Director of Public Prosecutions v Waite

[2018] VCC 1609

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

AT BENDIGO
CRIMINAL JURISDICTION

CR 18-01597

DIRECTOR OF PUBLIC PROSECUTIONS

v

ZAC WAITE

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JUDGE:	HER HONOUR JUDGE HANNAN
WHERE HELD:	Bendigo
DATE OF HEARING:	2 October 2018
DATE OF SENTENCE:	2 October 2018
CASE MAY BE CITED AS:	DPP v Waite
MEDIUM NEUTRAL CITATION:	[2018] VCC 1609

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. Hassan	Office of Public Prosecutions
For the Accused	Ms E. Millar	Victoria Legal Aid

HER HONOUR:

1Zac William Joe Waite, you have pleaded guilty to three charges of burglary.  The maximum penalty for each of offence is ten years' imprisonment.

2You have further pleaded guilty to four charges of theft.  The maximum penalty for each offence is ten years' imprisonment.

3You have further pleaded guilty to one charge of criminal damage.  The maximum penalty for that offence is also ten years' imprisonment.

4Further you have pleaded guilty to one charge of theft of a firearm.  The maximum penalty for that offence is 15 years' imprisonment and finally on the indicted charges, you have pleaded guilty to one charge of being a prohibited person in possession of a firearm.  The maximum penalty for that offence is ten years' imprisonment.

5In addition to the indicted charges, you have consented to the uplifting of a number of summary charges and entered pleas of guilty through your counsel.  You pleaded guilty to summary Charge 10, going equipped to steal.  The maximum penalty for that offence is two years' imprisonment, Summary Charge 11, possession of a prohibited weapon.  The maximum penalty for that offence is two years' imprisonment and the Summary Charge 12, possessing a controlled weapon without excuse.  The maximum penalty for that offence is one year's imprisonment.

6The facts which found your offending are set out in the prosecution opening dated 14 September 2018.  You were at all relevant times aged 22, having been born on 4 January 1996.

7In the early hours of Monday, 2 April 2018, you attended at an address of 94 Kronk Street, Maiden Gully.  You were in a possession of a large Sportsco bag containing torches, pliers, a glove and a flick-knife.  Your possession of these items found Summary Charge 10, going equipped to steal and Summary Charge 11, possession of a prohibited weapon without exemption.

8You gained entry to a rear shed at the premises by peeling back the tin of one of the shed doors allowing you to open it.  Once inside, you stole a Husqvarna chainsaw before leaving the premises.  This conduct founds Charge 1, burglary, and Charge 2, theft.

9A short time later, you attended premises at 106 Kronk Street, Maiden Gully, where you gained access unlocked Ford Utility which was parked in a carport near the house.  You stole a number of items including a radio, a perfume, a pen, a DVD camera, a magnifying glass, torches, binoculars, keys, sunglasses, a multi tool, all property belong to the victim.  Your theft of these items founds Charge 3, theft.

10You then gained access to another vehicle parked at the rear of the property.  From that vehicle, you stole tobacco, Strepsils Tin, matches.  This conduct founds Charge 4, theft.

11You then gained access to a shed which had been closed with a chain wrapped around an unlocked padlock.  You rummaged through an unlocked cupboard looking for items to steal.  This conduct founds Charge 5, burglary.

12One of the residents of those premises awoke as a result of the chain rattling and looked outside the window to see an LED flashlight inside the shed.

13He ran to the shed where he observed you with a dark bag that looked quite full.  He told you to get off the property.  You ran down the driveway.  The victim followed for about 50 metres before stopping and calling police giving a description of you.

14After leaving these premises, you headed west along Kronk Street and approached premises at 245 Marong Road, Maiden Gully, which is located on the corner of Kronk Street.  You put the bag in the grass along the boundary of the address before climbing the fence to gain access to the property.

15You then entered a shed which was secured with a padlock but the key was still in it.  There was a caravan inside the shed and you opened several storage compartments rummaging through.  You stole a knife from a fishing bag before exiting the shed.  This conduct founds Charge 6, burglary, and seven, theft.

