IN THE COUNTY COURT OF VICTORIA	Revised
Not Restricted
Suitable for Publication	
AT LATROBE VALLEY
CRIMINAL DIVISION

CR-21-01660

THE DIRECTOR OF PUBLIC PROSECUTIONS		
		
v		
		
BRETT NEUBECKER		

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JUDGE:	HIS HONOUR JUDGE LAURITSEN	
WHERE HELD:	Latrobe Valley 	
DATE OF HEARING:	24 June 2022 	
DATE OF SENTENCE:	24 June 2022	
CASE MAY BE CITED AS:	DPP v Neubecker	
MEDIUM NEUTRAL CITATION:	[2022] VCC 1013		

REASONS FOR SENTENCE

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Subject:			CRIMINAL LAW 
Catchwords:	Theft – arson – parity with co-accused not relevant – high moral culpability – relatively serious examples of the offences – late plea of guilty. 
Legislation Cited:		Sentencing Act 1991; Sex Offenders Registration Act 2004.
Cases Cited:			R v Verdins [2007] VSCA 102; Worboyes v R [2021] VSCA 169.
Sentence:	9 months imprisonment followed by a 15-month Community Corrections Order.

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APPEARANCES:
	Counsel	Solicitors	
For the Crown	Mr B. Sonnet	Office of Public Prosecutions 	
			
