DPP v Williams [2024] VCC 1296

1. The full circumstances of your offending are set out in the typed Prosecution Opening,[7] which your counsel acknowledged could be treated as an agreed statement of facts for sentencing purposes. The basis on which you now fall to be sentenced was also discussed during the plea hearing. I have had regard to that opening and to those discussions when determining the appropriate sentence.
2. For present purposes, your offending can be briefly summarised as follows.

1. Shortly after 2:00am on 17 December 2023, you and a co-offender named Keney Kiro travelled in your vehicle to a Deepdene bathroom and supply business that you had formerly worked at for seven months in 2018, as a Business Development Coordinator. The business was co-owned by your former employer, Mark Van Keeken.[8]
2. Forced entry was gained to the rear courtyard by using an unknown tool to cut the padlock to the rear gates after which a pinch bar or similar object was used to force open the rear door to the business.
3. Various offices, filing cabinets and drawers were searched. The items stolen included personal loan documents relating to Mr Van Keeken, various power tools, cash, customer information documentation, two Apple MacBook computers, three mobile phones, assorted bottles of alcohol, forklift keys and numerous 'Alive' branded body lotion kits.
4. A wheelbarrow from the business was used to convey the stolen items to your vehicle.
5. The total value of the stolen items was $34,407.
6. It would seem that gloves were likely worn during the commission of this burglary and theft as one was later found during a later forensic examination of the crime scene undertaken by police.
7. The circumstances as just described form the basis for the offences of burglary and theft alleged in Charges 1 and 2 on the indictment, respectively.
8. On 21 December 2023, your co-offender pawned a circular saw stolen during the burglary at Dandenong Cash Converters for $300.

1. At approximately 12:45pm on 17 January 2024, you and the same co-offender travelled in your vehicle to Mr Van Keeken's home address in Mooroolbark.
2. After parking nearby, the two of you forced entry by unknown means to a rear bungalow on the property and then ransacked those premises. After gaining access to Mr Van Keeken's gun safe, two firearms were stolen; a 12 gauge Beretta shotgun and a 22 Marlin magnum rifle. The taking of those firearms is the subject of the offence of theft of firearm, alleged in Charge 4 on the indictment.
3. The two of you entered and exited the property several times to remove stolen property, including a guitar and a backpack containing fishing equipment. After you drove your vehicle to the front of the property, the two of you then stole further items, including two Stihl chainsaws, a Stihl hedge trimmer, an Apple MacBook Air, an Apple mobile phone, an electric beard trimmer, a set of house keys and the keys for a number of motorcycles and a Landcruiser vehicle.
4. The total value of the items stolen from Mr Van Keeken's property was approximately $10,000.
5. The theft of those items in the circumstances just described forms the basis for the burglary and theft offences alleged in Charges 3 and 5 on the indictment, respectively.
6. When Mr Van Keeken discovered what had occurred at his property later that day, he reported the matter to the police.
7. The CCTV footage obtained from a neighbouring property depicted your vehicle at Mr Van Keeken's address and you and Mr Kiro entering and exiting the property.
8. Later that day, you attended at Ferntree Gully Cash Converters where you pawned one of the stolen chainsaws and the stolen hedge trimmer for a total of $500. Your conduct in falsely identifying yourself as the lawful owner of those items to obtain cash from that business forms the basis for the offence of obtaining property by deception alleged in Charge 6 on the indictment.

