Director of Public Prosecutions v Wagner
[2014] VCC 350
•10 April 2014
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-13-00984
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| Kurt Richard WAGNER |
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JUDGE: | CHIEF JUDGE ROZENES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 April 2014 | |
DATE OF SENTENCE: | 10 April 2014 | |
CASE MAY BE CITED AS: | DPP v WAGNER | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 350 | |
REASONS FOR SENTENCE
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Catchwords: CRIMINAL LAW – sentence – firearms charge – obtaining property by deception – handling stolen goods – possession of drug of dependence – relevant criminal history – serious offending – sentence of imprisonment appropriate in the circumstances
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms L Featonby | OPP |
| For the Accused | Mr R Edney | Pica Criminal Lawyers |
HIS HONOUR:
1 Kurt Richard Wagner, you have pleaded guilty to one charge of attempting to obtain property by deception, one charge of handling stolen goods, three charges of recklessly dealing with the proceeds of crime, one charge of prohibited person in possession of a firearm, and two charges of possessing a drug of dependence. You admitted your prior convictions, arising from 19 court appearances, the first being on 12 August 1994 and the last on 2 December 2010. Your prior offending consists of drug, weapons, violence, road traffic and dishonesty offences. You have been imprisoned many times. Significantly, you were convicted on 16 March 2010 on a charge of possessing a firearm whilst being a prohibited person for which you received a sentence of 18 months’ imprisonment and, on 27 June 2007, you were sentenced in this court to a term of imprisonment of 2 years 6 months, with a non-parole period of 20 months, for firearms and deception offences. Two years of that sentence was for possessing a firearm whilst being a prohibited person.
2 Charge 1 carries a maximum penalty of 6 years’ imprisonment; charge 2 carries a maximum penalty of 15 years; charges 3 to 5 carry a maximum penalty of 10 years’ imprisonment each; charge 6, 10 years’ imprisonment; and charges 7 and 8, 5 years each. The facts of the case were opened by Ms Featonby and are contained in the Prosecution Opening, Exhibit A in these proceedings. Ms Featonby also tendered a booklet of photographs, Exhibit B.
3 In brief summary, on 20 March 2012 a Holden station wagon belonging to Gareth Hawley was stolen from his residence in Carrum Downs. The vehicle contained a cheque book, which was also stolen. I note that you are not charged with theft of either the car or the cheque book. However, on 27 March 2012 you attended at the National Australia Bank in Glenhuntly Road, Elsternwick, and attempted to cash a cheque worth $500.00 using a cheque from Mr Hawley’s stolen cheque book. In order to facilitate your deception you produced a Victorian Proof of Age card in the name of Gregory Rodin. You had removed the owner’s photograph and replaced it with a photograph of yourself.
4 On the afternoon of 28 March 2012, police attended your factory in Seaford, where you were living and working. You refused them entry, locking yourself inside. Police eventually entered your premises and found you convulsing on the floor. You were transported to the Frankston Hospital for treatment.
5 Police conducted a search of your residence and found a large amount of stolen property and a .32 calibre semi-automatic handgun and loaded magazine clip. Pursuant to s 5(1A) of the Firearms Act you are deemed a prohibited person by virtue of the fact that you received a sentence of imprisonment not more than 5 years ago. Forensic testing confirmed the presence of your DNA on the gun, as well as the fact that the gun had recently been fired.
6 When later examining some of the items seized during the search, police discovered two small plastic bags containing, in total, 26.6 grams of methylamphetamine (ranging in purity from less than 0.25% to 100%), and two bags containing a total of 3.2 grams of cannabis.
7 On 29 March 2012 you were transferred from Frankston Hospital to the Frankston police station and lodged in the cells there. Whilst there, you were found to be in possession of a number of bags containing a total of 0.9 grams of 100% pure methylamphetamine. Although I was not provided with any detail about this by your counsel, I can safely assume that you had previously secreted the drugs in your rectum and passed them while you were in police custody. You have remained in custody since 29 March 2012 and have not made an application for bail.
8 Mr Edney appeared on your behalf. He submitted that drug use – in particular, amphetamine use – has created significant difficulties for you since the age of 15. This offending, he submitted, was the result of you needing to fund your drug habit and coupled with an association with other drug users. Mr Edney rightfully submitted that your extensive criminal history could only result in me forming a guarded view with respect to your prospects for rehabilitation.
9 Mr Edney tendered the following: a bundle of documents, including a plea outline, chronology, reports and certificates, Exhibit 1; a letter by your mother, Joy Butcher, Exhibit 2; and a letter penned by you, Exhibit 3. In addition, your mother gave viva voce evidence about your relationship with her and with your daughter, and your plans to reside with her when you are released from prison. She said that, given her age, she needed your assistance in caring for your daughter, who is now aged 7 years. She gave evidence that the child’s mother rarely engages with your daughter as she, too, suffers from drug addiction. Of some concern, Ms Butcher stated that while you were always respectful to her, you were “clever” at covering up your drug use. She was of the opinion that your desire to improve your relationship with your daughter will provide the impetus for you to remain drug- and offence-free upon your release from prison. I remain sceptical about this, given your criminal history. It would appear that despite a number of opportunities presented to you by the courts to address your drug problem under the supervision of Community Correctional Services and the Adult Parole Board you have continued to offend regularly for more than a 16 year period.
