.  You know you will offend if you resume drug taking.  You have a concerning propensity to engage in the sorts of crimes you committed with others in October to December 2019.  That, it seems to me, has been a pattern since 2013.

30Weight must be given to personal deterrence to you as well as to the protection of the community.  Your history means I consider your prospects of rehabilitation are guarded.  That said, there are some more positive signs since you have been on remand.  You have done all you could to engage in vocational and importantly therapeutic programs during your time on remand, as well as working in various jobs and industries in the prison.  I say that though, unfortunately, many programs and jobs have had to be curtailed due to the COVID-19 restrictions.

31I note that a good deal of your time on remand was during the very difficult circumstances of the imposition and continuation of the COVID-19 restrictions.  This has made jail much more onerous as visits and programs were non-existent or heavily affected.  I have added that fact into my consideration of what is the appropriate sentence.  Your plea of guilty is important and means that your sentence will be less than it otherwise would have been.  The plea came during the suspension of jury trials in Victoria and thus has particular utilitarian value.  The Court of Appeal has recently made clear that pleas of guilty in the time of the pandemic must see palpably and greater benefits to accused than in earlier, more settled times.

32As explained, your offer to plead to these offences was made earlier on but was only accepted after other co-accused had their matters resolved, thus I see your plea as early and I see it as evidence of remorse.  Those are further matters that I have factored into the equation.

33Your counsel submitted that I should defer your sentence and grant you bail to undertake a residential rehabilitation program at Odyssey House where you have secured a position.  Counsel pointed out that the strict requirements of Odyssey House came with the benefit of you undergoing a well-respected drug rehabilitation program while, as it were, being tested to see if your commitment to your rehabilitation was solid before you were sentenced.  The prosecution submitted that a head sentence with a non-parole period was the only option properly available. 

34I have given renewed consideration to the provision of the Sentencing Act 1991 (Vic) allowing for the deferral of a sentence and whether it should be used in your case. I have considered carefully s 83A of the Sentencing Act, and most particularly those items that are identified in s 83A(1A) and (a) to (e) within that section. Your ultimate rehabilitation from drug use will give greater comfort to the public as you will more likely no longer have the need to get money illegally.

35You have shown in the past that you can work within the industries that you are trained or others and have prospects for employment, taking up where you left off after your last release from prison where you did hold a job for a short period of time.  I consider that you have prospects of working diligently and lawfully into the future.  However, in my view, given the gravity and number of offences, the proper expression of punishment, denunciation and deterrence, together with a hope that I can somehow facilitate your rehabilitation, but these sentencing purposes can only be achieved by the imposition of imprisonment with a non-parole period fixed.  Your lengthy time in remand is not sufficient to meet all sentence purposes to date.

36I will fix a time that will allow for the potential that you can be released on parole, but whether and when you are granted parole is for others, not the court.  I will allow for an appropriate period of potential parole but I repeat what the appellate courts have said time and again, that is there are no fixed formulas.  You will need support on your release which you will have in the form of your mother and her partner.  You can, and I hope you do, remain committed to residential drug rehabilitation, perhaps at Odyssey or a similar like institution on your release.  Importantly, as I have stressed, is the ongoing psychological treatment and counselling you will need for your post-traumatic stress disorder.

37Given that your crimes were committed with other co-accused who are sentenced, as I said parity is a live issue.  Each accused was sentenced to a head sentence and a non-parole period.  Like you, both Tsatsaronis and Zorkau had extensive criminal histories and were on court orders at the time of the offending.  Humm also had prior convictions, but on close analysis less than you and the others.  Personal circumstances of Tsatsaronis included that he had an acquired brain injury which I considered a mitigatory matter.  With Zorkau, his role and the extent of criminality favoured him in comparison to you.

