Director of Public Prosecutions v Young

[2024] VCC 1488

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

 Revised
Not Restricted
 Suitable for Publication

Case No. CR-24-00999

DIRECTOR OF PUBLIC PROSECUTIONS

v

RHYS YOUNG

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JUDGE:	HER HONOUR JUDGE CHAMBERS
WHERE HELD:	Melbourne
DATE OF HEARING:	9 September 2024
DATE OF SENTENCE:	23 September 2024
CASE MAY BE CITED AS:	DPP v Young
MEDIUM NEUTRAL CITATION:	[2024] VCC 1488

REASONS FOR SENTENCE
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Subject:Criminal law - Sentence   

Catchwords:              Guilty plea – negligently dealing with the proceeds of crime – possession of a prohibited weapon without exemption or approval –  offending related to use of a Mercedes Benz negligent as to whether it was proceeds of crime – extendable baton found in vehicle – prior criminal record, including prior dishonesty offences – difficult childhood led to long-standing drug abuse – concrete steps towards rehabilitation since being in custody – serving a sentence for separate offending – totality a significant sentencing consideration.

Legislation Cited:      Crimes Act 1958 (Vic); Control of Weapons Act 1990 (Vic); Sentencing Act 1991 (Vic)

Cases Cited:DPP v Young (2024) VCC 197; Worboyes v The Queen (2021) VSCA 169; Biba v The Queen [2022] VSCA 168; Bugmy v The Queen (2013) HCA 37; R v Verdins (2007) VSCA 62

Sentence:                  12 months’ imprisonment with a non-parole period of six months with a new non-parole period fixed.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mx C. Rattray	Office of Public Prosecutions Victoria
For the Offender	Mr T. Acutt	Slink & Keating

HER HONOUR:

1Rhys Young, you have pleaded guilty to negligently dealing with the proceeds of crime contrary to s194(4) of the Crimes Act 1958 (Vic), the maximum penalty for which is five years’ imprisonment.

2You have also pleaded guilty to a summary offence of possessing a prohibited weapon without exemption or approval contrary to s5AA of the Control of Weapons Act 1990 (Vic), the maximum penalty for which is 240 penalty units or two years’ imprisonment.

3You were born in March 1988 and are now 36 years old. You have admitted your criminal record.

Circumstances of Offending

4The background to your offending is as follows.

5On 20 May 2024, an application for a commercial loan and mortgage was lodged with Pepper Money Ltd, a consumer lending company, in the name of Manjit Singh Rattu, in the sum of $144,252.00 together with interest.

6The application was initiated through a finance broker, AAA Finance and Insurance, for the purpose of purchasing a Mercedes Benz through a company known as Prestige Cars.

7Settlement of the loan was completed on 23 May 2022 and the sum of $143,000.00 was paid by Pepper Money Ltd to Prestige Cars, after which the Mercedes was collected by a tow truck.

8Around the same time Mr Rattu received a letter from Pepper Money Ltd stating that his loan had been approved. Knowing he never applied for a loan, Mr Rattu dismissed the letter as a hoax.

9On 9 June 2022, Mr Rattu received notification from VicRoads that the Mercedes had been transferred into his name. Mr Rattu had not completed any transfer paperwork and had not purchased this vehicle. Mr Rattu ultimately reported the matter to the police. No repayments have ever been made in respect of the loan.

10To be clear, you are not charged with any offence arising from the dishonest conduct giving rise to the purchase of the Mercedes Benz in Mr Rattu’s name.

11The circumstances of your offending are as follows:

12On 23 June 2022, the police observed the Mercedes parked across the pedestrian footpath outside a block of flats on St Kilda Road, Brighton, and identified that there was an 'active whereabouts' on the vehicle. The police searched the vehicle, locating a leather wallet on the front passenger seat, with a fuel and credit card in your name. Elsewhere in the vehicle the police located your driver’s licence and a marine licence in your name.

13While the police were making enquiries a male spoke with them and offered to make a phone call to have the vehicle moved. Soon after this you approached the police and identified yourself. You apologised for parking on the footpath saying you were attending to an emergency. You were arrested by police but because CIU members were unable to attend, you were released.

14After being released you had a conversation with the police about the vehicle, stating, 'I had a feeling about this… and I’d actually like to buy the car. I had a feeling because I got it a bit cheaper…and now if I have a chance to buy it legitimately if there’s something wrong… as long it’s not stolen.'