1. Investigating police soon identified a strong connection between the two burglaries, including by the use of your blue Hyundai i30 vehicle at each location.[9]
2. On 7 February 2024, you were intercepted by police while driving that vehicle in Capel Sound. After being arrested for unrelated matters, a police search of the vehicle located various housebreaking implements and your mobile phone.
3. When police searched your home, they located and seized a number of items which Mr Van Keeken was able to later identify as having been stolen from him, including:
   • A Stihl chainsaw, a black backpack containing fishing gear and a Yarra Valley Water bill in Mr Van Keeken's name, all of which had been stolen during the Mooroolbark burglary;
   • An 'Alive' branded gift box which had been stolen during the Deepdene burglary; and
   • Various keys which had been stolen during both burglaries.
4. During a search of your vehicle, police also located and seized an Apple MacBook Air laptop, and a number of Bunnings business cards and various personal documents in the names of other people, all of which forms the basis for the summary offence of dealing with property suspected of being the proceeds of crime alleged in Summary Charge 8.
5. A forensic analysis of your mobile phone undertaken by police revealed that it had been connected to phone towers in the vicinity of the two burglaries at the relevant times, that you had searched Mr Van Keeken's address on realestate.com.au at the time of the Mooroolbark burglary and that you had searched for information about covert furniture and where to hide firearms on the following day. Also found on your phone were photographs of a number of the items stolen from Mr Van Keeken, including his driver's licence, his firearms licence and his guitar, as well as the passwords for his computers and mobile phone.
6. I note that when police sought to interview you about these offences, you exercised your legal right and declined to answer any questions.

1. You were then charged and remanded in custody, where you have remained ever since. The total period of pre-sentence detention is therefore 196 days. A declaration to that effect will be made shortly.

1. I note that on 2 April 2024, police arrested your co-offender at his home. When interviewed, he made full admissions in relation to his involvement in both burglaries. Whilst he has been charged, he is yet to be prosecuted as he later failed to appear at court and is now the subject of an outstanding bench warrant.
2. I have mentioned Mr Kiro's status only for the sake of completeness as no issues of parity arise given that he has not yet been found guilty of, let alone been sentenced for, his part in this offending.

1. Mr Williams, I note that you pleaded guilty at a very early stage of these proceedings, for which you are entitled to and will receive a significant discount in your sentence.[10]

1. In a victim impact statement declared on 29 July 2024,[11] Mr Van Keeken sets out in clear and powerful terms the significant and ongoing negative impact that this offending has had on him.
2. In the days and weeks following the burglary on his business premises, he felt violated, unsafe, powerless and emotionally drained.
3. When his private address was burgled a month later, he experienced a heightened sense of fear, anxiety and vulnerability, and felt socially isolated.
4. He has become untrusting and hypervigilant and has experienced nightmares and trouble sleeping. He has installed additional security measures to deter others and try and regain control.
5. Even now, many months later, he still feels vulnerable and remains concerned by the fact that the firearms are yet to be located by police.
6. And, not only has he had to go to the trouble and inconvenience of replacing many of the stolen items, but he has also suffered a financial loss as the stolen items were not fully covered by insurance.
7. None of what Mr Van Keeken says comes as any surprise to this court as it is well known that offending of this nature, particularly when committed at private properties, very often engenders a sense of personal violation in its victims.

1. Mr Williams, I note that you have a limited but nonetheless relevant criminal history, which is confined to the 12 month period between September 2022 and October 2023, when you were aged between 37 and 38.
2. During that period, you appeared in court on three occasions and were sentenced in respect of a total of 11 offences.
3. On 22 September 2022, you were found guilty and placed on a 12 month Bond for possessing methylamphetamine and a controlled weapon and for carrying cartridge ammunition.
4. Then, on 14 April 2023, you were fined without conviction for a further offence of possess methylamphetamine.
5. And most recently, on 12 October 2023, you were convicted and placed on a

12 month community correction order for offences of entering private place without authorisation/excuse, commit indictable offence whilst on bail and dishonestly undertake in the retention of stolen goods. That order included therapeutic and rehabilitative focused conditions, including supervision and assessment and treatment in relation to your drug use and mental health. 6. It is of some note that the offending for which you now fall to be sentenced was committed within just two to three months of being placed on that community correction order, a matter about which I will say more later in these sentencing reasons.

