Director of Public Prosecutions v Weegberg
[2020] VCC 1310
•21 August 2020
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 20-00695
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BEN WEEGBERG |
---
JUDGE: | HIS HONOUR JUDGE GUCCIARDO |
WHERE HELD: | Melbourne |
DATE OF HEARING: | |
DATE OF SENTENCE: | 21 August 2020 |
CASE MAY BE CITED AS: | DPP v Weegberg |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1310 |
REASONS FOR SENTENCE
---
Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms C. Duckett | |
For the Accused | Mr G. Casement |
HIS HONOUR:
1Benjamin Weegberg, you have pleaded guilty to a charge of trafficking a drug of dependence, three charges of burglary and three charges of theft. Theft of firearms and possession of a traffickable quantity of firearms. These last two charges relate to the same firearms. You also pleaded guilty to four related summary offences, that is dealing with property suspected of being proceeds of crime, possess, use or carry a prohibited weapon, the unauthorised possession, use or supply of Victorian police identification or equipment and committing an indictable offence whilst on bail.
2The summary of the evidence relied upon by the prosecution was contained in a document exhibited and agreed upon your plea. For purposes of this sentence, I shall recount the circumstances of your offending briefly. You were 30 years of age at the time of the offences. You were effectively of no fixed residential address although you did reside with two associates in Heyfield from time to time. On 16 July 2019, you were bailed by the Sale Magistrates' Court for a number of offences including a family violence intervention order contravention, assault, threat to kill, recklessly cause injury and bail offences.
3I note that later on 13 August 2019, you were made subject of a community corrections order for 12 months in relation to those charges. Chronologically on 5 August 2019 you sent several photographs to associates of yours in relation to police equipment, being a mini torch which was in your possession, that is summary Charge 12. On 11 August 2019, you and an unknown co-offender went to the Maffra Secondary College, entered an equipment shed and stole two Giant mountain bikes at about 12.40 am. An alarm was activated and police attended without apprehending you.
4At about 1.15 or thereafter you returned twice and again stole three mountain bikes and that is burglary Charge 2 and theft Charge 3 and Charge 16, the summary offence. About 10 minutes after the burglary and theft you messaged an associate telling that person that you had, 'hit the motherload' telling him you had stolen five bikes and that 'heaps of bike shit, heaps and more bikes if we want'. There would be at least another seven Giants you later told that associate. That night you photographed the stolen bikes at a residential address very close to the school and two days later, the court placed you on a community corrections order mentioned above.
5In December 2019, on the 3rd, just after midnight you messaged an associate that you were about to, 'go for a look up the road'. You were living in Heyfield at the time. You went through a paddock adjoining and entered a neighbouring home. You jimmied open a door to a room adjacent to the garage and gained entry into it by smashing a plater wall. You also gained entry to the main residence. Inside the main shed on the property, you located a padlocked locker which was secured to a wall and utilised as a gun safe. You forced it open and stole nine firearms, eight of them were bolt action rim fire .22 rifles and one was an air rifle.
6At the time you were a prohibited person under the Firearms Act 1996. From that property you also stole numerous chainsaws, sharpeners, an air compressor, sanders, battery-operated drills, a blower, a whipper snipper, a lawnmower and a television. Having photographed these items you sent them by Facebook Messenger to various associates boasting of the large hall of equipment stolen and that the place you had bungled was, 'a goldmine'.
7On 5 December 2019, you sent messages asking an associate if that person was interested in a .22 rifle and warning of raids being conducted by the police at the time. Between 4 and 13 December 2019, you sold three of the firearms to one of your associates, one Richmond and to another one Boland. Between 4 and 23 December, you gave another rifle to another associate, one Cluney. The three rifles in Richmond's possession were found by police when they searched his residence on 13 December. These events give rise to the charge of possession of a traffickable quantity of firearms, Charge 4, and the charge of theft of firearms, Charge 5 and burglary 6 and 7, theft.
8Later that December between the 20th and the 21st, you went to an earthmoving company's premises and you entered several sheds and shipping containers, stole a number of items from those. These items were a wheelbarrow, a socket set, two chainsaws, a brush cutter, an angle grinder, an impact gun, a screw gun, two generators. You loaded these items into an old ute which was parked near the sheds on the property. You stole it leaving the place, Charges 8 burglary and 9 of theft of a motor vehicle.
9On 21 December you sent Facebook messages to various associates in which you described the stolen items and you sent photos of the items and the stolen ute. By way of these messages, you organised sale of the vast majority of the stolen items to various of these people. Police found the ute on the 22nd abandoned in bushland some 10 minutes' drive from the scene of the thefts.
10The following day, the 23rd, you were arrested in Heyfield. When police searched the premises where you were staying, they found a knuckleduster subject of related Summary Offence 5, two Giant mountain bikes, a phone, five bar mats, a cash register drawer, key, a bottle of alcohol, two footballs, a pool cue, two generators, a chainsaw, a whipper snipper and a Hyundai station wagon. These were the objects in the charge of dealing in property suspected of being proceeds of crime, Charge 3.