15The Mercedes was seized and towed to a depot in Dandenong South for forensic examination.

16On 30 June 2022, the police conducted a forensic examination of the Mercedes. The vehicle was photographed and searched. Various items were seized including an extendable baton which was found under the footwell of the front passenger seat. This is the subject of Summary Charge 2, possessing a prohibited weapon without exemption or excuse. A latent fingerprint matching yours was located on the rear driver’s side window.

17Vehicle trip data from the Mercedes showed that the vehicle had been at your address the day after being purchased from Prestige Cars and had been used on 13 occasions between 24 May 2022 and 7 June 2022. The vehicle also registered as having regularly exited the EastLink toll road at Thompsons Road, being the closest exit to your address during that period. Your dealings with the vehicle on 23 June 2022, negligent as to whether the vehicle was proceeds of crime, is the subject of Charge 1.

Procedural history

18The procedural history to these proceedings is relevant to your sentence.

19On 22 December 2023, you were sentenced by Judge Moglia to three years, nine months’ imprisonment with a non-parole period of two years and four months for offending that included drug trafficking, possession of testosterone and various types of steroids, being a prohibited person in possession of a firearm and dealing in the proceeds of crime.[1] These charges arose after your vehicle was searched and the police executed search warrants at your factory and home on 7 September 2022. You were arrested that day and were refused bail on 8 September 2022. You were remanded in custody until you were sentenced on 22 December 2023.

[1] DPP v Young (2024) VCC 197

20In relation to the matter for which I am to sentence you, it was not until 11 October 2022 that you were offered the opportunity to participate in a record of interview with police, which you declined.

21You were charged with this offending by summons on 2 December 2022. On 20 March 2024, the Magistrates Court directed that the charges be uplifted to the County Court. You entered a guilty plea at a committal mention on 11 January 2024. You were remanded on these matters on 18 June 2024, although I note that you were serving the sentence imposed by Judge Moglia at that time and have no pre-sentence detention in respect of this matter.

Offence gravity

22By your guilty plea you accept that a reasonable person in your position would have realised there was a high risk that the Mercedes being driven by you on 23 June 2022 was a vehicle derived from criminal offending.

23I accept the objective gravity of your offending is reflected by the fact that, as stated by your counsel, you sustained the fraud by your continued use of the Mercedes vehicle for 30 days, in circumstances where you should have been aware it was proceeds of crime. The value of the vehicle was significant.

24Although you are not to be punished again for previous offending, it is highly concerning that you engaged in this conduct in circumstances where you have prior convictions for dealing with property suspected of being proceeds of crime, dishonestly receiving stolen goods and theft of a motor vehicle.

25You have no prior convictions for possessing a prohibited weapon, although I note that you were subsequently sentenced for being a prohibited person in possession of a firearm. Your possession of the extendable baton in the vehicle, without exemption, is concerning in the context of your prior criminal history, although I note there are no aggravating features associated with your possession of the baton on this date.

Personal Circumstances

26I turn now to your personal circumstances.

27You were born in March 1988 and are the youngest of two sons born to your parents. Your parents separated when you were six. Your mother subsequently re-partnered and together your mother and stepfather had a daughter.

28Although your mother, a school teacher, was a source of stability in your life, your father abused drugs and alcohol. You continued to spend time with your father in your childhood and early adolescence, during which time you were exposed to sexually explicit material and your father’s drug taking activity.

29You report that your stepfather denigrated and emotionally abused you, treating his daughter more favourably.  At around the age of 12 or 13 you report being sexually and physically abused by a close family member, causing you significant trauma. From your perspective your mother minimised your stepfather’s behaviour towards you, and you felt abandoned.

30At the age of 14 you were evicted from the family home and began living with your grandparents in Rye and later Queensland. You enjoyed a close relationship with your grandmother.  You eventually returned to Victoria where you lived with your father until he passed away from an alcohol-related illness. You were then 16 years old. You returned to live in a caravan at the front of your mother’s house.

31You left school during Year 10 and at the age of 15 you were encouraged by your stepfather to enter the workforce.  You have since accumulated a strong work history in labouring and construction industries.  At 18 you worked in Queensland for several years as a painter and laying timber floors. Upon returning to Melbourne you started work as a labourer, later working with various crane companies. 

32You have had three relationships of significance but your longest one has been with a woman who now lives in Queensland and who still supports you. However, you recognise that the relationship can only continue if you no longer abuse drugs.