10 Your counsel submitted that I should take the following factors into account in mitigation:
(i) You have the strong support of your parents, especially your mother who gave evidence at your plea hearing;
(ii) That you share a good relationship with your young daughter who resides full time with your mother and with whom you have had telephone contact whilst in custody;
(iii) Upon your release from custody, you will be residing with your mother and your daughter for the first time since your early 20s, which is demonstrative of your good relationship;
(iv) You have completed drug rehabilitation courses at the Metropolitan Remand Centre and have made contact with PenDAP, a drug counselling service, to reduce the risk of relapse on your release; and
(v) That the present charges could have been heard and determined by the Magistrates’ Court but for the fact that three matters were listed for trial in this court and two were discontinued a week prior to the commencement of the trial, resulting in the resolution of this matter.
11 It was submitted by Mr Edney that, in all the circumstances, I should impose a sentence that is sufficient to achieve the range of sentencing objectives and no more. He submitted that time served on remand for the current offences was sufficient. He was hesitant to submit that a non-parole period ought be fixed and, instead, asked me to grant bail and defer sentence so that you could commence treatment with PenDAP. I am not willing to accede to this request.
12 I note that you have spent a little over 23 months on remand for these matters. I also note that a sentence of 6 months’ imprisonment was imposed by the Moorabbin Justice Centre in December 2013, of which you served 14 days before being granted appeal bail. Your conviction and sentence appeal is listed at this court on 16 April 2014.
13 The basic purposes for which a court may impose a sentence are punishment, deterrence (both specific and general), rehabilitation, denunciation, and protection of the community. In sentencing, I must have regard to a range of matters such as the seriousness of the offence, your culpability for it, your personal circumstances and those of the victim if any. I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that as far as possible offenders are rehabilitated and reintegrated into society.
14 You have pleaded guilty and, as such, your sentence is a less severe one than I would have imposed had you pleaded not guilty. I accept the submission of your counsel that I should regard your plea as reflecting your early indication of a willingness to plead guilty to the counts the prosecution ultimately accepted. Your plea saves time, expense and the need for witnesses to give evidence and is reflective of remorse.
15 The possession of a handgun, particularly one that is operational and found in close proximity to live ammunition, elevates your offending, I think, beyond the scope of the jurisdiction of the Magistrates’ Court. This fact, combined with your criminal history, leads me conclude that this is serious offending that warrants the imposition of a considerable term of imprisonment. Imposing a sentence that does not include non-parole period would result in you being released into the community without supervision and support and this is something that I am not prepared to do. You are, of course, aware of the consequences of breaching parole. If, as your mother says, your daughter is your motivation for not committing further offences, you will be able to successfully complete a period of parole and this would go some way to assuaging my concerns in relation to your prospects for rehabilitation.
16 It is clear that most of your offending is motivated by or connected to your drug use. The possession of guns in that environment is often productive of serious criminal conduct. The possession by you of a large number of credit cards and other documents of identification indicate an intention to commit acts of deception. You have a number of prior convictions involving guns and controlled weapons and dishonesty. Specific deterrence and protection of the community must loom large in the sentencing process.
17 Mr Wagner please stand up. You are convicted and sentenced to be imprisoned as follows, on charge 1, attempt to obtain a financial advantage by deception, 6 months’ imprisonment. On charge 2, handle stolen goods, 6 months; on charge 3, recklessly deal with the proceeds of crime (a car), 6 months; on charge 4, recklessly deal with the proceeds of crime (many identity documents), 12 months; on charge 5, recklessly deal with the proceeds of crime (electronic devices), 6 months; on charge 6, being a prohibited person possessing a handgun, 24 months; on charge 7, possession of a drug of dependence (amphetamines), 6 months; and on charge 8, possession of a drug of dependence (cannabis), 3 months.
18 The base sentence is charge 6, the handgun charge. I direct that 2 months on each of the sentences imposed on charges 1, 2, 3, 5, and 7, and 4 months of the sentence imposed on charge 4 be served cumulatively on each other and upon the sentence imposed on charge 6 making a total effective sentence of 38 months’ imprisonment. I fix the period of 30 months as the period you must serve before being eligible for parole.
19 I declare that 729 days of pre-sentence detention be reckoned as having been served under the sentence and I direct that a declaration to that effect be recorded in the records of the court.
20 I have made the disposal order and the forfeiture orders sought, by consent.
21 Section 6AAA of the Sentencing Act requires me to state the total effective sentence and the non parole period that I would have imposed had you pleaded not guilty and been convicted. Had you been convicted after a trial, I would have sentenced you to 4 years’ imprisonment with a non-parole period of 3 years.
22 Any submissions?
23 PRISONER: I won’t get parole, so I’ll serve the 38 months. It’s pointless setting a parole period. There is no supervision, my barrister said that.
24 HIS HONOUR: I heard what your counsel said and I still intend to set a non-parole period. Remove the prisoner please.
25 MS FEATONBY: Your Honour, there is a Notice of related summary offences. I ask that they be remitted back to the Magistrates’ Court so that they can be withdrawn.
26 HIS HONOUR: I remit those charges back to the Magistrates’ Court. Thank you.
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