Director of Public Prosecutions v Weir
[2020] VCC 2056
•17 December 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-01109
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RYAN WEIR |
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JUDGE: | HER HONOUR JUDGE TODD | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 December 2020 | |
DATE OF SENTENCE: | 17 December 2020 | |
CASE MAY BE CITED AS: | DPP v Weir | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 2056 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL
Catchwords: Plea of guilty - one charge of aggravated burglary – one charge theft – two related summary charges: dealing with property suspected of being the proceeds of crime and committing an indictable offence while on bail
Legislation Cited: Crimes Act 1958 ; Sentencing Act 1991
Cases Cited: Jackson [2020] VSCA 95
Sentence: Total effective sentence of 7 months imprisonment and Community Corrections Order of 9 months
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms M. Zammit | Office of Public Prosecutions |
| For the Accused | Ms L. Theis | Gallant Law |
HER HONOUR:
Introduction
Pleas of guilty and maximum penalties
1
Ryan Weir you have pleaded guilty to one charge of aggravated burglary put on the basis that you entered a premises with intent to steal and knew, or were reckless as to whether, a person was present. This charge carries a maximum penalty of 25 years imprisonment. You also pleaded guilty to
one charge of theft, an offence which carries a maximum penalty of 10 years' imprisonment, and one charge of trafficking in a drug of dependence which carries a maximum penalty of 15 years imprisonment. You have also pleaded guilty to two related summary offences: dealing with property suspected of being the proceeds of crime, which carries a maximum penalty of two years imprisonment, and committing an indictable offence while on bail which has a
maximum penalty of three months imprisonment or 30 penalty units.
Circumstances of the offending
2 The Prosecution Opening sets out the circumstances of your offending; it was tendered on the Plea and became Exhibit A. It is attached to and forms part of these reasons. I will summarise just some of the facts giving rise to your offending here.
3 On 9 April 2020 at about midday Mr Patzel was at home with his friend, Kevin. He heard a knock at his front door. He called out "Who is it?" and a male voice replied, "It's the Police, open up."
4 Mr Patzel had to dress himself before opening the door. Kevin hid in a bedroom. When Mr Patzel opened the door, he saw two men, one of whom had a name badge resembling a Police name tag. The other man was you. The man with the false Police badge was your co-accused, Mr Rehua Rowlands. Mr Patzel opened the security door and Mr Rowlands walked in, grabbed Mr Patzel and pushed him up against a wall in the hallway.
Mr Rowlands punched him then made him sit on the couch.
5 During this time you entered the unit. Mr Rowlands was asking Mr Patzel where the drugs were. You started searching. Mr Rowlands continued to assault Mr Patzel. He became more aggressive in doing so.
6 Mr Patzel said that someone else was in the home; you went into a bedroom and then returned to the loungeroom with Kevin. At some stage, Mr Patzel realised that neither of you were a Police officer.
7 You stayed inside for a period while Mr Rowlands took Kevin outside.
Mr Rowlands then re-entered and again assaulted Mr Patzel. You and
Mr Rowlands then searched the unit. You found a number of items there including:
· An Adidas bum bag containing approximately $950
· An HP laptop
· Apple Earbuds
· A Samsung tablet
· A Culture Kings bag full of assorted items
· A Prada handbag containing jewellery, including an antique swastika badge
8 These things were put in bags and the two of you gave the bags to a woman, who had, by this time, joined you and was standing at the front door of the unit. After giving a bag to this woman, you, did not go back inside.
9 Mr Rowlands continued searching inside Mr Patzel's unit, before the female said, "Come on, we've gotta go". Mr Rowlands then left too. Mr Patzel walked to a neighbouring unit and told his neighbour what had happened.
10 He spoke to Police a few days later on 11 April 2020. The next day he contacted the Informant and told him that his Commonwealth Bank account had been emptied out and a total of $1554.87 had been transferred to a person by the name of Zoe Nobels. It was later established that Zoe Nobels was the woman who had been at the front door during your offending. It is not put against you that you had anything to do with, or received any benefit from, the transfer of funds to Ms Nobels and I do not sentence you on that basis.
Summary Charge: Dealing with Property Suspected of Being Proceeds of Crime
11 At approximately 8.15 am on Wednesday 6 May 2020, Police executed a search warrant at your home. You were arrested. Police found the following items:
· A Pierre Cardin Bag
· $600 in $50 notes
· An Australian Catholic University student identification card in the name of Benjamin Patzel
· A notebook tablet with a keyboard attached
· Two zip lock bags containing a crystal substance and a small clear container containing a clear liquid located on the top of the bedside table
· A light blue polo shirt, a pair of grey Nike shorts, and a pair of black and white Nike runners (CCTV at the scene captured you wearing these things)
Charge 3: Trafficking a drug of dependence
12 The crystal substance was subsequently analysed and was found to be
5.2 grams of methylamphetamine.
