Director of Public Prosecutions v White

[2019] VCC 1941

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-01822
CR 19-01044

DIRECTOR OF PUBLIC PROSECUTIONS

v

JAKE WHITE
DYLAN STONE

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Melbourne
DATE OF HEARING:	16 October 2019
DATE OF SENTENCE:	22 November 2019
CASE MAY BE CITED AS:	DPP v White
MEDIUM NEUTRAL CITATION:	[2019] VCC 1941

REASONS FOR SENTENCE
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Subject:  Burglary, theft
Sentence:  White:  5 years' imprisonment with a non-parole period of 3 years and
6 months.  Stone:  6 years' imprisonment with a non-parole period of 4 years and 2 months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Triandos
For Accused White	Mr I. Polak
For Accused Stone	Ms J. Clark

HIS HONOUR:

1Jake White and Dylan Stone, each of you has pleaded guilty to a number of charges.

2You were jointly charged with one charge of burglary and one charge of theft.  Each of those charges has a maximum penalty of 10 years' imprisonment.  You were each also charged jointly with one charge of attempted theft, which has a maximum penalty of five years' imprisonment.

3Those joint charges were contained in Indictment C1811786.1 of the joint indictment.  That indictment also contained a charge against you alone, Dylan Stone.  That was a charge of handling stolen goods, for which the maximum penalty is imprisonment for 15 years.

4All of the offending charged in the joint indictment occurred on 28 January 2018.

5In addition, each of you pleaded guilty to charges brought against each of you separately. 

6Indictment J10482760.1 of the White indictment, charged you, Jake White, with one further separate charge of handling stolen goods, for which the maximum penalty is imprisonment for 15 years.  That offending occurred on
9 February 2018.

7Indictment J10372736.1, the Stone Indictment, charged you, Dylan Stone, with one charge of being a prohibited person, you possessed a firearm, for which the maximum penalty is 10 years' imprisonment, and one further separate charge of handling stolen goods, for which the maximum penalty is imprisonment for 10 years.  The offending charged in the Stone indictment occurred on 7 February 2018.

8When each of you pleaded guilty you each also admitted a lengthy criminal history.

9You, Jake White, are nearly 34 years of age.  You have a number of prior convictions from seven previous court appearances between 2013 and 2017.  You have prior convictions for dishonesty and driving offences and for dealing with property suspected of being proceeds of crime, as well as for possession of drugs and family violence offences.  On four previous occasions you have been convicted of breaching a Community Corrections Order.  When this offending occurred you were then subject to a Community Corrections Order, which aggravates this offending.

10Would you mind sitting down in the court.  You, Dylan Stone, are aged 27 years.  You have a number of prior convictions from nine previous court appearances between 2010 and 2017. You have prior convictions for dishonesty and driving offences and for dealing with property suspected of being proceeds of crime, as well as for possession and trafficking of drugs and for acts of violence.

11The circumstances of the offending of each of you are contained in a summary of prosecution opening that was tendered in evidence and read in open court by the prosecutor, Mr Triandos.  Your counsel, Mr White, and your counsel,
Mr Stone, accepted that the prosecution opening was accurate and forms a proper factual basis upon which I can proceed to pass sentence upon you.  In those circumstances it is not necessary that I here set out in detail all of the facts but do so only in an abbreviated way. These sentencing remarks should, however, be read with what is set out in more detail in the summary.

Dealing First With the Offending in the Joint Indictment.

12On the 28 January 2018 you, Stone, went with a co-offender, Laura Robertson, to a property in Wellington Road, Lysterfield.  You went there in a stolen Jeep Cherokee which in turn had number plates stolen from another Jeep Cherokee fitted to it (Charge 1).  At the Wellington Road property you meet up with White, who had driven to the property by separate means in a white Renault Van.  It was around 2.30 am when you and Robertson met up with Stone.

13The Lysterfield property is a rural property with a residence and towards the rear of the property there is  a large entertaining and storage shed.  At around 2.50 am the both of you forced entry to the rear shed, backed up the Renault van and loaded it with a number of valuable items described in paragraph 12 of the summary.  The three of you then left the property with the stolen objects (Charges 2 & 3).

