Director of Public Prosecutions v Zorkau

[2020] VCC 1363

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 20-00898

DIRECTOR OF PUBLIC PROSECUTIONS

v

STEPHEN ZORKAU

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:	18 August 2020
DATE OF SENTENCE:	1 September 2020
CASE MAY BE CITED AS:	DPP v Zorkau
MEDIUM NEUTRAL CITATION:	[2020] VCC 1363

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Moore	Office of public Prosecutions
For the Accused	Mr. R. de Kretser	Criminal Lawyers Geelong

HIS HONOUR:

1Stephen Zorkau, you have pleaded guilty to two charges of theft and one charge of attempted burglary and one charge of burglary.  These offences occurred on the six days, from 8 December to 13 December 2019.  Your crimes were part of a well-planned and organised series of burglaries on mainly commercial premises, and the related thefts of cigarettes and cars to enable the burglaries to occur. 

2There are three other co-accused, who have yet to have their committal proceedings finalised and moved from the Magistrates' Court to the County Court.  As those co-accused may go to trial when jury trials resume, I will not name them here. 

3However, what is clear from the intercepted telephone calls between you and one of the other offenders, is that the other offender was in a lead or directing role, You were an enthusiastic participant acting on directions, but also able to engaged in your own offending.  You provided intelligence to the leaders. 

4You went first to a service station in Ocean Grove on 8 December 2019, where you undertook surveillance and scoping for later crimes.  You then drove to a service station in Moolap, where you attempted to break in with the intent to steal but were stymied by the security or the locking systems at this service station. 

5You later reported to one of the leaders in a phone call at 2 am on that day.  The conversation read as follows, you said, 'We went out to Ocean Grove to look at a servo and went to a BP on Portarlington Road to do it by myself.  I only had a gemmy bar and could not break that padlock on top of the doors, mate; otherwise, I was in'.  The response from the other offender was, 'What about driving in the doors?'  You said, 'Could do, but I think there is a bollard there.  Bolt cutters or a cordless grinder and I would've got in straight away'.

6You went on, 'The one in Ocean Grove would've been easy'.  He said: 'What was in Ocean Grove?'  'Servo', 'Which one, the Safeway?' You said: 'Nah, just a little fucking Caltex servo, there was only a small smoke cabinet, but it would've been easy, I reckon'.  This conversation reveals your intentions with respect to the Ocean Grove service station which you did break into on
13 December 2019.  When you were there, you stole over $18,600 in cigarettes. 

7In order to commit this burglary, you were in a vehicle that was stolen from a private house in Corio.  Telephone calls relating to this commenced around 3.20 am on 12 December, when you said you had a car.  You first described it as a Silver Pajero, but later corrected that to Land Rover Discovery.  You committed the burglary and theft at the Ocean Grove service station in the stolen Land Rover Discovery. 

8This car was later itself discovered at Fyansford completely burnt.  This conduct was part of the modus operandi of the criminal enterprise, that is stealing cars, using them in committing commercial burglaries and then burning them in the rural outskirts of Geelong.

9With respect to this stolen Land Rover, you are not to be dealt with for the crimes connected to breaking into the car owner's house or the arson, but rather theft on the basis that you were driving the stolen car when you committed the burglary. 

10It may be that with the regularity of car thefts, the courts have become a bit immune to the individual impact on the owners of having their car stolen. In this case, it is important to consider the relevant parts of the victim impact statement of the owner, whose loss of her car in the current circumstances had very significant impact.  She wrote:

'As I have mentioned before, I am a disability care worker, and one thing that is very important in this job is that we have a car.  Without my car, I cannot work.  I was unable to work for two months, and still work occasionally whenever I can borrow a friend's car.  I feed four mouths, as well as my own.  I am living off vouchers given to me by the government, even though I have a job, but no means to get to it.  I've lost one job already, where I used to work, as well as in a school kitchen, as I'm not able to go on a regular basis and have very few shifts because of it.  Till I get a car, this will continue, and getting a car is a long way away, as I have very little savings with the amount of work I get.  The reason for losing shifts in the disability work is that I couldn't travel to work and take my clients to their necessary appointments.  The most integral part of my job is to take my clients out of their homes to go to different places, such as to take them to appointments and go grocery shopping.  I still do not own a car, which impacts my earnings to date.'

11The victim impact statement of the owner of the small service station you burgled in Ocean Grove also brings into sharp focus, how small business owners suffer when there is a burglary and theft such as this.  The owners were two brothers.  They each prepared a victim impact statement.  One of them said:

'This crime has had ongoing issues for myself, my family, my brother and business partner, and also the people in the neighbourhood who witnessed this brazen crime'.

12He speaks of having difficulty sleeping.  He says that he was trying to run a small local independent business, they are not multinational, so every issue such as this hits hard. 

13His brother spoke of the emotional impact of the crime, that mentally affected him in a number of ways, causing anxiety and depression, relationships within the family got strained, he had to go to his general practitioner for antidepressants and sleeping tablets. 

14The other brother spoke about the social impact as ongoing, mentally, he could not work for about a month.  Every time he went to the service station, high anxiety would kick in. 

