Director of Public Prosecutions v Warby

[2018] VCC 1173

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

AT SHEPPARTON
CRIMINAL JURISDICTION

CR 17-01360

DIRECTOR OF PUBLIC PROSECUTIONS

v

CAMERON SCOTT WARBY

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Shepparton
DATE OF HEARING:	31 July 2018
DATE OF SENTENCE:	31 July 2018
CASE MAY BE CITED AS:	DPP v Warby
MEDIUM NEUTRAL CITATION:	[2018] VCC 1173

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr R. Hammill	Office of Public Prosecutions
For the Accused	Mr G. Davis	Nicholas Rolfe

HIS HONOUR:

1Cameron Scott Warby, you have pleaded guilty to one charge of kidnapping and one charge of handling stolen goods.  Those crimes carry maximum penalties of 25 years and ten years respectively.  You have also pleaded guilty to the two uplifted charges from the Magistrates' Court of prohibited person in possession of a weapon.  Those crimes carry maximum penalties of two years respectively.

2You are now 23 years of age, and were 21 at the time of the offending, and would appear to have had a child at that point in time.  You have not been far out of, if not underneath, the provisions for a Youth Justice order.

3You have pleaded guilty to a settled indictment, and you must of course get the utilitarian benefit of that plea of guilty.  So far as remorse is concerned, I will be satisfied that you wish this had never happened, and I will give you the benefit of the doubt in relation to that.

4Insofar as prior convictions are concerned, as I see it there is only one really relevant incident, which took place some years ago, where you were on remand for 30 days, and the magistrate seemed to have taken that as enough to clear the slate that involved drug use and in some respects, nothing much has changed.

5Most importantly in your particular situation, you have given undertaking that you will give evidence against any of your co-accused if called upon by the Crown to give that evidence.  You have also undertaken to cooperate with the Crown and the prosecution of those trials, and I know that you are fully aware that should you fail to comply with that undertaking, the Crown may well appeal this matter to the Court of Appeal, and they would sentence in a very different way, I would suspect.

6You are aware of those matters, and I direct that the fact that you have given this undertaking be entered in the court register.

7A summary of the offending has been tendered, and I do not need to go into great detail.  There is a number of people involved in this.  You and your partner, Ms Bennett, were drawn into it.  A man called McAlister had been bailed.  You had known him for some period of time, he was bailed to your address.  In the preceding week, I am told, police had been looking for him, and he had not been found.

8In any event, in October of 2016 Mr McAlister, as I understand it, contacted you and you drove to collect him.  Your partner went with you.  You arrived at an address known as Mistletoe Street.  At that address, a man was basically being kept hostage, and assaulted over an extended period of time.  You did not know that man.

9There was a man - and this is for this plea only, this is not to be taken as a finding of fact in Mr Gray's matter if he ultimately pleads or is found guilty - Mr Gray, who was twice your age, would appear to have been pretty much responsible for quite a bit of all this.

10Anyway, McAlister was there as well.  It was put by your counsel that you were under duress.  I have got grave doubts that it reached that level, but I accept that you were probably afraid yourself.

11The victim of all this was terrified, though you are not charged with those matters, the assaults, or a robbery that took place.  What you are charged with is that at one stage, McAlister took the complainant to his car - that is, the complainant's car as I understand it.  He drove while you and the other unknown person sat in the back seat.  The complainant was in the front.  He was under the belief at least that there was a firearm in the vehicle, and you yourself said to police that you thought you had seen a .22 or something like that in the house.

12He was driven to his home, and then taken by you calling his father and effectively asking him to open the garage door that he was taken inside.  You went in with him and went into the garage.  He still believed the firearm was in McAlister's possession at this stage, and lied about where his injuries had come from upon direction from McAlister.

13The purpose of all this, I am told, was to endeavour to steal or retrieve, whatever it might be, a couple of shotguns.  In any event, when nothing seemed to be going on, you said "So it's not happening", walked out of the garage, and the complainant told his father to shut the garage door.  You got into the car and McAlister drove away.