Summary Charge: Committing an Indictable Offence on Bail
13 At the time of the commission of the above offences, you had pending appearances at Frankston Magistrates' Court and the Moorabbin Justice Centre respectively. You were on bail for both.
Arrest and interview
14 On 6 May 2020 you gave a frank and detailed interview to Police.
15 When asked what you were doing on 9 April 2020 you told them, amongst other things, "I was waiting for the rest of my drugs and I – I went to the early hours of the morning, I turned up to – well, completely unbeknownst to me what I was doing, I thought I was going to get my drugs, I got – heard a knock on the door, and knocked on the door, the person snoring, I left. I came back at god knows what time. I couldn't give you specifics. My head is very clouded from - - the shitload of methamphetamine."
16
You told Police that by the time you were inside the unit you were,
"In over [your] head", feeling "terrified" and "fearing for [your] safety in a situation [you had] no bearings over".
Prior Criminal History
17 You come before the court aged 33 years without prior convictions. I note the completeness that you were dealt with in the Southport Magistrates' Court in Queensland in 2019 for drug possession charges which for which no conviction was recorded and a fine imposed.
18 This is your first time in custody, and I accept that it has been a shocking time for you. You spent a week in the custody centre in the Melbourne Magistrates' Court, four days at the Melbourne Assessment Prison in isolation, then on to Ravenhall prison where you spent 14 days in quarantine isolation. This was taking place in the context of the public health crisis unfolding in Victoria at the time.
19 I take into account that your custody was your first time in custody and it was spent at a time when infection rates in Victoria were rising. The response to the public health crisis by the correctional institutions has required the imposition of more restricted conditions than are ordinarily imposed.
20 Moreover, I take into account that a plea of guilty in circumstances where the courts are facing a very considerable backlog of cases is particularly valuable and ought to be seen as such.
Procedural history
21
You were on two sets of bail at the time of your offending. Those matters arose on 4 December 2019 and 6 April 2020. Both pertained to charges of possession of drugs of dependence. It was a breach of those bail conditions that gave rise to the second of the two summary offences dealt with on this sentence. On 14 July 2020 a bail application was listed but then withdrawn. Plea negotiations in your case continued. A plea hearing in the County Court was listed on 12 October 2020 but adjourned to further negotiate the plea. After that negotiation your case was listed for plea hearing in the County Court.
A plea date was obtained for 17 March 2021.
22 Your case, in the meantime, had resolved to a suite of charges that, technically at least, could have been heard and determined in the Magistrates' Court. On 9 December 2020 in the County Court you listed an application for bail and an application to remit your case to the Magistrates' Court pursuant to s.168 of the Criminal Procedure Act. That course would have required litigation of a contested application for bail (which may have been exceptional circumstances or show compelling reason it was unclear), hearing and determination of the application for summary jurisdiction (a relatively complex question in the circumstances and again opposed) and if unsuccessful a plea hearing, followed by sentence.
23 When the court convened on 9 December 2020, Prosecution and Defence jointly proposed that the matter might be heard and determined in this court immediately as a plea. You had no doubt come to court on advice that an application for bail may succeed that day. Notwithstanding that the plea could not be completed that day you instructed your counsel to take that course. It was unquestionably the most efficient way of proceeding in the circumstances, but it would have caused you some short-term disappointment in not having your application for bail considered. I take that into account in your favour.
Nature and gravity of the offending; culpability and degree of responsibility
24
It was submitted by the Prosecutor and I accept that all aggravated burglaries that occur when the victim is awake at home are extremely serious. It was conceded by your counsel that this is a case where you knew that a person was present as opposed to being reckless about that fact. Your offending represents a significant transgression of the right of Mr Patzel to feel safe in his home. It was submitted, and I accept, that you formed the intent to steal in the instant at the door of the property having gone there for other reasons. You remained in the premises for some time while the victim was assaulted.
I do not sentence you on the basis that you knew or were in any way responsible for those assaults. The aggravated burglary was complete on your entry and you are to be sentenced in the context of that entry but not for any additional offending.[1] Fairly, the prosecutor has conceded that you were not aware of your co-accused's intent at the time of going to the property, and that you felt overwhelmed and somewhat, "In over your head" at the time and that you had no part in that assault. Your answers in the record of interview shed additional light on that subject.
[1] See Jackson [2020] VSCA 95.
25 In terms of the trafficking of a drug of dependence, the amount was 5.2 g of methylamphetamine. A trafficable quantity is 3 g. It was submitted, without contradiction that you were supporting your own heavy drug habit through low-level trafficking. This reduces the overall culpability of this offence. The theft charge deals with items taken from the house and as such will be dealt a measure of concurrency. The fact that you were on bail while committing these offences is aggravating.