15Organised crimes targeting small businesses such as service stations is to be condemned.  They were brazen, planned crimes, one followed by the next.  The gravity and moral culpability are high, although as I have said already, you were not a leader or organiser, but one of the men doing as directed.  Nonetheless, each part or person within this organisation or enterprise played an important role.  As well as condemnation, what is most prominent is the need for deterrence to anyone minded to embark upon this sort of offending. 

16You, Mr Zorkau, are now 29 years old, but you are a man with a troubling criminal history, which commenced in significant numbers where you were age 23.  At the time of these offences, you were on two community corrections orders.  The second of those community corrections orders was imposed on
5 December 2019, that is only three days before your offending commenced with respect to these offences.  The earlier community corrections order was imposed in July and included with it a short gaol term. 

17These facts are aggravating features, and they emphasise the need for deterrence to you.  While you have been on remand for these offences, the earlier community corrections orders were brought on for breach proceedings in the Magistrates' Court.  A sentence of 60 days' imprisonment was imposed.  The effect of this was to reduce the pre-sentence detention available to you for this sentence, but I take into account the whole time that you have been in custody.

18Your prior offending involves many offences and the court appearances for burglary, dishonesty offences, driving, drug and weapon offences.  There have been short gaol terms, but also a number of community corrections orders imposed and breached, as well as a suspended sentence which was imposed and breached. 

19These lower my confidence in your capacity to rehabilitate.  You did receive a 12-month sentence in 2016, with a non-parole period of six months.  You were granted parole and completed it without being returned to prison.  You then had two years without offending before committing the offences that saw you placed on the community corrections orders that I have mentioned, as well as in December, committing these crimes that are before me. 

20You were born in Geelong, but both your parents were addicted to heroin.  Your parents effectively abandoned you around the age of nine.  You were thereafter cared for by your aunt and uncle.  They had a number of children to look after and the family environment was chaotic. 

21You went to school until age 16.  You moved into labouring jobs with various employers and on various worksites.  You started to use cannabis at the age of 17, and methylamphetamines from age 19.  You also have abused prescription drugs. 

22You fell back into drug use at the time of this offending.  You have now commenced on a methadone program in prison, which is providing you with some stability.  The more important question is how will you manage abstaining from drugs on your ultimate release?  That is a matter entirely up to you,
Mr Zorkau.  But I am concerned that unless you are able to abstain entirely and long-term from drugs, you will have difficulties in staying out of trouble.

23Your plea of guilty came early, much more so than the other co-accused, who still have matters before the Magistrates' Court.  You expressed remorse in a letter to the court, apologising to the victims, having read their victim impact statements.  That is an important matter.  Your plea of guilty means that your sentence will be less than it would otherwise would have been.  That is of greater weight, given that there has been the suspension of jury trials in the COVID pandemic. 

24I also take into account that gaol is much harder because of the restrictions imposed due to the COVID-19 pandemic.  Your counsel submitted that offences of this kind are routinely dealt with in the Magistrates' Court; that may be so.  But given the organised nature of these offences and that the co-accused would necessarily be committed to the County Court, the principle of having the same court deal with all offenders loomed larger. 

25But I do take into account, with respect to the gravity of these offences and your role, that there are much more serious examples of these crimes that come before this court, and indeed these sorts of cases are dealt with in the Magistrates' Court.  However, yours was part of an organised criminal enterprise. 

26I take into account your difficult upbringing and your early fall into drug use.  I do not consider your rehabilitation is forlorn, but the position is guarded at best.  You have done parole and stayed out of trouble for some time in the recent past, but you must seize the opportunity if granted parole again, to endeavour to permanently reform.

27Given proper weigh to these matters in mitigation going to your rehabilitation, together with the need for denunciation of your crimes, deterrence to you and to others and the need to protect the community from your criminal ways, I impose the following aggregate sentence.

28Before announcing the sentence, I make clear that in imposing an aggregate sentence, these offences are connected.  In doing so, I have, however, appropriately applied the principles of totality, as well as parsimony in respect of coming to the aggregate sentence that I have. 

29In respect to of Charge 1, the attempted burglary; Charge 2, the theft; Charge 3, the burglary and; Charge 4, the theft, I impose an aggregate sentence of two years and eight months, and I fix a minimum non-parole period of one year and 10 months. 

30I declare that you have served 197 days of the sentence I have just imposed.  That figure having been reckoned, I will make the declaration that I have made, I make that declaration on the records of the court so that prison authorities are left in no doubt that you have served 197 days of this sentence that I have imposed. 

31Had you pleaded not guilty to these offences and been found guilty of them, I would have imposed a sentence of four years and three months, with a minimum non-parole period of three years. 

32There is an application for disposal of a piece of clothing and I make that disposal order.  Is there anything else required?

33MR MOORE:  That completes the matter, Your Honour.

34MR de KRETSER:  No, Your Honour.  As Your Honour pleases.

35HIS HONOUR:  What I intend to do, Mr de Kretser, is to leave the meeting, so too will others, and my staff will assist you in having a discussion with Mr Zorkau.

36MR de KRETSER:  As Your Honour pleases.

37HIS HONOUR:  Thank you.

38MR de KRETSER:  Thank you.

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