16You then went to another part of the shed which was divided by a wall and gained access to another unlocked door.  You used bolt cutters you located within the shed to cut locks from a gun safe affixed to an internal wall.  You removed a single barrel 12 gauge shotgun and a bag belonging to the victim.  This conduct founds Charge 8, criminal damage and Charge 9, theft of a firearm.

17By this time, police were in the vicinity conducting a patrol in response to the call they had received.  They observed your sports bag on the grass, opened it and saw it contained various items as reportedly stolen from Kronk Street.  They observed you during the course of their patrol, they identified themselves as police and told you not to move.

18You exited the shed carrying the shotgun in your hand pointed upwards.  Police drew their firearms and told you not to move and drop the gun.  You ran around the back of the shed.  Police continued to tell you to drop the gun.  You walked towards them saying, "I don't have a gun, I only have a knife".

19You were instructed to drop the knife which you threw onto the ground.  Your possession of the knife founds Summary Charge 12, possession of a controlled weapon without excuse.

20The firearm was located about 2 metres from you in bushes where you had been hiding.  At the time of your offending, you were a prohibited person under the Firearms Act as you were subject to a community correction order with a supervision condition.  This founds Charge 10, prohibited person possessing a firearm.

21You were arrested and taken back to the Bendigo police station where you were interviewed.  You made a number of admissions during the course of the interview.

22You entered your plea of guilty on the current basis at a committal mention on 8 August this year.  You have admitted the contents of the criminal record which discloses numerous appearances before the criminal courts dating back to January 2016.  You have been convicted of offences of dishonesty together with driving offences.  Numerous rehabilitative conditions have been imposed which have been breached by you.

23The last two appearances were on 19 April 2017 where in relation to charges of burglary and theft, you were convicted and sentenced to be imprisoned for 61 days, then placed on a community correction order with rehabilitative conditions.

24On 4 August 2017, you were convicted of burglary and two charges of theft in relation to a motor vehicle.  You were again placed in a community correction order.  Breach proceedings are now on foot and I have seen the breach report in which Corrections indicated further CCO on those matters.

25What is clear however is that you have breached every CCO you have been placed on this time by both reoffending and breach of conditions.  They have, in my view, simply proved insufficient to curve your offending and protect the community.

26While the offending which brings you before this court is not at the higher end of the range of offences of this type, the reality is that your offending has continued in the face of court orders and dispositions which were clearly aimed at your rehabilitation.

27Any charge of illegal possession of a firearm is a matter of concern in our community and general deterrence is properly given significant weight in offending of this type.  The message must be clear and consistent that in the usual circumstances condign punishment will flow, balanced of course with other relevant sentencing considerations.

28In your case, however, it is not suggested that your possession of a firearm was associated with any ongoing criminal activity.  It appears that it was stolen along with the other items to which I have already referred in all likelihood for the purposes of obtaining money.

29You are now aged 22.  You were 22 at the day of this offending.  You were raised in Kyabram by your mother and stepfather.  You do not know the identity of your biological father.  You have five half siblings and five step siblings.

30You report a difficult relationship with your parents growing up and further that you were sexually abused by your stepbrother between the ages of five and nine as well as others, the details of which you have not yet disclosed.  Your relationship with your parents in recent times has begun to be repaired and I note that both they and two of your siblings attended court upon the plea.

31You attended a local college until you were expelled in Year 10.  You completed further education through VCAL completing the equivalent of Year 12.  You have skills that will be of benefit in obtaining employment.  You, thus far, had only limited unskilled employment.  You report at least at one stage wanting to be a plasterer.

32Returning to your background, you were told to leave home at 15 after an argument with your stepfather.  You report initially living on the streets.  It was at this time that your drug abuse commenced starting with cannabis and progressing to ice and ecstasy from age 17.  You report using half a gram of ice a day prior to your remand.

33You have a close relationship with your grandmother and you were residing with her prior to the offending.  I am told she is happy to have you return there upon your release.  It is not a situation without difficulty, however, and you have spiralled into drug abuse whilst residing with your grandmother despite her best efforts.