33You began using 'party drugs' at a young age. You began abusing cannabis at 12, ecstasy from the age of 14 and methamphetamines from the time you were 22, coinciding with the end of your first relationship. Your use of drugs from this time led to your first involvement in criminal activity.

34In 2013 you were sentenced to 12 months’ imprisonment for offending including trafficking in amphetamine, burglary, dealing with property suspected of being the proceeds of crime, dishonestly receiving stolen goods and other offences.

35In 2014 you were sentenced by the Supreme Court on appeal for a serious kidnapping, false imprisonment and other offences to a term of seven years and nine months’ imprisonment with a non-parole period of five years and three months.  The judgment of the Court of Appeal reveals that the kidnapping arose out of a dispute you and others had with a small-time drug dealer.  You had paid him $13,000 for two semi-automatic pistols that he had not delivered, and you suspected he had just stolen the money.

36After your release you sought support from the Judy Lazarus Transition Centre but within months following your parole you began using Xanax to help you sleep. 

37In 2022 you and an associate began a business in construction and plant hire. The business never became fully operational, and this added to your everyday stress leaving you feeling 'overloaded', which contributed to your relapse into drug use. With significant stresses you soon began using different amounts of ice daily.  You attempted to appear healthy and fit by taking testosterone and growth hormones. This is the context to your offending in 2022.

38As stated, on 7 September 2022, the police arrested you in Frankston and searched your vehicle locating 13.6 grams of methamphetamine, $7,210 cash (leading to a charge of dealing in suspected proceeds of crime) and cartridge ammunition. Also found were a balaclava, bolt cutters, gloves and a revolver holster. At your Seaford factory the police found a Smith & Wesson revolver, a further 13.8 grams of methamphetamine, vials of steroids and rounds of ammunition which were located in a toolbox behind a false wall. At your house the police located vials of testosterone, human growth hormone and Xanax tablets.

39It is for this offending that you are currently serving the sentence of three years, nine months’ imprisonment.

Matters in mitigation

40I turn now to discuss the matters that were raised in mitigation of your sentence.

41First and foremost, you indicated an intention to plead guilty to these charges on 20 March 2024. On this date the Magistrate uplifted the indictable charge and following a committal mention on 18 June 2024 you entered your guilty plea. In doing so you acknowledge responsibility for your offending and saved the court and the community the resources associated with a trial. The utility of your guilty plea operates in mitigation of your sentence.

42On your behalf it was argued that your guilty plea also attracts an additional sentencing discount in line with the authority of Worboyes,[2] which applies where a guilty plea was entered at a time when the backlog of trials arising from the COVID-19 pandemic was still impacting the criminal justice system. Your counsel highlighted the fact that regard was had to this additional utility when you were sentenced by Judge Moglia in December 2023, having entered your guilty plea in that matter on 15 December 2023. However, by the time your guilty plea to these charges was indicated in March 2024, the backlog of trials in this court caused by the impact of the pandemic had resolved.[3] No additional sentencing discount flows from the fact you indicated an intention to plead guilty in March 2024.

[2]Worboyes v The Queen (2021) VSCA 169

[3]Chief Judge Peter Kidd ‘Update On The Status of the County Court’s COVID-19 Backlog of Criminal Jury Trials’ 9 October 2023 ; Biba v The Queen [2022] VSCA 168, [26]

43Secondly, your difficult and disrupted experiences in childhood and early adolescence are relevant to your sentence, although it was accepted by your counsel that they do not reach the level of engaging the principles enunciated in the case of Bugmy.[4] In a reference provided by your older brother, he speaks of the difficult relationship you had with your stepfather, stating you had to 'endure many sorts of verbal and written assaults'[5] and that as a result, you struggled to focus on schooling. Your brother says that this situation was more difficult for you, noting he left home at the age of 16, leaving you behind at 14. These experiences go some way in explaining, but not justifying, your offending conduct.  

[4]        Bugmy v The Queen (2013) HCA 37

[5]        Character Reference written by Stuart Young dated 10 December 2023 (Exhibit 3)

44Psychologist Aaron Cunningham assessed you for the purposes of your plea hearing before Judge Moglia and provided a report to the court dated 11 December 2023, which was also relied upon in this matter.[6] Mr Cunningham states that your upbringing affected your development, contributing to your low self-esteem from your early teens and to your addictive behaviours.