14At around 5 am you both returned to the Lysterfield property and stole further property before turning your attention to a trailer hooked up to a further Jeep Grand Cherokee.  The trailer contained two jet-skis.  You, White, manoeuvred the security cameras to avoid detection.  You both then attempted to unhook the trailer containing the jet skis before your presence was made known and you were disturbed by a barking dog (Charge 4).

15You were confronted by the owner of the property before you both drove from the Lysterfield property.  Police were called.

16The stolen Jeep Grand Cherokee was later found abandoned and DNA located within it connected you, Stone, to this vehicle.  A short time later the white Renault van was also located and DNA found within it connected you, White, to this vehicle.

17On the 7 February 2018 police executed a search warrant at a property in Cranbourne North and arrested you, Stone, and Robertson, and the property stolen from Lysterfield was found.  Fingerprints on the property matched to you, Stone.

18This was clearly organised and sophisticated offending.  It portrays a deal of planning and was clearly driven by the desire to make money.  The objects stolen were clearly valuable.  The burglary and theft was conducted in a brazen manner, particularly the fact that you were both so confident in your criminal behaviour that you chose to go back to the scene of the crime a second time.

19I turn to the offending by you, Stone, charged in the Stone Indictment.  When police executed a search warrant at your home they located a Remington shotgun (Charge 1),  together with a stolen motorbike and a HSV Holden vehicle.  The motorbike and the HSV Holden had previously been stolen (Charge 2).

20The offending involved in these offences is also very serious.  Criminals possessing guns is a prevalent offence and any sentence must have full regard to general and specific deterrence as well as denunciation.  The charge of handling stolen goods again relates to valuable items and any sentence of you for these offences must also have full regard to general and specific deterrence as well as denunciation.

21I turn to the offending by you, White, charged in the White indictment.

22On the 9 February a motor vehicle accident occurred in which you were involved.  At the accident scene police located a 200 litre diesel tank that had previously been stolen.  Handling stolen goods is a prevalent offence and again any sentencing court must have regard to general and specific deterrence as well as denunciation.

23You have each pleaded guilty to the charges, and that is to the credit of each of you. By your pleas of guilty you have saved the time and costs of a joint trial of the charges in the joint indictment as well as second individual trials against each of you respectively for the charges in both the Stone and the White indictments.  By your pleas of guilty you have each admitted responsibility for your crimes, and each of you has facilitated the administration of justice. 

24Here, the charges proceeded to this court by way of hand-up brief.  You each entered a plea of guilty after the charges in the joint indictment were listed for trial, awaiting allocation of a trial judge.  Although your pleas of guilty were each not made at the earliest opportunity, I nevertheless treat each of you as having pleaded guilty at an early time.  Because you have each pleaded guilty at an early time the law provides that each of you is entitled to a reduction in sentence, and this will be reflected in the sentences that I will shortly pass.

25In respect of charges 2 to 4 in the joint indictment, I admitted into evidence a victim impact statement from Kylie Howard, an occupant of the Lysterfield property.  Your offending has left her feeling unsafe in her own home and has affected her way of living in many ways.  In passing sentence I have taken the victim impact statement into account, as I must.

26Your co-offender, Laura Robertson, pleaded guilty before another Judge of this court to charges of burglary, theft and committing an indictable offence whilst on bail and dealing with property suspected of being the proceeds of crime.  She was sentenced to a combination sentence of nine days' imprisonment time served and a Community Corrections Order for 15 months with conditions.  It was not submitted in sentencing either of you that parity principles apply.  I conclude her role was relatively minor in this offending and her prior criminal history was limited, unlike the position of each of you.

27I turn to some matters personal to you, Dylan Stone.  Your counsel prepared an outline of his submissions which I marked as Exhibit S-1 on the plea.

28At the time of this offending you were aged 25 years and you are now aged 27.  You are the youngest of three children to parents who separated when you were aged three years.  You grew up living with your mother and having regular contact with your father.  Your mother and her partner moved to Western Australia when you were aged 18 years.  You then moved to Melbourne.  You have excellent relationships with both of your parents.

29You were educated at primary and secondary level in Terang in country Victoria.  You suffer from literacy deficits, which I accept you are working at improving.

