Director of Public Prosecutions v Whalan

[2019] VCC 1169

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

AT BENDIGO
CRIMINAL JURISDICTION

CR 19-00771

DIRECTOR OF PUBLIC PROSECUTIONS

v

JACK WHALAN

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JUDGE:	HIS HONOUR JUDGE CAHILL
WHERE HELD:	Bendigo
DATE OF HEARING:
DATE OF SENTENCE:	26 July 2019
CASE MAY BE CITED AS:	DPP v Whalan
MEDIUM NEUTRAL CITATION:	[2019] VCC 1169

REASONS FOR SENTENCE
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Subject: burglary and theft from rural property – obtaining property by deception – possession of a handgun and others
Catchwords: guilty plea – frank admissions to police – 1^st offender – very supportive family – good prospects of rehabilitation
Legislation Cited:
Cases Cited: Boulton v The Queen  (2014) 36 VR 308.

Sentence: theft and possession of firearm – 8 months imprisonment, burglary, theft, obtain property by deception – 2 year community correction order

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Cordy
For the Accused	Mr J. Lowy

HIS HONOUR:

1Jack Whalan, you have pleaded guilty to:

·           one charge of burglary

·           1 charge of theft

·           2 charges of obtaining property by deception

·           1 charge of possessing an unregistered handgun;

·           1 charge of possessing a drug of dependence (methyl amphetamine)

·           charge of theft of a firearm

2You have also pleaded guilty to 2 summary offences:

·           possess a prohibited weapon (a double-edged knife) without an   exemption; and

·           possess a silencer without a permit

3The circumstances of your offending are set out in the amended summary of prosecution opening for plea which is exhibit A.  They are agreed facts.

4In summary:

·sometime between 9 and 11 October 2018, by cutting the padlock, you forced entry into a shed at an unoccupied rural property at Benloch and stole 3 motorcycles, 2 chainsaws, a Marlin .22 calibre rifle and a baseball bat.  The value of the property was just under $7000 and that offending constitutes Charge 1, burglary, Charge 2 theft, and Charge 7 theft of firearm

·on 12 October 2018 you sold 2 of the motorbikes $1700 to Taylors Lakes cash converters and that conduct constitutes Charge 3 obtaining property by deception.

·on 29 October 2018 you sold a Holden generator and a Makita radio, which had been stolen, to Epping cash converters for $430 that conduct constitutes Charge 5 obtaining property by deception.

5When you sold the 2 motorbikes to cash converters at Taylor’s Lakes you said you owned them and gave your own name and address.  You produced your driver’s licence to prove your identity and allowed them to take your photo.

6And, when you sold the generator and radio to cash converters at Epping you gave your true name and address.

7Unsurprisingly, on 16 November 2018, police went to your parents’ home, where you were living.

8They arrested and cautioned you and, when they told you they had a warrant to search for stolen property, you told them you had stolen chainsaws in the back of your utility. When they questioned you about stolen firearms you replied there was one in the back of your utility in a black bag. They searched your car and found the chainsaws and the bag. The rifle was in it; with a home-made silencer. It was a Marlin, Bolt Action .22 calibre firearm which had been shortened to a length that made it fall within the definition of a handgun under the Firearms act.

9They also found 2.5 g of methyl amphetamine and a double-edged knife.

10At interview, you told them:

·you were present, with others, when the Benloch property was burgled (charge 1) and you were handed the firearm by one of the others and you took it (charge 7)

·you also took the 2 chainsaws (which police found in your Ute on 16 November), 3 motorbikes (you sold 2 of them to cash converters and the 3rd, police found at your home) and the baseball bat (which the police found in your Ute)  (charge 2)

·you sold 2 of the motorbikes to Taylor’s Lakes cash converters (charge 3)

·you had the stolen rifle in the back of your Ute (charge 4)

·a “friend” had ground off the serial number on the rifle and cut the barrel and stock off, at your home

·you said the silencer belonged to the same person (summary charge)

·he left the silencer and the rifle in the bag which police found on the back of your Ute

·you had not used the rifle, but it had had a shot fired out of it, not by you

·you said you received the generator and radio from someone else on terms you would sell them and split the sale proceeds with that person (charge 5)

·and you admitted that the methyl amphetamine (charge 6) and knife (summary charge) were yours

11In addition to the admissions you made, you also gave police some information which may have assisted them in their investigations.