For the Offender	Mr C. Oldman	Balmer & Associates 	

HIS HONOUR:
Introduction 
1	On 26 April of this year, before a different judge, you pleaded guilty to a charge of theft and a charge of arson.  The proceeding was then adjourned to the circuit starting next Monday, and with the assistance of your lawyers and the Director’s lawyers, it has been brought forward to today.  
2	The maximum penalties for these offences are 10 years' and 15 years’ imprisonment respectively.  
Circumstances 
3	On 7 August 2018, you drove to a quarry in Rosedale.  You possessed a CAT key and a two-prong master key.  You were accompanied by your then friend, Steven Powell.  You drove into the premises of the quarry through an open gate.  You then hid in the bush until it was dark.  
4	While Mr Powell waited in your vehicle, you entered a front-end loader belonging to the owner of the quarry.  You started it by using one or other of your keys.  You then used the loader to force open the doors of a shipping container.  You then stole a generator, a chainsaw, an air compressor, two oxy-acetylene bottles, a grease gun and two jerry cans, all belonging to the owner of the quarry.  You drove the loader through a locked gate to your vehicle.  With Mr Powell’s help, the property was put into your vehicle.  The value of these items was about $5,600.  They were not recovered.  These circumstances constitute Charge 1, the charge of theft.  
5	You then splashed the contents of a jerry can, which you had just stolen, and being either diesel fuel or petrol, inside the cabin of the loader.  You then set fire to a rag and threw it into the cabin.  A fire ensued.  You and Mr Powell drove away.  The loader was destroyed by the fire.  Its value at the time of its destruction was about $127,000.  These circumstances constitute Charge 2, the charge of arson.  
6	Seven months later, Mr Powell told the quarry owner, and then the police, of his and your involvement in the offending.  
7	On 26 March 2019, members of the police force executed a search warrant at your residence and seized certain items of property including the keys.  You were interviewed and gave 'no comment' answers.  You were released and later charged on summons.   
Criminal history 
8	Between 11 February 2011 and 14 February 2018, you have appeared in a criminal court on three occasions and were convicted of 15 offences.  Your first appearance in a court was far and away the most serious.  You received a sentence of five and a half years’ imprisonment with a non-parole period of three and a half years’ imprisonment.   
9	At the time of this offending the subject of these charges, you were the subject of a community correction order imposed on 14 February 2018.  This is, as the prosecutor points out, an aggravating feature of your offending.  
10	Since these offences, you have appeared in court on three occasions and convicted of 24 offences.  You have been sentenced to imprisonment twice.   
11	I note you are subject to the reporting requirements under the Sex Offenders Registration Act 2004 until 2026.  
Personal  Circumstances 
12	Much of the details of your life are taken from the report of the psychologist, Ms Fleming, and also the written submission of your counsel.  
13	You are now 34.  You were born in Frankston and raised in the Crib Point and Somerville areas.  You have a younger brother.   
14	Your parents separated when you were two.  Until you were 8, you lived with your father, whom you described as 'a drunken violent wreck'.  He was drunk frequently and was violent to you and your mother.  Your father re-partnered and you enjoyed a good relationship with your stepmother.  
15	You left home during your mid-teenage years and lived at your place of employment on French Island.  
16	You told the psychologist, Ms Fleming, your late teenage years and early adulthood was marred by allegations of offending, long court processes and imprisonment.  
17	Two years after your release from prison, your mother died suddenly from the effects of cancer.  Your mother’s home was lost as was your employment, and her death had a significant effect upon you emotionally.  
18	Your father and stepmother separated.  You lived with your stepmother until returning to your father.  This was good accommodation but ceased with your imprisonment over driving offences.  
19	You live at present at the Tooradin caravan park.  
20	Your formal education ended during Year 7 because of bullying, difficulty making friends and unsupportive teachers.  It has left you with difficulties in literacy.  
21	After leaving school, you worked on a fishing boat until about 15.  Then you worked as a labourer on a beef cattle farm for six years.  You then worked in timber milling, an assistant to a truck mechanic and truck driving.  The last was interrupted by your loss of licence.  Since regaining your licence, you work as a truck driver.  Imprisonment would probably mean the loss of this employment.  
22	You told the psychologist you are bisexual.  You were in a relationship with Mr Powell, lasting about six months and ending shortly after this offending.  You are not presently in a relationship.   
23	As a child, you were diagnosed as suffering from Attention Deficit Hyperactivity Disorder.  You were prescribed Ritalin but took it only for a short period.  
24	For more than two years, you have taken an anti-depressant medicine.  The size of the dose has increased to its present level.  Recently, you have taken an anti-psychotic medicine to help with sleeping.  The prospect of imprisonment disrupts your sleep.  
25	Years ago, you attempted suicide.  
26	Your treatment has been given by your general practitioner.  You have not ever been treated by a psychologist or psychiatrist.  
27	At 26, you started using methylamphetamine.  In recent times, your use of this drug was sporadic and you ceased in about April 2022.   
Psychologist  
28	Laura Fleming is a forensic psychologist.  At the request of your solicitors, she interviewed you on 10 May 2022.  
29	Because of what you told her and because of the matters raised by Mr Oldman this morning, I will quote paragraph 50 of her report and this is what she records you telling her: 
‘Mr Neubecker indicated that he intended to plead guilty to the charges as he felt he would not receive a fair trial based on his previous experiences and did not want to waste the time of members of the public with a trial. Mr Neubecker was aware that by pleading guilty he took responsibility for the behaviour and accepted it as part of his criminal record.’