11An interview was conducted and recorded at Sale police station on that day,
23 December. You have provided some answers to police about the equipment and items found but you denied the burglary where firearms were stolen and said you had heard about them and all you had done was put people in contact with each other in relation to them and facilitated the sales to Richmond and Boland. You also said you got drugs for other people as an intermediary because you were bored. You denied the burglary and theft of the firearms. You told police you used ice every day. You were then remanded.12Your telephone contained many messages related to drug transactions. Between June 2019 and December 2019, you trafficked some 27.5 grams of ice to various people and you offered for sale or received about $5,000 for drugs as well as exchanged items of property and other drugs. Apart from burglary and theft which each carry maximum penalties of 10 years' imprisonment, theft of firearm carries 15 years' imprisonment as does trafficking in a drug of dependence.
13These maximum penalties indicate the serious nature of these crimes as viewed by the legislature and no doubt by the community. Firearms are inherently dangerous. When they are taken and placed in circulation in a criminal milieu connected to drugs and general criminality in the hands of those who would likely use them for nefarious purposes, great danger and consternation is caused to the community and the community looks to the court, not just for protection but to denounce such behaviour and punish this conduct in no uncertain terms.
14Crimes in which, as here, firearms are stolen from safe premises, sold onto other criminals to get money for drugs or in exchange for drugs or even simply given over to ingratiate yourself with people who may desire to have them, creates potential for violence and frightening crimes. Enabling firearms to be at large in the community in the hands of criminals is very serious offending. The court must be firm in punishing offenders in order to deter you and others from embarking on such thefts and trafficking.
15Even if I take the most favourable view, that is that you just happened to burgle a property where you found firearms stored, you nevertheless decided to steal them. Even if you had not planned and scoped out these premises because they had firearms to sell, then to pre-organise buyers which I proceed to accept was the case, you nevertheless stole them and you possessed a traffickable quantity in fact four and a half times the traffickable quantity of firearms. The number is not insignificant and your moral culpability is high notwithstanding that you probably committed the crimes to support an ice habit.
16At the time of some of the offences, you were on a community corrections order imposed in August which aggravates that offending and of course you were on bail which was charged separately. Trafficking in drugs is also a very serious offence. You are charged with doing so over a six-month period in a drug which is insidious and lays waste to lives and families, damaging vocational health, financial and relationship matters for many people, especially young people. Such conduct carries a heavy penalty because it is a very serious offence which must be met with general deterrence and just punishment.
17You are 31 years of age and you come before the court with a prior criminal history. In 2018 you were fined without conviction for intentionally damaging property. You then faced the court as I have explained in August 2019 and placed on a community corrections order. Your ex-partner was the victim in relation to these matters. Even though those offences are serious, I note you had no drug or dishonesty offences up to that point. The lack of extensive priors indicate you may have reasonable prospects of rehabilitation, which must be primarily conditioned in your case, with your ability to abstain from drug taking in the future and criminal conduct of the type in which you engaged on these occasions.
18I take your plea of guilty into account. Your plea has an utilitarian value, that is it has avoided the expense and time for a criminal trial. Witnesses have been spared and this acceptance of responsibility indicates your willingness to assist justice. The plea came relatively early in May 2020 after discussions had been commenced in April 2020. I accept that the plea is accompanied by your remorse. You have expressed this to your parents and to the examining psychologist. I accept your plea demonstrates regret and empathy for your victims and hardship caused to them. Your plea will reduce your sentence. This value is particularly significant at a time in which conditions of imprisonment and the criminal justice system have been impacted severely by the current COVID-19 pandemic.
19I take your personal circumstances into account. You were raised in Maffra. Your father was a mechanic and your mother was a bus driver for the disabled. You had a relatively settled childhood. Your parents separated two or three years ago and your mother moved out of the family home with your younger sister. You also have an older brother. When you were 18 you bought a house in Maffra. You had a relationship over five years with a young woman who unfortunately passed away because of an illness. After this setback you were in a relationship which was troubled by drug use.
20The child of that relationship which was born six years ago now resides with your mother and has no effective relationship with her mother. Your relationship with this woman ended in 2018 and before being taken into the Department of Health and Human Services care, you did have care of your daughter. Your older brother has a drug problem but both your parents and your sister are supportive of you. You intend to live with your father in Maffra upon your release. You completed year 10 at school and upon leaving you worked for Allied Pickfords and then Anderson's Removals for some 12 years all up.
21You often travelled interstate. Tragically a woman committed suicide by throwing herself in front of your truck being driven by you some three years ago. You left work a year later, however, by this time drug use had escalated substantially which you had begun upon meeting your daughter's mother. Your drug use of ice was persistent and relatively high. In prison you have been prescribed medication. You have recounted your personal circumstances to
Dr Aaron Cunningham a psychologist who wrote a report for the court dated
30 July 2020. Your partner Chloe had a miscarriage, losing twins on that occasion and another stillbirth.22The consequences of the relationship, these events and the drug use meant you moved away from family and friends. Your associates became the criminals you now dealt with. Your sister and mother reported to
Dr Cunningham your remorse and empathy for those you have hurt and the poor consequences of your drug use. You engaged in the offences to gain money for further drug use. However, both of them remained supportive and voiced strong hopes that they have seen significant signs of rehabilitation.23You do not have a mental illness but a supportive family and a desire developed during your period in reclusion to return to work to abstain from drug use and to rehabilitate yourself. I accept this assessment and I take into account the family support which is important, possible stable accommodation in the future and work and abstinence providing for you the best opportunity to reduce your risk of reoffending.