1. I now turn to consider your personal circumstances, Mr Williams.
2. Your background has been helpfully summarised in your counsel's written submissions and is also referred to in the report of the forensic psychologist,

Ms Amy Brandler,[12] and to a more limited extent in the reports of the orthopaedic surgeon, Mr Devinder Garewal,[13] and the rehabilitation and pain medicine consultant, Dr Saleem Khan.[14] I have had regard to the contents of those submissions and reports. 3. You were born and raised in Melbourne and are the youngest of two children in your family. Your father is an engineer and your mother is a hospital administrator. You continue to enjoy strong family support. You parents have visited you regularly in custody and attended your court hearings. 4. Whilst very social and sporty, you struggled academically, something you attribute to the Attention Deficit Disorder you were later diagnosed with in adolescence. 5. In your youth, you were very fit and did not drink alcohol or use drugs. When you were only 13, the family moved to England as you had been scouted to play for the English Premier League. Unfortunately, that dream was dashed when you suffered a serious knee injury at age 17, after which the family returned to Melbourne. 6. You have been married to your English born wife Louise for six years. You have two sons, now aged 3 and 5. 7. Your incarceration for these offences necessitated the selling of the family home. 8. Depending on the length of any custodial sentence imposed, your wife and children may have to return to England to stay with her parents for a while. 9. You are a carpenter and concreter by trade but have been unable to work for the past four and a half years due to a serious workplace injury you sustained on

10 October 2019, in which your hand was crushed. Consequent upon that injury, you developed a second injury (post surgery) of Chronic Regional Pain Syndrome ('CRPS'). You have also been diagnosed as suffering from severe anxiety and depression related to your CRPS condition. Your capacity for suitable employment is likely to be restricted for the foreseeable future. Up until your remand, you were receiving compensation from WorkSafe by way of weekly payments. Your entitlement to a lump sum payment is still to be determined. 10. You were medically examined by the orthopaedic surgeon on 19 December 2023 for the purposes of assessing the nature and extent of your workplace injury and work capacity. Dr Khan assessed you on 11 January 2024 for the purposes of providing an independent opinion. The prognosis is poor for your condition as even with appropriate treatment there are usually acute exacerbations which may be precipitated by changes in health, including mood disturbance, illness, anxiety, stress and depression. 11. Before your remand, you were on a significant pain management regime. You were experiencing partial pain relief as the result of using a spinal cord stimulator and various prescribed medication. You have experienced difficulties in receiving an adequate level of pain relief medication and in being able to have your spinal cord stimulator set at the appropriate level whilst you have been on remand, which has added to the already onerous nature of your custodial experience. 12. You were assessed by the clinical psychologist Ms Brandler on 25 July 2024. In her opinion, you meet the criterion for Persistent Depressive Disorder and Generalised Anxiety Disorder. In her view, these mental health concerns existed at the time of your offending and developed as a consequence of your declining health resulting from your workplace injury and in the context of you developing a drug addiction. You were introduced to methylamphetamine in 2020 and used the drug to counteract the adverse effects of the pain medication you were taking,[15] and to improve your ability to cope with the debilitating pain you were experiencing. 13. You attempted suicide in mid-2023 when the seriousness of your drug addiction and antisocial behaviour caught up with you. However, you have since regretted taking that action and are now strongly opposed to the idea. In short, you want to be around to support your wife and two young sons.