30	Although Ms Fleming emailed psychometric tests for you to complete, they were not returned to her.  Accordingly, she derived her opinions from what you told her, how you appeared to her and what she gleaned from the documents given to her by your solicitors.  
31	She diagnosed you as suffering from ADHD, an adjustment disorder  with depressed mood and a Stimulant Use Disorder at a moderate level.  
32	Using a particular psychological tool entitled, 'Level of Service/Case Management Inventory', Ms Fleming assessed you as a moderate risk of re-offending.  
33	She made several recommendations for future treatment: 
(a)	referral to a psychiatrist to review your medicines and monitor the effectiveness of the medicines emerging from the review; 
(b)	psychological intervention, including intensive psychotherapy, to address your underlying mental health issues; and
(c)	individual counselling to address your drug and alcohol issues.   
Reference
34	Your current employer, Glen Willmott, wrote a reference on 23 June 2022.  It reads: 
‘I am the owner and operator of GW Contracting. I have operated this business for over thirty years and we specialise in trucking and motor transport for various industries in the Gippsland region.
I have known Brett Neubecker for the past 18 years and over that time he has worked for me in various positions.  Cumulatively he has probably worked for me for about 2.5 years.
Brett is currently employed as one of my truck drivers.  I have eight other employees in my business.  
I am aware of Brett’s criminal history and why he is before the Court today.  I have given Brett work because I find him to be a trustworthy individual and I believe that everyone deserves another chance.  He is a good driver and a hard worker.  I would gladly recommend him to anyone looking for a reliable and safe heavy vehicle driver.
The truck that Brett drives was acquired specifically for him to operate.  The acquisition of this truck has allowed me to expand my business.  If Brett is no longer able to work for me due to being imprisoned, I will most likely have to sell the truck as I cannot afford to have it sitting idle and the cost of finding another driver is very high at the moment.’
Discussion 
35	Section 5(1) of the Sentencing Act 1991 sets out the purposes for which sentences may be imposed, and both the prosecutor and your counsel have traversed those at least briefly.  They are: 
(a)	to punish the offender to the extent and in a manner which is just in all of the circumstances; 
(b)	to deter the offender or other persons from committing offences of the same or a similar character; 
(c)	to establish conditions within which it is considered that the offender’s rehabilitation may be facilitated; 
(d)	to manifest the denunciation of the type of conduct the offender engaged in; 
(e)	to protect the community from the offender.  
36	In most cases, one or more of these purposes are relevant.  In your case, each of those purposes is relevant to sentencing.  
37	My sentences should be just in the circumstances.  They should deter you and others from committing the same or similar offences, and in particular, I refer to the offence of arson.  They should manifest the denunciation of your conduct.  They should protect the community from you.  They should also establish conditions under which your rehabilitation will be facilitated.     
38	Section 5(2) of the Sentencing Act sets out matters to which I must pay regard, where relevant.   
Gravity of the offence 
39	No light is thrown upon your reason for committing these offences.  You used the loader to effect an entry into the container to steal property.  You then damaged the cabin of loader by fire and the loader itself.  You used diesel fuel or petrol which was present at the scene.  You did not bring those substances with you.  To that extent, the arson at least was not premeditated whereas the theft clearly was.  
40	The stolen property has not been recovered.  
41	Because of the manner in which the theft was committed and circumstances of the arson, both offences are reasonably serious examples.  I disagree with the prosecution categorisation of the gravity of the theft offence as being low.  
Culpability
42	Notwithstanding the view of Ms Fleming, your responsibility and culpability for these offences is high.  
Injury or loss
43	Kim McGill is the general manager A1 Asphalt Supplies Pty Ltd, the owner of the stolen property and the loader.  He made a victim impact statement on 7 June 2022.  Omitting the formal parts, it reads:
‘The financial stress placed on the company has been difficult. Not only having to replace the goods stolen of $ 5623.00 our insurance for the wheeled loader did not cover the entire cost of a replacement. Hence, we have been paying higher repayments for the past 3 years. Also, the time and expense that has been wasted since the offence with our two employees having to attend or connect to zoom meetings.’
44	I am not entirely clear what he means by that last sentence.  
45	Mr McGill attaches copies of two invoices to his statement.  One relates to the loader.  It appears to have been purchased in November 2017 for $127,545 inclusive of GST.  It was a second hand 2012 model.    
Current Sentencing Practice
46	As to current sentencing practice, your counsel referred me to nine sentences of judges of this court for offences involving arson.   
Verdins 
47	Your counsel relied upon principles or limbs 5 and 6 set out in the case of R v Verdins.  For your benefit, what is said by the Court of Appeal in that case is this in relation to limbs 5 and 6:
‘Impaired mental functioning, whether temporary or permanent (“the condition”), is relevant to sentencing in at least the following six ways:…
5.        The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
6.        Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.’
48	You rely upon the following paragraph from Ms Fleming’s report and your counsel read it out to me in full.  I will read out part of it:
‘…it is noted that imprisonment would likely weigh more heavily on Mr Neubecker than a person without his conditions. He is unlikely to receive specific treatment he requires in custody for his low mood or anxiety or ADHD at a frequency that may assist with change. Returning to custody will exacerbate his current symptoms.’