30From a young age you have been employed in farm work and after leaving school you completed a pre-apprenticeship in plumbing but you did not proceed to do an apprenticeship.  You have worked as a concreter and tiler.

31You have been a keen motor bike rider from a young age and you have suffered spinal injuries from accidents involving motorbikes.  You were prescribed oxycontin for pain, and this has led to drug abuse.  You developed a drug habit for opioids and methamphetamine.  I was told and accept that in a prison setting you are presently drug free.  A number of certificates of urine analysis were tendered in evidence.  They showed negative results.  It was submitted by your counsel that you have reasonable prospects for rehabilitation and this should be reflected in any sentence.  In sentencing you I must have regard to your prospects for rehabilitation, which I think at best to be guarded.  You are drug free in a prison setting but whether this remains the case outside of prison remains to be seen.  Your criminal record suggests that when drug affected you commit crimes.

32I was told that you suffer from Post-Traumatic Stress Disorder and anxiety and depression following your motorcycle accident and injury as a 13 year old boy, and you were medicated in custody for these injuries.  To your credit, despite these prior injuries, you seek work of a labouring kind outside of prison.

33You have been in custody since 7 February 2018 (653 days), and on the
28 March 2018 you received a sentence in the Magistrates’ Court of three months' imprisonment for unrelated offending.  In respect of these matters you have 562 days' pre-sentence detention.  You have further matters pending in two Magistrates Courts.  In sentencing you for these matters I must, and do have, regard to the sentencing principle of totality and I have taken the total time that you have now served into account.

34In custody you have been transferred from Port Phillip Prison to Barwon Prison and whilst there you have been held in solitary confinement 22 hours per day.  Your time in custody has therefore been more burdensome than for most other prisoners.  When able to do so, and when not confined, you have undertaken and completed a number of courses available to you, including vocational courses, to assist you to get work upon eventual release.  You have a supportive family who visit you and you hope to work as a concreter upon release.

35This is the longest continuous period that you have been in prison.  Your counsel correctly submitted that totality in sentencing is an important factor in sentencing you.  In passing sentence I am mindful of the need to properly apply that principle whilst sentencing for what I regard as very serious examples of the crimes that you have committed.  Your counsel submitted that time served in pre-sentence detention already exceeds the appropriate sentence in this case.  I do not accept that submission which, in my view, does not have proper regard to the level of offending you engaged in or the need for the sentence of you to have proper regard to deterrence, both general and specific and to denunciation.

36I turn to deal with matters personal to you Jake White.

37Your counsel also filed with the court a helpful outline of submissions.  You are aged 35.  You completed an apprenticeship as a butcher, you have a good history of work in that field and you and your brother successfully operated a butcher’s shop.  Following the death of your mother at a young age and the breakdown of a relationship, you began drinking heavily and began using drugs.  Your business life and life generally is said to have gone out of control and this led to your offending, and your criminal history is seen in that context.  You told Mr Ball, psychologist, that in the years leading up to your arrest you were an habitual user of methamphetamine and GHB.

38At the time of this offending you were still subject to two Community Corrections Orders made in the Dandenong Magistrates’ Court in August and September 2017.  Those dispositions were imposed for dishonesty offences, amongst others.

39I received into evidence good references from your father and from Mr Tilley.  I also received a number of urine screen results showing negative results to testing in custody for drugs, and I acknowledge you have also engaged in courses in custody designed to assist you upon release.

40I also received into evidence a psychological report from Mr David Ball.  He opined, as follows:

41'Based on Mr White’s personal and forensic history and clinical interview, I am of the opinion that he fails to satisfy any DSM 5 diagnostic criteria for frank mental illness, personality disorder, mood disorder, substance use disorder or other pervasive clinical syndrome.  However, he has suffered episodes of lowered mood, depression and anxiety, related to unresolved grief since his mother’s death and subsequent loss of his relationship.  He stated today that he believes he has now adequately resolved his grief.'

42'In my view, Mr White’s management in the community presents few, if any, challenges.  He has stable accommodation and is eminently employable in his trade as a butcher.  He said that he would like to receive on-going counselling in the community upon his eventual release.'