26 You gave a lengthy record of interview. Your thinking and speech were somewhat disorganised; however, I accept that you were doing your best to give a true description of your state of mind at the time of your offending. There was no planning involved. You thought you were going to the property for a completely different purpose. You quickly became out of your depth. Taking that into account, I conclude that your offending is towards the lower end of the scale when considering your offending in the sentencing landscape.
Personal circumstances
27 You are now 33 years old. You were born in Frankston, Victoria; your mother Jennifer lives with her partner in Briagolong; your father left the family when you were less than a year old.
28 You did renew contact with your father at around 24 years of age when you were dealing with an addiction to painkillers that had been given to you after a work injury. Your father supported you through that rehabilitation, but you have since lost contact. You have had, in the main, good relationships with your mother and your sister Candice, who lives in Rosebud with her partner and children. They do not tolerate your use of drugs so your relationship with them has been ruptured in recent times.
29 You have recently been through a difficult separation from your partner, Melissa with whom you have a son; he is now five years old. The dissolution of the relationship was difficult. Initially there was an agreement regarding your contact with your son, however, the situation deteriorated and resulted in you effectively being unable to see him. This was extremely painful for you and set the background for your using methylamphetamine. Your use escalated.
30 You have a good employment history. You have experience as a cabinetmaker, computer technician, and a blind installer. In this last occupation you were injured and your addiction to oxycontin unfolded.
31 After you moved to Queensland you engaged in security work; you were contracted to provide security to shopping centres and you became the general manager of this company. You left the role because your drug use was escalating.
Impact on victims
32 Through your counsel, you acknowledged that the victims of your offending would have been very frightened by what was happening to them. Mr Patzel declined the opportunity to make a statement, but I take into account that it was terribly frightening for him.
Matters in mitigation
Plea of guilty
33 You offered to plead guilty at a very early stage in these proceedings, prior to a committal mention. You adopted a flexible approach to the procedure in the County Court.
Remorse
34 I accept that your Plea contains within it an aspect of genuine remorse. While I am obliged to treat untested statements to psychologists with circumspection, you did tell forensic psychologist Sandra Cokorilo that you "Feel(s) awful for the victim's experience" and that you "Described being ashamed of (your) behaviour". These statements gather more force because they are very consistent with similar statements you made in your record of interview. In that interview, you give a frank account of your drug problem and make detailed admissions. Those admissions are likely to have contributed to the efficient investigation and prosecution of your case. That counts in your favour.
Delay
35 I do not find that there has been inordinate delay in the prosecution or resolution of your case. However, there have been a number of procedural twists and turns that are somewhat unusual, and you have no doubt been through a period of very considerable uncertainty.
Psychological material
36 A psychological report was tendered on your plea and I take its contents into account in general terms. It provides some context for your addiction. No particular Verdins submissions were advanced on this material.
Family Support
37 You have ongoing support from your family, in particular, from your mother and sister. I refer in particular to the reference of Ms Candice Wear, your sister that was Exhibit 3 on the Plea. Ms Weir speaks of you with affection and respect. She feels now is the first time in a long time that she can talk to her brother and not a stranger gripped by addiction. Your mother will welcome you into her home when you are released.
Work history
38 I have already outlined your work history. You have demonstrated that you can lead a prosperous and responsible economic life.
39 You have expressed remorse and taken responsibility for your actions really from the time of your interview with police. You have expressed motivation to seek treatment for your drug addiction upon your release from custody. While your addiction was apparently severe at the time of your offending it is not apparent that it is entrenched over many years.
40 All these factors, combined with your very limited prior history and the salutary effect of being in custody for the first time, allow me to conclude that your prospects for rehabilitation are very good.
Relevant sentencing principles
41 I am obliged to sentence you in a way that will deter not only you but other members of the community considering behaving in similar ways. I consider the role for specific deterrence (that means to deter you from doing the same thing again) to be perhaps less important in your case. I regard community protection to be best served by your rehabilitation. You must be punished for what you did. Through this sentence, the court denounces your behaviour. It is completely unacceptable to behave the way that you did; Mr Patzel was entitled to enjoy his home and his privacy without being intruded on in a terrifying way.
Totality
42 I have to have regard to totality when imposing sentence and I will make orders for accumulation accordingly.
Regard to current sentencing practices
43 I am obliged to have regard to current sentencing practices for similar offending and I have done so.
Pre-sentence Detention
44 You were arrested on 6 May and have remained in custody since that date. Accordingly, you have served 225 days' of pre-sentence detention, and I make that declaration pursuant to s.18 of the Sentencing Act.