[6]Psychological Report of Dr Aaron Cunningham dated 11 December 2023 (Exhibit 6)

45Mr Cunningham is of the opinion that the constant denigration by your stepfather meant that your self-worth was contingent upon the acceptance of others. He states that your exposure to your father’s drug use normalized drug abuse as a means of coping with stress.

46You were also assessed by psychologist Sophie Russell, who is employed by the Australian Forensic Therapeutic Rehabilitation (AFTR) in September 2023, who diagnosed you with a chronic poly-substance use disorder and a provisional diagnosis of an acute stress disorder, a mild form of post-traumatic stress disorder.[7] However, it was not argued there was any connection between these disorders and your offending and no reliance is placed on the authority of Verdins[8] in further moderation of your sentence.

[7]        Diagnostic Assessment Report dated 22 September 2023 (Exhibit 1)

[8]        R v Verdins (2007) VSCA 62

47As Judge Moglia observed, since being in custody you have made concerted efforts towards your rehabilitation, recognising the link between your risk of future offending and your addiction to drugs. This is to your credit. On remand you completed five drug and alcohol counselling sessions with Ms Karly Doyle of OnTrack Counselling and Consulting between 13 February 2023 and 14 June 2023, in addition to other programs such as the Take Stock and Adapt programs and had two clear urine screen samples from 28 October 2023 and 27 December 2023.[9]

[9]        On Track Counselling Letter signed by Karly Doyle, Forensic Alcohol and Other Drug Specialist, dated     15 June 2023 (Exhibit 4)

48You have been taking medication for ADHD, recently increasing the dosage. As an indication of your motivation to engage in further drug treatment you were assessed for outpatient drug programs by AFTR in September 2023.

49In addition your former employer, Top Up Labour Hire Pty Ltd, wrote to the court in June 2023 to confirm that you have employment available to you upon your release from custody.[10] Your counsel confirmed that this offer remains open to you.

[10]        Top Up Labour Hire Pty Ltd Letter dated 13 June 2023 (Exhibit 2)

50You retain the support of your friends and family, as is demonstrated by numerous character references provided on your behalf, including from your mother, brother and sister. Your older brother has accommodation available to you following your release and you hope to return to live with your partner in Queensland at some stage.

51Since being sentenced on 22 December 2023, you have maintained your engagement in programs to assist in your rehabilitation, including a six hour 'Ice and Me' program with a focus on relapse prevention strategies that you completed on 17 April 2024.

52You have also been working seven days a week in custody, undertaking maintenance work at Loddon Correctional Facility, including painting and other maintenance work.

53Ultimately, much will depend on your ability to remain drug free in the community. I accept the conclusion reached by Mr Cunningham that your risk of reoffending is contingent upon addressing your drug problem. You will require supervision and support to do so. I accept that your demonstrated motivation to engage in drug treatment, combined with family support and the availability of employment, enhance your prospects of rehabilitation into the future.

54However, specifically deterring you from future dishonest offending remains a relevant sentencing consideration at this time, in addition to general deterrence.

55Finally, and significantly, the sentencing principle of totality is a matter of weight in this case. You are now serving the sentence imposed by Judge Moglia on 22 December 2023 for serious drug-related offending in September 2022. The offending for which you are now to be sentenced pre-dates that offending, having occurred on 23 June 2022.

56In sentencing you for this offending I must ensure that the total effective sentence for both incidents of offending reflects the overall criminality of your offending, and no more. In particular, I have had regard to the principle of totality in determining the extent to which this sentence operates to extend your non-parole period, mindful of the progress you have made with your rehabilitation efforts in custody.

Sentence

57Balancing the matters to which I have referred, most notably the sentencing principle of totality, while having regard to the maximum penalty for the offences, I sentence you as follows:

58On Charge 1, negligently dealing with proceeds of crime, you are convicted and sentenced to 12 months’ imprisonment. I fix a non-parole period of six months pursuant to s11(2) of the Sentencing Act 1991.

59Pursuant to s14(1) of the Sentencing Act, I fix a date of six months’ from today as the new single non-parole period in respect of all sentences you are to serve or complete.

60On Charge 2, possession of a prohibited weapon, you are convicted and fined $700.00.

61I make the disposal order sought by the prosecution, noting that it is not opposed.

62Finally, had you not pleaded guilty to this offence, pursuant to s6AAA of the Sentencing Act, I indicate the sentence I would otherwise have imposed is a sentence of 18 months’ imprisonment with a non-parole period of 12 months.

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