1. Your counsel was able to rely on a number of matters in mitigation on your behalf, Mr Williams.
2. You pleaded guilty at a very early stage. By taking that course as and when you did, you have saved the community from the cost of a trial and spared the victim Mr Van Keeken from the ordeal of giving evidence.
3. I accept that you have taken personal responsibility for what you did and feel ashamed and remorseful for your conduct.
4. Whilst by no means an excuse or justification, your offending can be seen to have occurred in a particular context. You needed to obtain money to buy the drug 'ice' which you had been using in order to better cope with the ongoing pain you were experiencing as a result of your injury and CRPS condition and so as to try and ameliorate the unpleasant sedative effects of your prescribed medication.
5. Offending in such a context can, for example, be contrasted to offending in some other contexts, such as where an offender is motivated by pure greed.
6. I accept that you have found and will continue to find the custodial experience a very difficult one. Until your remand for this matter, you had no experience with the harshness of the prison environment. You seem to be ill adapted to those environs and have already been targeted and assaulted by some other inmates, including on an occasion that occurred very recently.[16] This has led to you being moved within the prison system and also spending some periods in isolation or protective custody. Furthermore, I have no doubt that your already compromised physical and mental health increase and exacerbate what is already a difficult situation.
7. Notwithstanding those difficulties, it is to your credit that you have done your best to put your time in custody to good use. In addition to undertaking a six week drug and alcohol harm reduction course,[17] you have also completed a number of other vocational and educational courses. You have also benefited from the counselling you have been receiving while on remand.
8. You are fortunate to have the strong and ongoing support from your wife and your parents, which I accept is a protective factor in terms of any risk assessment.
9. Whilst this offending represents an escalation in the seriousness of the offending that you have been prepared to engage in to date, your prior criminal history is confined to a period of just over 12 months, commencing in your late 30s. That is quite unusual and tends to support the submission that you have been undergoing a very difficult few years since you sustained your workplace injury. As a corollary, I accept that if you are able to be assisted to deal with those underlying issues, including through better pharmacological management and via further counselling and treatment for your drug use and mental health problems, your already good prospects of rehabilitation would be enhanced and your risk of reoffending would be reduced. In this context, I also note and accept that your first custodial experience has been a salutary one and likely to have already achieved a significant measure of personal deterrence in your case.

1. This court must also have regard to the objective gravity of your offending,

Mr Williams. 2. Whilst the 10 year maximum penalty for burglary, theft and obtaining property by deception illustrates the inherent seriousness of such offences, the even higher

15 year maximum for theft of a firearm warrants treating any such offence very seriously. 3. And, the summary offence of deal with property suspected of being proceeds of crime is by no means a trivial or minor offence type given that Parliament has seen fit to allow for a term of imprisonment of up to two years. 4. There are a number of serious aspects to the offences that you committed,

Mr Williams. 5. It is a significant matter in aggravation that all of those offences were committed in breach of a community correction order that you had received only a short time earlier for offences that included dishonesty and ammunition related conduct. 6. Furthermore, you were also on some form of bail at the time you committed each of the offences for which you now fall to be sentenced, although not to the same degree for all offences. The relevant bail chronology reveals that on 6 October 2023, you were bailed for a number of offences said to have been committed on that day and the previous day,[18] and then, on 4 January 2024, approximately

three weeks after being placed on the community correction order, you were bailed for two further offences that were said to have been committed on that same day.[19] Accordingly, in terms of your current offending, you committed the first burglary and associated theft offence (Charges 1 and 2) while on the first bail and the remaining offences (Charges 3-6 and RSO Charge 8) while on both sets of bail. 7. All of the offences charged on the indictment, save Charge 6, were committed against your former employer and involved utilising some of the knowledge that you had gained while a trusted employee. 8. All of those same offences were committed in company. 9. And, save for the theft of firearm charge, all of those same offences were pre-meditated and involved planning. 10. The second burglary and the two associated theft offences were committed against the same victim that had been subjected to similar offending a month earlier. 11. Each of the burglaries involved forced entry. 12. The value of the items stolen during the first burglary was significant. 13. Whilst not involving the victim's house, the second burglary took place on his private property. 14. There is no evidence to suggest that you were aware of the presence of the firearms before the second burglary was committed and so, in that sense, the theft of firearm charge can be viewed as opportunistic. However, that offence is to be considered more serious as it relates to two firearms and because those firearms are yet to be located and remain in circulation in the community. 15. And, the impact on the victim of the offences the subject of Charges 1-5 on the indictment has been substantial and ongoing. 16. In my view, neither you nor your co-offender should be viewed as being the architect of the offending against Mr Van Keeken. Each of you played a significant and important role in that offending. In your case, Mr Williams, you provided the information about Mr Van Keeken and his business and you supplied the vehicle that was used to ferry you and your co-offender to and from the burgled premises and to carry away the many items of stolen property. 17. Whilst it is not suggested that you are responsible for where the stolen firearms ended up, I do not accept that you had no interest in them once they were stolen. This point is amply demonstrated by the fact that on the day after they were stolen, you searched online as to how such items could be secreted, for example in furniture. 18. I consider each of the remaining two offences, obtaining property by deception and dealing with property suspected of being the proceeds of crime, as being neither a minor nor a serious example of its type. Those offences were certainly not trivial and each involved a discreet and separate act of criminality on your part. 19. When viewed globally, your offending is to be seen as troubling and serious. It involved a relatively high degree of moral culpability on your part and warrants strong condemnation.