49	Although I suspect you will receive better attention in custody nowadays than Ms Fleming believes, limbs 5 and 6 are raised by what she says.  The application of those limbs result in a modest discount on the sentence you would otherwise receive.  
Rehabilitation 
50	Ms Fleming assessed your risk of re-offending as moderate.  So, in effect does the lady for Corrections.  Since the offending, you have been sentenced to imprisonment for both traffic and dishonesty matters, and also contravention of your community correction order.  
51	You have experienced imprisonment before.  You know what prison is like although you do not know what it is like at the present in the time of the virus.  My sentence for these offences should act to either deter you or at least to set you on the path of rehabilitation.  Nevertheless, I agree with the Director’s counsel's submission that your prospects of rehabilitation are in my words, uncertain, or in his words, guarded.  
Parity 
52	Your counsel raises the issue of parity.  On 21 July 2020, Mr Powell pleaded guilty to burglary and theft.  He was sentenced to a community correction order of 12 months' duration with conditions as unpaid community work, supervision, treatment and rehabilitation and judicial monitoring.  As part of the sentencing process, Mr Powell undertook to give evidence against you.  As the Director's counsel pointed out, such an undertaking can result in a very large discount on a sentence that would otherwise be imposed.   
53	Mr Powell informed the quarry owners and the police of his and your involvement in the offences and his information led to the state that you find yourself in today.  
54	Mr Powell remained in your vehicle when you used the loader to open the container.  He helped you transfer the stolen goods from the loader to your vehicle.  He did not take part in the burning of the loader.  
55	The differences between his offending and your offending and the aftermath of the respective offending are so great that the question of parity of sentences does not arise.  There is nothing in the sentence imposed upon Mr Powell to influence the sentences I will impose upon you.  
Guilty pleas 
56	Almost invariably, a plea of guilty deserves a mitigation of the sentence which would be otherwise imposed.  At the very least, it avoids the need for a trial, which saves time and expense.  It allows other trials to be heard earlier than would otherwise be the case.  It avoids the need for witnesses to give evidence at a trial.   Generally, although not necessarily in this case, this would be an onerous task.  
57	Due to the restrictions caused by the pandemic, the courts of this state have struggled to deal with criminal cases efficiently.  This has prompted the Court of Appeal in the case of Worboyes v R, a case to which your counsel drew attention, to explain that pleas of guilty are worthy of a greater discount of the sentence if made at this time.  It is worth quoting a passage from the court’s judgment which shows the emphasis it placed on pleas of guilty in this time of restriction.  Although your counsel referred to paragraph 39 of that judgment, I think paragraph 35 is the better exposition of the view of the court: 
‘As is abundantly clear, one of the pernicious effects of the current pandemic is that the lists of the criminal courts in this State have become severely congested.  Unacceptable delay in the disposition of criminal cases is endemic. [His Honour: and pausing there, it has taken four years for you to reach this stage.] Indeed, it is not an overstatement to say that the system of criminal justice in this State is in crisis, requiring a response from the courts.  We therefore consider that, whilst the courts of this State continue to labour under the adverse effects of the pandemic, a sentencing court should view a plea of guilty as carrying with it a greater utilitarian benefit than at other times and in other circumstances, and, concomitantly, as attracting an augmented mitigatory effect on sentence, simply because the plea will benefit the beleaguered administration of justice.  Given the unhappy state of the courts’ lists, the courts must, in an endeavour to alleviate the strain on the system, encourage those accused who are guilty to so plead.  Such encouragement must come from an actual and palpable amelioration of sentence.’
58	Your pleas of guilty were entered on the day set for the trial.  In terms of the criminal process starting with you being charged until a determination by a jury after a trial, your pleas were entered late.  In light of what you told Ms Fleming, your pleas of guilty are not evidence of your remorse.  In truth, you are not remorseful.  Nevertheless, absent remorse and the late timing, they deserve a significant discount.  
Disposition 
59	Your counsel submits a combined sentence is appropriate with your pre-sentence detention of 104 days being sufficient for the custodial element of that sentence.  The Director’s counsel submits a combined sentence is open but submits the pre-sentence detention is insufficient for the custodial aspect.  With that aspect of his submission, I agree.    
60	You have been assessed by a community corrections officer and we have heard her report and she has found you suitable for a community corrections order.  I will accede to the submission of your counsel insofar as I will proceed along the route of a combined sentence.  
Sentence
61	On Charge 1 and 2, theft and arson, I will sentence you to imprisonment for nine months to be followed by a community correction order of 15 months, subject to your consent, with these conditions:
(a)	a condition as to assessment and treatment in relation to drug addiction or a dependency;
(b)	a condition in relation to assessment and treatment in relation to mental health; and
(c)	a condition relating to programs to reduce re-offending.    
62	I will declare 104 days of you pre-sentence detention as time served under the imprisonment element of your sentence.  
S 6AAA Declaration 
63	If you had not pleaded guilty to these charges and had been found guilty after a trial, I would have sentenced you to 12 months’ imprisonment together with a community correction order of a duration of 18 months with these same conditions that I am attaching to this order.  You will need to attend upon the Frankston community corrections Service within two working days of the date on which you are released from prison.  
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