12Mr Cordy, who appeared for the prosecution, tendered police photographs of the stolen property found at your home and screenshots taken from your phone, which were exhibit B.

·one of the screen shots contains a message about a debt and “some Yamahas” (referring to the motorbikes you dishonestly sold to cash converters),

·another appears to be a “selfie” of you holding the sawn off rifle; and

·another shows the KTM motor bike which you had stolen in the rear of your Ute, parked in bushland.

13At the committal mention you pleaded guilty to the charges now before the court.

14You have no criminal history.

15You were born on 23 July 1989 and are now aged 30 years.  You were 29 years old when you offended.

16You come from a good family.

17You grew up at Merrigum on a dairy farm.  You have a younger sister.  In 2000, your family moved back to Pyalong where your father runs a cattle farm.  Your mother works in childcare.

18You went to local schools and completed year 12 at Assumption College, Kilmore with a Tertiary Enter Rank of 45.

19You have a good work record.

20While you were at school you worked part-time as a tiler.

21When you left school you completed a carpentry apprenticeship.  You worked as a carpenter for the same employer, until you were 24 years old, when you took up shearing, like your father and his father, before you.  You worked as a shearer until January 2019 when you were charged with other offences and remanded in custody.

22I note you had held a Longarm licence, under the Firearms act, which expired on 29 August 2017.

23You have a supportive family.

24You have always had a good relationship with your parents and, when you are released from prison you will return to live with them.  Unfortunately your father has a diagnosis of prostate cancer.  I was told his health is deteriorating.  Your mother and father supported you at court.  Your father looked plainly very unwell.

25I received the report, dated 22 May 2019, of Warren Simmons psychologist which was Exhibit 1.

26You told him, at the time of this offending, you were using 1.7 g of methamphetamine, every 3 to 4 days, and you committed these offences to get money to buy drugs.

27You said, in 2014, while you were working in Broken Hill, you asked a workmate for some methamphetamine to try.  You said you tried it once only at that time but, after 6 months, you started using it again for the feeling and energy it gave you.  Initially, you were a weekend user but your consumption intensified to daily use, before and after work snorting and later smoking it.

28In Mr Simmons opinion, you meet the diagnostic criteria for methamphetamine use disorder.  You have never had treatment for your addiction.

29In jail, you have signed up treatment programs but are still on the waiting list.

30You told Mr Simmons others were involved, as you told police, and while you took responsibility for your actions, and expressed remorse, you gave Mr Simmons the impression you were a follower rather than a leader in the offending.  Mr Simmons wrote “… it was fairly clear in the discussion that had Mr Whalan not being in the company of someone else, the offending may not have occurred.”

·In his opinion, you would benefit from drug and alcohol counselling;

·considering your history of stable employment, lack of prior offending and absence of significant antisocial personality traits, your prospects for rehabilitation are quite good; and

·given the connection between your offending and substance use, provided you can “effectively deal with your use of methamphetamines you would be at a low risk for further offending.”

31I accept his opinions with regard to your methamphetamine disorder, the likely influence of others on you and your risk of reoffending.

32After your arrest for this offending you were released on bail.

33However, on 9 January 2019, you were remanded in custody in relation to other charges for 24 property, dishonesty and drug related offences, including aggravated burglary, which are to be dealt with in the Magistrates’ Court.  I was told, in those proceedings, you are to appear at a contest mention on 30 July.

34On 17 April 2019, you were remanded in custody in relation to these matters.

35I was told, in prison, you have worked in the trusted position of unit billet.  Your parents have visited you at least monthly.  I was also told that you have undertaken the vocational courses which have been made available to you whilst you have been on remand.

36Mr Lowy, in written and oral submissions, relied on the following factors in mitigation of penalty:

1.  You were a first offender.

2.  You entered an early guilty plea, which has high utilitarian value, and is evidence of your acceptance of responsibility and remorse for your offending;

3.  You assisted police, from their first contact with you, by your admission of your own offending and the implication of others;

4. With strong family support, and effectual treatment for your methamphetamine addiction, you have very good prospects of rehabilitation.

37I accept the force of these submissions.

38Mr Lowy acknowledged your theft of the rifle and possession of it, after it had been modified, are objectively serious but submitted your prospects of rehabilitation, and also the protection of the community, will be best served if you were sentenced to a term of imprisonment in combination with a community correction order with therapeutic conditions.