43You have been in custody since 19 February 2018, a period of 640 days, of which 253 days is pre-sentence detention for these matters.  Since being in custody you have also received a sentence of imprisonment in the Magistrates’ Court for unrelated offending.  In sentencing you for these matters I must, and do have, regard to the sentencing principle of totality and I have taken the total time that you have now served into account.

44It was submitted on your behalf the time served was sufficient punishment for your offending to be dealt with here. As with Mr Stone, I do not accept that submission.  The offending is too serious and the sentencing principles of deterrence (both general and specific) and denunciation must inform the sentence you receive.  Whilst I acknowledge you want to rid yourself of drugs, and I accept you have good family support and employment prospects, in my judgement, your prospects for rehabilitation outside of a prison setting must remain guarded.

45In the sentencing of each of you I must have proper regard to the sentencing principles of deterrence (both general and specific), denunciation, just punishment and your respective prospects for rehabilitations which, as I say, must remain guarded.  I must also have due regard to protection of the public from what are prevalent offences.

46Dealing with you, Mr Stone:

on Charge 1 in the joint indictment, handling stolen goods, being the Jeep Grand Cherokee, you are convicted and sentenced to be imprisoned for a period of one year;

on Charge 2 in the joint indictment, burglary, you are convicted and sentenced to a term of imprisonment of four years;

on Charge 3 in the joint indictment you are convicted and sentenced to a term of imprisonment of three years;

on Charge 4 in the joint indictment, attempted theft, you are convicted and sentenced to a term of imprisonment of one year;

on Charge 1 of the Stone indictment, prohibited person, possess a firearm, you are convicted and sentenced to a term of imprisonment of 18 months;

on Charge 2 of the Stone indictment, handle stolen goods, you are convicted and sentenced to a term of imprisonment of two years.

47I direct that six months of each of the sentences imposed on charges 1 and 4 on the joint indictment, and six months of each of the sentences imposed on charges 1 and 2 of the Stone indictment, cumulate upon the sentence imposed on Charge 2 in the joint indictment, making a total effective sentence of six years' imprisonment.

48I direct that you serve a minimum term of four years and two months before you are eligible for release on parole.

49I declare that 562 days' pre-sentence detention be reckoned as having been already served of the sentences passed this day, and be entered into the records of the court and be deducted administratively.

50For the purposes of s.6AAA of the Sentencing Act, I state that had it not been for your pleas of guilty to the charges I would have imposed a total effective sentence of eight years' imprisonment and a non-parole period of five and a half years.

51Dealing with you White:

on Charge 2 in the joint indictment, burglary, you are convicted and sentenced to a term of imprisonment of four years;

on Charge 3 in the joint indictment, theft, you are convicted and sentenced to a term of imprisonment of three years;

on Charge 4 in the joint indictment, attempted theft, you are convicted and sentenced to a term of imprisonment of one year;

on Charge 1 in the White indictment, handling stolen goods, being the diesel tank, you are convicted and sentenced to a term of imprisonment of one year.

52I direct that six months of each of the sentences imposed on Charge 4 on the joint indictment, and six months of the sentence imposed on Charge 1 of the White indictment, cumulate upon the sentence imposed on Charge 2 in the joint indictment, making a total effective sentence of five years' imprisonment.

53I direct that you serve a minimum term of three and a half years' imprisonment before being eligible for release on parole.

54I declare that 285 days' pre-sentence detention be reckoned as having been already served of the sentences passed this day be entered into the records of the court and be deducted administratively.

55For the purposes of s.6AAA of the Sentencing Act, I state that had it not been for your pleas of guilty to the charges I would have imposed a total effective sentence of seven years imprisonment with a non-parole period of four years and eight months.

56Any questions arising out of that?

57MR MAY:  No, sir.

58MR TRIANDOS:  No, Your Honour.  Just to check that any ancillary orders have been made, Your Honour.

59HIS HONOUR:  I have been asked to sign forfeiture orders and disposal orders.  I understood those not to be opposed and I will sign them.

60COUNSEL:  If Your Honour pleases.

61HIS HONOUR:  Yes.  Would you take Mr White and Mr Stone back into custody, please?

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