34In the period immediately prior to your arrest, you were living with your partner.  She was pregnant but unfortunately miscarried.  That relationship has now ended.

35Since being remanded, you have completed a range of courses relevant to drugs, personal improvement and employment skills.

36I received a report from Dr Cunningham dated 21 September this year.  Dr Cunningham noted that you were diagnosed with ADHD as a child and that you receive some treatment at Headspace.  Dr Cunningham opines that you were suffering from PTSD as a result of prior violence.  He says you suffer feelings of worthlessness and hopelessness together with hypervigilance, self-destructive behaviour and difficulty concentrating together with sleep disturbance. Whilst this is all material which is relevant in terms of your situation in custody and ongoing treatment and rehabilitative needs, it is not submitted that Verdins has application.

37Whilst in custody, you suffered a serious injury requiring removal of your spleen.  I accept this leaves you vulnerable to infection and other prisoners and it makes your time in custody more onerous.  You were indeed recently assaulted which is a matter of concern given the injury.  This resulted in you being transferred back to MRC on a regime which sees you largely in lockdown.

38I received a letter from you indicating your remorse as regards to your offending.  You confirm you were at the relevant time using drugs and seeking to deal with issues of depression over your employment and search of your natural father.  You indicate that you have secured a job within the prison system working in the kitchen, that you enjoy that and it seems it is your intention to seek a position of a similar nature upon your release.

39I received correspondence from your mother and two of your siblings.  They all very clearly remain supportive of you.

40You have now been remanded in relation to this matter for 54 days.  You have additionally served time on remand in relation to a shop stealing charge still listed in the Magistrates' Court.  The court is yet to be heard making it difficult to look to this period on a strict Renzella basis.

41However, globally I have had regard to this period insofar as it has allowed you to remain drug-free in custody.  I think it is relevant as regards your efforts in relation to rehabilitation and your prospects in that regard as well as the punitive and deterrent effect for a period of time in custody.

42I think your prospects of rehabilitation remain guarded.  The real test in relation to drug abuse issues will only be met upon your release from custody.  Unless you can maintain abstinence in the community, your rehabilitation will be significantly hampered.

43That being said, you are a youthful offender and the community must maintain a real interest in your rehabilitation because that is the community's best protection from repetition of this type of conduct in the future.

44The prosecution submit that while a term of imprisonment is the only disposition open, this could be combined with a CCO.  Your counsel concurs in this regard but if I am against her submits that what was described as a short-sharp sentence is within the range.

45Both counsel submit that an aggregate term of imprisonment is open given the offending is effectively a course of conduct over a period of hours.

46You are entitled to the full benefit of an early plea.  I have sentenced you on that basis.  You are a youthful offender and that must be given weight in the sentence I will impose this day.

47As well as matters personal to you, I must have regard to other relevant sentencing considerations.  General deterrence must be given weight, that is, I must seek to deter others who would engage in like conduct.  Given your history, specific deterrence must also be given weight.  The sentence must manifest the community's denunciation of your conduct and impose just punishment.  I have had regard to principles of totality in coming to a view as to the appropriate orders.

48On Charge 1, burglary, 2, theft, 3, theft, 4, theft, 5, burglary, 6, burglary, 7, theft, 8, criminal damage, 9, theft of a firearm and 10, prohibited person in possession of a firearm, you are convicted and sentenced to be imprisoned for an aggregate of twevle months.

49I direct that you serve three months before becoming eligible for parole.  I direct that 54 days be reckoned as served.

50I have set a much longer than usual parole period in order to promote your rehabilitation given your youth and the onerous nature of custody given your medical conditions.

51On the summary charges, you are convicted and fined an aggregate amount of $500.

52I direct to be noted in the records of the court that if it were not for you plea of guilty, I would have sentenced you to a total effective sentence of 18 months with a minimum of nine.

53I make the disposal order in the terms of the draft.  Counsel, is there anything further?

54MS HASSAN:  No, Your Honour.

55MS MILLAR:  No, Your Honour.

56HER HONOUR:  Thank you very much.  Yes, Mr Waite can be removed.  Thank you.  Adjourn the court.

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