39Mr Cordy submitted a combination sentence is “inadequate”.

40He submitted your theft of the rifle and possession of it, which he described as “a tool of an armed robber”, and which, you intended to sell, in combination with:

·your involvement in the burglary and theft and sale of other stolen property; and

·the prevalence of that type of offending from rural properties

mandated the imposition of a term of imprisonment exceeding 12 months (disregarding your presentence detention of which is now 100 days).

41I note you volunteered to your counsel you intended to sell the firearm, in response to a question I asked in the course of his oral submissions.  I take your admission, made against your interest, into account favourably in assessing the weight I should give to the answers you gave to police at interview and the history you gave to Mr Simmons regarding the circumstances of your offending and your reasons for it.

42I accept the objective seriousness of the firearm offences require the imposition of terms of imprisonment and that the prevalence of burglary and theft on rural properties is relevant to general and specific deterrence.

43I also accept that, while you did not intend to use the firearm yourself, the fact that you were willing to sell it, is a concerning feature which I must take into account.

44In order to consider all sentencing options I have had you assessed for a community correction order and you have been found suitable.

45The assessing community corrections officer reported you engaged well during the assessment interview.  You were found to be a low risk of reoffending according to the Corrections Victoria screening process.

46The assessing officer noted, “Research shows that the best outcomes in offender rehabilitation are achieved when interventions are targeted to factors directly related to a person’s offending behaviour and matched to the level of risk of reoffending.”

47In your case, the assessing officer recommended, because of your assessed low risk of reoffending, only drug abuse treatment and rehabilitation and supervision as special conditions of the order.

48I accept the recommendation.

49Taking into account:

1. that you are a first offender;

2. the relative lack of sophistication in your offending;

3. the likelihood you were influenced by others;

4. the relatively short duration of your offending;

5. your cooperation with police;

6. your early guilty plea;

7. your very good prospects of rehabilitation, provided you remain methamphetamine free;

8. current sentencing practices. 

In that regard I note;

·for broadly comparable firearms offending, this court has imposed sentences of a community correction order and or of imprisonment of less than 12 months;

·for the property and dishonesty offences, which would have otherwise been determined in the Magistrates’ Court, you likely would have avoided a custodial sentence; and

·a CCO can enable both punitive and rehabilitative purposes to be served simultaneously, as stated in the guideline judgement of Boulton (2014) 36 VR 308.

50Taking into account all those factors I have decided to impose terms of imprisonment in respect of the firearm offences combined with a community correction order, with therapeutic conditions to treat your drug addiction, and for supervision for the property and dishonesty offences.

51For the drug offence, I will impose a fine as I accept your possession was for personal use; the prosecution accepted it was.

52Please stand, Mr Whalan.

53On Charge 7 theft of a firearm you are sentenced to 8 months’ imprisonment

54On Charge 4   possess unregistered handgun you are sentenced to 8 months’ imprisonment taking into account it is the same firearm, albeit modified, as the firearm the subject of Charge 7 and, having regard also to the principle of totality, I direct the sentence be served concurrently with the sentence I have imposed on count 7.

55The total effective sentence is 8 months’ imprisonment

56On the charges of burglary Charge 1, theft Charge 2 obtaining property by deception Charges 3 and 5 and the summary charges of possess a prohibited weapon without an exemption and possess a silencer without a permit, I impose a community correction order, with conviction, for a period of 2 years with the following special condition:

·Firstly, that you attend for supervision; and

·Secondly that you attend for drug assessment and treatment

57On Charge 6 possess a drug of dependence you are convicted and fined $200.

58I declare you have already served 100 days of your sentence by way of presentence detention.

59I also declare, but for your guilty plea, I would have imposed a total effective sentence of 18 months with a non-parole release period of 12 months.

60By consent, I make orders, in the terms of the pro forma orders which have been e-filed, for the disposal of the methyl amphetamine found in your car and the knife, radios, chainsaws and mobile phones found at your home and forfeiture of the rifle and silencer, together with a magazine and ammunition which were not the subject of any charge.

61Also, with your consent, I make a compensation order in terms that you pay Cash Converters, Taylors Lakes, compensation in the sum of $1700.

62And, again with your consent, I make an order, under section 464 ZF of the crimes act, that you provide a sample of your saliva by buccal swab.  I must inform you, if you refuse to provide the sample, police may use reasonable force to obtain it from you.           

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