14Police were subsequently called, and the matter has unveiled from there.  You made admissions to police, certainly in respect of parts of it all, and it is on that basis that you have to be sentenced.

15I am prepared to accept in this situation, giving you the benefit of the doubt, that your role in all this was unpremeditated, and that you just simply happened upon it.  You may have been operating under some fear, but I do not regard it as getting to the level of duress.  A clearly injured and terrified man was put in a car and taken for the purpose of obtaining shotguns.  The simple purpose of that kidnapping is bad enough in itself, and had you actually got the shotguns, I would have locked you up for that.  But in any event, that did not occur, you have to be sentenced for what did occur.

16Insofar as the handling stolen goods is concerned, that is a simple matter of a stolen motorbike, which you purchased, you say, for a reasonable amount of money from a tax return.  You had claimed that you did not know it was stolen, I doubt that that is the case, but in any event, that is a matter which could have easily been dealt with in the Magistrates' Court, and I doubt that you would have been incarcerated for that there.

17The prohibited person charges relate to two Tasers, which I accept are described as "domestic Tasers" as opposed to the industrial ones used by the police department, but nevertheless they still hurt, as your counsel may one day find out. 

18Your yourself are 23 going on 24.  You did all right at school, you are a good welder, you have worked hard.  You are still only very young.  You do have a child with your - whether you are still together at the moment I do not know, but you endeavour to look after her.  There is no reason why, if on your continuing after this, you could not work and do a community corrections order, then there is no reason why you cannot keep your own methamphetamine use under control.  It was a very helpful little report actually, tendered on your behalf from Catholic Services, which indicates that you - to use a vernacular, would appear to have been having a go over the last few years, and she notes that stress when you tend to get into difficulties.

19In all the circumstances, the prospects of your rehabilitation are really up to you.  The risk of your reoffending has to be moderate.  If you reoffend in a manner such as this, involving use of firearms or kidnapping or the like, you may well find yourself one day in a very different jurisdiction.  But there is nothing much I can do about that, and it really is a matter for you.

20Taking all those matters into account, it is my view that a community corrections order with conviction is within range.  It must be a very significant one though to show - or demonstrate the seriousness of particularly the kidnapping.  It seems to me a power trip that people just take and put someone in a very unfortunate situation, it is a very ugly part of human nature, but there you go.

21In any event, it will be a community corrections order if you agree, 300 work hours over three years, as I say with conviction.  In these circumstances I will just simply leave it at that, and if you sign that, that is it on all the charges.

22What I will do - those summary matters, what I can do is this.  I will make the CCO on the indictment matters, and the two summary matters I will fine him an aggregate $500.

23MR HAMMILL:  Yes Your Honour.

24HIS HONOUR:  He can work or he can take half the work hours, take his pick.

25MR HAMMILL:  And will Your Honour sign forfeiture orders as and when required when we get them, Your Honour?

26HIS HONOUR:  If by agreement - as long as Mr Davis agrees, but ‑ ‑ ‑

27MR HAMILL:  Indeed, provide them to Your Honour's staff.

28HIS HONOUR:  Hang onto those Tasers for a little bit, just in case.  I am happy to do that in chambers at any time, as long as they are agreed to.  And I do not want to get caught in some barney six months down the track over ‑ ‑ ‑

29MR HAMILL:  No, no, not at all.

30HIS HONOUR:  Yes, no - all right, well I am content to do that.  I am assuming s.464 will have already been taken?

31MR HAMMILL:  I am sorry?

32HIS HONOUR:  A s.464 sample (indistinct).

33MR HAMMILL:  Yes Your Honour, indeed.

34HIS HONOUR:  All right, so there are no other orders I have to make, other than getting him to sign this.

35MR HAMMILL:  Retention is automatic, Your Honour.

36HIS HONOUR:  Yes, that is what I figured.

37MR HAMMILL:  Yes.

38HIS HONOUR:  So we will just get the CCO signed and ‑ ‑ ‑

39(At this stage the court proceeded with another matter.)

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