1. The principles of general deterrence, denunciation and just punishment need to be emphasised in this sentencing exercise.
2. The nature and seriousness of your offending, including the fact that it occurred while on a community correction order and bail, is such that specific deterrence and protection of the community must play some part, although I accept that such considerations are of lesser importance in the sentencing calculus.
3. Your age and prospects of rehabilitation are important considerations. There are various and in some respects competing considerations to have regard to when making any assessment of your prospects.
4. On the one hand, there is your age and confined period of prior offending, your efforts at self-improvement whilst on remand, the difficulty of your remand experience to date and its likely deterrent effect, and your strong family support.
5. On the other hand, there is the serious and troubling nature of your current offending, including the fact that it occurred soon after being placed on a community correction order and while on bail for offending to which you have since pleaded guilty and for which you will be sentenced on 29 August 2024. There is also the fact that you have yet to benefit from a lengthy and targeted period of drug treatment and counselling while in the community. It would be naïve to think that you have already successfully rehabilitated. The task of overcoming a serious drug addiction is a lifelong and difficult one. On top of that, you have serious physical and mental health conditions which are themselves challenging and which make you vulnerable to self-medicating with illicit drugs. In that regard, it is imperative in my view, that you be assisted in obtaining professional counselling and treatment for those issues if and when you are released on parole. In the end, all relevant matters considered, I have concluded that your prospects are good.
6. The totality principle also needs to be considered in the factual context raised by this case. Whilst some of the offences were committed on different dates, others were committed in the course of a single criminal episode. Each of the offences involves a separate and distinct level of criminality on your part and there are a number of victims overall. In the end, whilst it is appropriate to impose a moderate level of cumulation for some of the charges, a relatively significant level of concurrency overall needs to be accorded in order for the ultimate sentence to be a fair and just one.

1. Your counsel properly acknowledged the seriousness of your offending and ultimately conceded that the only appropriate sentence open in this case was one involving a head sentence with a non-parole period. However, relying on the many matters in mitigation, she urged the court to keep any such sentence to the minimum and to fix a disparate non-parole period that would have the practical effect of making you eligible for release on parole in the not too distant future.
2. For their part, the prosecution agreed that the only appropriate sentence was one involving a head sentence with a non-parole period.

1. In my view, nothing other than a head sentence with a non-parole period is open in this case given the nature, extent and seriousness of the offending for which

Mr Williams must now be sentenced. 2. To do otherwise would fail to recognise and give proper weight to a number of important and relevant sentencing factors, including denunciation, general deterrence and just punishment. Furthermore, to impose any different and lesser sentence would, in my view, simply fail to justly punish Mr Williams for his serious criminal conduct. 3. After considering all of the relevant circumstances in your case, Mr Williams, including the fact that this is your first custodial sentence, I have concluded that it is both open and appropriate to fix a relatively disparate non-parole period as compared to the head sentence. The sentence I impose will be what I regard to be the minimum that the justice of the case requires. Whether, and if so when you are released on parole will ultimately be a matter for the Adult Parole Board.