Co-accused and parity
45
For completeness, I note that Mr Rowlands' contested committal hearing is listed for 4 May 2021. Ms Nobels was charged with theft in connection with this matter and her case is listed in the Dandenong Magistrates' Court on
13 January 2021. Both their situations are unresolved at and on the date of this sentence.
Disposition
46 So, now I am coming to the actual disposition, so this is the part where I tell you the numbers, Mr Weir.
47 On the charge of aggravated burglary I sentence you to a period of imprisonment of five months with a Community Corrections Order of nine months duration.
48 On the charge of theft I sentence you to two months' imprisonment.
49 On the charge of trafficking in a drug of dependence I sentence you to a term of imprisonment of three months.
50 On the charge of committing an indictable offence while on bail you are convicted and sentenced to one month imprisonment.
51 On the charge of dealing with property suspected of being the proceeds of crime you are convicted and sentenced to one month imprisonment.
52 I direct that one month of the sentence on Charge 2 and one month of the sentence on Charge 3 be served cumulatively upon each other and upon the sentence of Charge 1, making a total effective sentence of seven months' imprisonment and a community corrections order of nine months.
53 I reiterate that you have already served 225 days by way of pre-sentence detention.
54 Pursuant to s.6AAA of the Sentencing Act 1991, I indicate that had you not pleaded guilty, but had been found guilty, I would have sentenced you to a period of 20 months' imprisonment with a non-parole period of 12 months.
Ancillary orders
55
I have not heard the parties on ancillary orders. What I propose to do next is to read the conditions of my proposed Community Correction Order to Mr Weir. After I read those conditions out, I want you to just listen to them, and I am going to give you a moment to confer with your barrister to make sure you understand them, and she will give you some advice about that. Then, I will return and just address the question of the ancillary orders, if and when
Mr Weir consents to the order. I think some drafts were going to be forwarded to my associate. Is that right?
56 MS ZAMMIT: Yes, Your Honour. My instructor apologises, they have not been forwarded. They will be forwarded today. I understand that they are not opposed.
57 HER HONOUR: All right. Then I will be making both the disposal order for the drugs and the forfeiture order in relation to the cash as sought. I will just check the drafts when they arrive.
CCO conditions
58 All right, Mr Weir. So, this is what I need you to understand about your Corrections order.
59 OFFENDER: Yes.
60 HER HONOUR: At the end of it, after you have spoken to Ms Theis, I will be asking you to give your consent to the order, whether you have understood it, and that you are prepared to undertake it. All right.
61 I am now going to read you the conditions of the Community Corrections Order, which will be for a duration of nine months. Once I have read through these conditions, I am going to allow you an opportunity to speak to your barrister.
62 You will be first subject to the standard conditions of a CCO. That means, importantly, that you must not commit any other offences that are punishable by imprisonment during the nine month period. I need to be clear about this: if you do, you will be brought back to court, you are brought back before me and you would be re-sentenced for these offences; absent very powerful reasons, you should expect that that would involve further imprisonment.
63 You must report to the Sale Community Corrections Service within two business days of your release by telephone.
64 OFFENDER: Yes.
65 HER HONOUR: You are required to advise your supervisor in the Corrections office of any change of address where you are living or working, and you must do so within two clear working days.
66 It is a term of all Community Corrections Orders that you must submit to visits as directed and you must obey all of the instructions and directions of a Community Corrections Officer. You are not able to leave the State of Victoria without their prior permission. That is for the entire nine months.
Special conditions
67 Special conditions that I will attach to the order are as follows:
68 You will be required to complete programs to further address your drug use.
69 You must report for supervision with your case manager on a fortnightly basis or as directed by them.
70 You must submit to assessment and treatment for drug dependence.
71 You must submit to mental health assessment and treatment.
72 I note that unpaid community work in the context of the pandemic is currently not recommended by the Office of Corrections, and I adopt that recommendation.
73 So Mr Weir, those are the conditions. I am going to give you a moment to discuss them with your counsel, and then I will come back and if you consent to your Corrections order, we will have that order drafted and sent. All right, so I will be back in just a moment.
(At a later stage.)
74 HER HONOUR: All right. Ms Theis, have you had an opportunity to explain the proposed order to your client.
75 MS THEIS: I have in brief terms, Your Honour. He understood Your Honour's explanation and he consents to the order.
76 HER HONOUR: Thank you. All right, well we will record that consent in the circumstances. All that remains then, I think, is to make those orders for forfeiture and disposal but we will do that in Chambers once we have those documents. Is there anything else outstanding?
77 MS ZAMMIT: No, Your Honour. I do not believe so.
78 HER HONOUR: All right. I would just like to thank counsel again for their assistance in bringing this case to a close in the efficient way that you proposed. All right, we will rise until tomorrow.
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