24I accept you have demonstrated in the past your ability for productive work and dealing with the traumas of the past may provide you with good prospects of rehabilitation which should be encouraged. Your period on remand had been your first period in custody. It was said to have had a salutary effect upon you. You have undertaken rehabilitative programs involving abstinence and learning about the effects of ice. I also accept that the current pandemic renders time in custody more onerous due to limitations on visits and contact, lockdown periods, opportunities for work have been curtailed and programs have been suspended.
25These consequences are coupled with the anxiety not only as to your personal safety in such an environment but also about the health of your family and friends outside. Your parents had been previously able to visit on a daily basis. You speak with your daughter daily but an inability to see her in person is no doubt a burden and I take these factors into account. I have received helpful references from your father, your mother and your sister. They each speak of your background and circumstances, your desire to reclaim your life, to return to work and to take care of your daughter and of your remorse. I take these letters into account.
26The sentence which I will impose must give pre-eminence to general deterrence and denunciation for serious and dangerous crimes over a sustained period. I have kept in mind also your prospects of rehabilitation in recognition that reclaiming you to productive and lawful endeavours is in the long-term interest of the community itself and of yourself.
27On the summary offences, Charge 3, of dealing with property suspected of being proceeds of crime, you are convicted and sentenced to six months' imprisonment. On Charge 5 of possess use or carry a prohibited weapon, the knuckledusters, you are convicted and sentenced to one month imprisonment. On the unauthorised possession, use and supply of Victoria Police identification or equipment, you are convicted and sentenced to one month imprisonment. On Charge 16, on commit indictable offence whilst on bail, you are convicted and sentenced to one month imprisonment.
28On the indictment on Charge 1 of trafficking in a drug of dependence, you are convicted and sentenced to two years and three months' imprisonment. On Charges 2, 6 and 8 of burglary, you are convicted and sentenced to 12 months on each. On Charges 3, 7 and 9 of theft you are convicted and sentenced to 12 months on each. On Charge 4 possessing a traffickable quantity of firearms, you are convicted and sentenced to one year and three months. on Charge 5 of theft of firearms, you are convicted and sentenced to two years and three months.
29I order one year on Charge 1, being the charge of trafficking to be cumulative on Charge 5. I order two months on each of counts 2, 6 and 8 to be cumulative on Charge 5. Just pardon me for a moment. As to the charges which I have also mentioned but not declared a period of cumulation, they are to be concurrent sentences. That makes a total effective sentence of three years and nine months. I order a non-parole period of two years and three months and declare that you have served by way of pre-sentence detention 242 days, a number which I will declare as already having been served and I will have that noted for the records of the court.
30But for your plea I would have ‑ ‑ ‑
31MR CASEMENT: Your Honour, I think it's ‑ ‑ ‑
32HIS HONOUR: I'm sorry, yes.
33MR CASEMENT: Sorry, Your Honour, I think it's 243 including today, I think that's the right (indistinct) including today.
34HIS HONOUR: Two forty-three, including today.
35MR CASEMENT: That's it, I said, 242 including today but it's 243 I think including today.
36HIS HONOUR: So, it's 242 excluding today.
37MS DUCKETT: Your Honour, yes, and it's always excluding because the day doesn't actually arrive until 12 o'clock so that's (indistinct words) is always.
38HIS HONOUR: Yes, I think that's the practice.
39MS DUCKETT: So, you're correct, it's 242 to be declared on sentence and Corrections will of course account for today when they do their calculations.
40HIS HONOUR: Yes, that's the usual practice. So, it's 242 ‑ ‑ ‑
41MS DUCKETT: Yes, Your Honour.
42HIS HONOUR: ‑ ‑ ‑ excluding today. But for, I think I've already declared four and a half years with a non-parole period of three years and three months and I have signed forfeiture and disposal orders as ancillary orders. Are there any other ancillary orders, Ms Duckett?
43MS DUCKETT: (Indistinct words) orders, Your Honour.
44HIS HONOUR: Thank you.
45MR CASEMENT: Sorry, did Your Honour say on the top it was four and half years and then the non-parole period was two years and three months, is that right?
46HIS HONOUR: That's the 6AAA, four years, six months with a non-parole period, three years, three months.
47MR CASEMENT: Four, yes, sorry.
48HIS HONOUR: The sentence that I have imposed ‑ ‑ ‑
49MR CASEMENT: Yes.
50HIS HONOUR: The sentence that I have imposed is a total effective sentence of three years and nine months with a non-parole period of two years and three months.
51MR CASEMENT: Indeed, thank you.
52HIS HONOUR: Yes, thank you.
53MS DUCKETT: Court pleases.
54HIS HONOUR: Thank you, sine die.
55MR CASEMENT: All right, we'll be in touch to talk to you.
‑ ‑ ‑
0
0
1