1. Mr Williams, after having carefully considered, balanced, and weighed the relevant sentencing considerations in your case as best I can, I have decided to sentence you as follows.
2. In respect of each charge, you will be convicted and sentenced to the following terms of imprisonment.
3. On Charge 1, burglary, 2 years.
4. On Charge 2, theft, 2 years.
5. On Charge 3, burglary, 2 years.
6. On Charge 4, theft of firearm, 2 years.
7. On Charge 5, theft, 12 months.
8. On Charge 6, obtain property by deception, two months.
9. On Summary Charge 8, dealing with property suspected of being proceeds of crime, one month.
10. The sentence of 2 years imposed on Charge 2 will be the base sentence.
11. The following periods are to be served cumulatively on that base sentence and on each other: six months on Charge 3 and six months on charge 4.
12. The total effective sentence is therefore 3 years' imprisonment.
13. In respect of that sentence, I fix a non-parole period of 18 months.

1. Pursuant to s 18 of the Sentencing Act 1991, I declare that you have served a total of 196 days pre-sentence detention, not including today's date, in respect of this sentence. I order that such period is to be reckoned as already served under that sentence and that the declaration and its details be entered in the court records.

Section 6AAA indication

1. Pursuant to s 6AAA of the Sentencing Act 1991, I indicate that but for your plea of guilty, you would have been sentenced to a total effective sentence of 4 ½ years' imprisonment with a non-parole period of 2 ½ years.

1. I make the forfeiture order in the terms sought by the prosecution, pursuant to s 32 of the Confiscation Act 1997. In exercising that discretion, I have had regard to the fact that your counsel did not oppose the making of such an order.

1. Are there any other matters that counsel need to raise at this stage in relation to either the sentence or the sentencing reasons, starting with you, Ms Jones Williams?
2. MS JONES-WILLIAMS: No, Your Honour. Thank you.
3. MS HOLMES: No, Your Honour, thank you.
4. HIS HONOUR: Thank you. Will you be conferring with Mr Williams about this matter in the cells below?
5. MS JONES-WILLIAMS: I will, Your Honour.
6. HIS HONOUR: Yes, thank you. Mr Williams may now be taken downstairs, thank you. Mr Williams, there is a limit to what can be done at this stage in terms of speaking to people in the court.
7. OFFENDER: Thank you, Your Honour.
8. HIS HONOUR: Thank you, Mr Williams.
9. Please adjourn the court sine die.

[2] Charges 1 and 3, laid pursuant to s 76(1) of the Crimes Act 1958 (Vic).

[3] Charges 2 and 5, laid pursuant to s 74(1) of the Crimes Act 1958 (Vic).

[4] Charge 4, laid pursuant to s 74AA(1) of the Crimes Act 1958 (Vic).

[5] Charge 6, laid pursuant to s 81(1) of the Crimes Act 1958 (Vic).

[6] Summary Charge 8, laid pursuant to s 195 of the Crimes Act 1958 (Vic).

[8] Mr Van Keeken provided a statement to police in which he stated that the accused was known to him and had previously worked for his company several years ago.

[9] Whilst ordinarily used by the accused, that vehicle was registered in the name of his father.

[10] In paragraph 53 of her written submissions (exhibit 1), defence counsel sets out the relevant chronology in this respect.

[13] Dated 19 December 2023 (exhibit 5).

[14] Dated 11 January 2024 (exhibit 4).

[15] Mr Williams was also being prescribed medication for ADHD.

[16] The circumstances of that assault are described in a defence email dated 20 August 2024.

[17] In her written submissions dated 8 August 2024, defence counsel indicated that Mr Williams had almost completed this course.

[18] Including but not limited to burglary and possess controlled weapon.

[19] Negligently deal with proceeds of crime and commit indictable offence while on bail.