38It was put by the prosecution and your counsel that Humm, with his greater array of crimes and his role, makes his sentence appropriately the longest of you four offenders.  Humm had solid family support and a number of matters that indicated his rehabilitation had some prospects.  In the end, I consider your sentence must be a bit longer than Zorkau and to a small degree Tsatsaronis, but less than Humm.  Unlike Zorkau and Tsatsaronis, given the number and different types of offences, I will not impose an overall aggregate sentence but, as I did with Humm, I will impose individual sentences save for the offences of burglary and consequential theft, that is Charges 5, 6, 7 and 8 which will be aggregate sentences.

39In fixing the sentences I keep well in mind the principles of totality as well as that of parity.  By that I mean I have considered and reconsidered the individual sentences, the orders for cumulation, and then the appropriate comparison with other offenders.  These are not mathematical equations but in doing so I have adjusted to ensure that the sentences and the total sentences and the non-parole periods fits in a proportionate way the totality of your criminality, no more and no less.  Doing the best I can, I impose the following terms of imprisonment.

40Charge 1, handling stolen goods at Clunes, 14 months. 

41Charge 2, handling stolen goods, Grovedale IGA, 18 months.

42Charge 3, handling stolen goods being televisions, 10 months.

43Charge 4, handling stolen goods, Skipton, 16 months.

44Charge 5 and 6, the burglary and theft at Geelong West, an aggregate sentence of 22 months.

45Charge 7 and 8, the burglary and theft at Meredith, 24 months.

46Charge 9, handling stolen goods, three months.

47Charge 10, possession of a drug of dependence, one month.

48The summary offence, drive whilst disqualified, one month.  The summary offence of dealing with property suspected of being the proceeds of crime, two months. 

49The base sentence is the aggregate sentence on Charge 7 and 8 of 24 months.  I order that three months of Charge 1, eight months of Charge 2, one month of Charge 3, seven months of Charge 4, nine months of the aggregate sentences on Charge 5 and 6, are cumulative on each other and on the sentences on Charge 7 and 8.  All other sentences are concurrent.  The total effective sentence is four years and four months and I fix a non-parole period of two years and seven months.

50You have already spent 621 days in custody on remand.  This figure having been reckoned, I declare that the 621 days is part of the sentence I have just imposed.

51MR MOORE:  Excuse me, Your Honour, there's been a recalculation.  It should be one extra day so it's 622 days agreed.

52HIS HONOUR:  The figure having been reckoned is the terminology in the Act of 622 days.  I declare that 622 days is part of the sentence I have just imposed.  I will ensure this declaration of the court is entered into the court records and passed on to the prison authorities so that they are left in no doubt that you have already served 622 days of the sentence that I have just imposed.  Had you pleaded not guilty to the offences and been found guilty of them I would have imposed a sentence of six years with a minimum of four years.

53Your licence has been affected, as I understand it, by reason of the drive whilst disqualified charge.  Your licence is cancelled and you are disqualified from driving in Victoria for 12 months.

54Are there any other orders or requirements?

55MR MOORE:  That completes the matter, Your Honour.

56MS FARRELL:  No, Your Honour.

57HIS HONOUR:  It has to be done quickly in one sense but take your time now.  Is the arithmetic, it all does come down to mathematics, is that correct?

58MR MOORE:  Just give me a moment, Your Honour.

59MS FARRELL:  Yes, Your Honour, I've got four years four months as the total and 622 days as the PSD.

60HIS HONOUR:  Yes.  I fix a non-parole period of two years and seven months.

61MR MOORE:  Yes, I agree with that, Your Honour.

62HIS HONOUR:  Thank you.  I am very grateful for your assistance in this matter, Ms Farrell.  It was a very comprehensive plea put on Mr Vautier's behalf.

63MS FARRELL:  Thank you, Your Honour.

64HIS HONOUR:  Thank you also, Mr Moore, for your ongoing involvement in this matter that has turned out to be lengthy but necessarily so.

65MR MOORE:  Thank you, Your Honour.

66HIS HONOUR:  Ms Farrell, do you want some time to discuss things with your client?

67MS FARRELL:  Yes, Your Honour.

68HIS HONOUR:  I will leave, my staff will leave, others that are connected will leave, including his mother, and you can just have a quick chat to your client.  Thank you.

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